SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FC-09-250-06
DATE: 20120425

RE: The Children’s Aid Society of Simcoe County, Applicant

AND:
J-L.Y., M.M. & M.L., Respondents

BEFORE: The Honourable Madam Justice L.M. Olah

COUNSEL:
Judith Weeks, for the Applicant
Patricia File, for the Respondent, J-L.Y.
Martin Prost, for the Respondent, M.M.
David Zeldin, for the Respondent, M.L.

HEARD: March 5, 2012

ENDORSEMENT

Introduction

On an amended temporary care motion, the Society seeks to change custody and access, pending the trial or resolution of the matter.

Background

[ 1 ] The parties involved in this matter are:

(i) J.-L.Y – the biological mother of the children, L.J.Y., A.A.Y. (the twins) both born […], 2008, and J.J.L, born […], 2010.

(ii) M.L. – the biological father of the child J.J.L, and the mother’s most recent partner.

(iii) M.M. – the recently identified biological father of the twins, so identified in February, 2010.

[ 2 ] The Society had historic concerns about the development of the children and their health, namely:

1. history of domestic violence;
2. Mother’s difficulty handling the children;
3. problems with the development of the children;
4. problems with the children’s speech;
5. the medical fragility of the children;
6. J.J.L. and L.J.Y.’s failure to thrive.

[ 3 ] Justice Wood made a temporary order on September 02, 2011, as follows:

(i) the twins are to be placed in the care of the mother J.-L.Y and her mother B.Y. in the home of the mother J.-L.Y from Monday morning at 9 AM to Thursday evening at 5 PM, each week; and in the care of the father and his mother jointly from Thursday evening at 5 PM until Monday morning at 9 AM, each week, subject to the society supervision as set out below.

(ii) The child J.J.L. is to remain in the temporary care of the society until the kin placement investigation for D.L.(paternal grandmother) has been completed. If that assessment is positive, J.J.L. is to be placed in her care subject to society supervision.

(iii) If the assessment is negative, or is not completed within two weeks, the matter is to be returned to court on the first court date that the court sits in Midland following the decision or cut off date.

(iv) Whether the child is in care or in the care of the D. L.( paternal grandmother) J.J.L. is to have unsupervised access in the home of J.-L.Y and M.L., Saturday morning to Sunday evening each week. This is to continue unless there is a definitive diagnosis of abuse from the SCAN team at Sick Children's Hospital.

(v) The society is to convene a case conference with all caregivers present as soon as possible to work out terms of temporary plan of care that will ensure that the various players are clear as to who will be responsible for what. Until that is done, plans of care in place prior to apprehension will remain.

(vi) The society may attend at any home where the children are residing unannounced and shall be admitted immediately.

(vii) Placements to occur by Friday, September 9, 2011.

(viii) Adjourned to October 11, 2011 for case conference.

[ 4 ] Subsequently, the child J.J.L was placed in the care of the paternal grandmother, subject to the weekend access as provided by Justice Wood’s temporary order; and the twins were placed in the care of the Mother and Father, as reflected in Justice Wood’s order, on a one-half week about basis.

[ 5 ] On September 26, 2011, the Society worker received a call from J.J.L.’s paternal grandmother, reporting that the mother and M.L. contacted her on September 24, 2011 to report that the child J.J.L. went limp without explanation. They also reported the J.J.L. had been crying so hard that he stopped breathing. The mother confirmed that J.J.L. had been taken to the hospital over the weekend again presenting with a rash, and reported a number of possible explanations for the rash, one of which was a viral infection.

[ 6 ] On September 26, 2011 the child J.J.L. had an appointment with Dr. Gordon who examined the child. The doctor noted some “Protecia” on J.J.L’s shoulder and behind his ear. Pictures were taken of these marks and Dr. Gordon determined to consult with Dr. Shouldice, Director of the SCAN unit, at the Hospital for Sick Children in Toronto. After Dr. Gordon consulted with Dr. Shouldice, the child J.J.L. was admitted to hospital in order to complete x-rays, a CAT scan and blood work. Also, J.J.L. was to be referred to the asthma clinic.

[ 7 ] Later in the day, Dr. Shouldice reported that the lines which appeared on J.J.L.’s face were called "linear protecia" as the lines were smooth and parallel to one another, allegedly caused by force from a hand.

[ 8 ] As a result of the above information, the worker contacted the Midland police station and initiated a police investigation of the injuries to the child J.J.L.; and, as a result of the concerns regarding J.J.L., it was determined that both the twins and J.J.L. were to be apprehended.

The Twins

[ 9 ] Despite the Mother’s concerns of unsanitary conditions at the Father’s home as well as his ongoing drug use, initially, the society supported Justice Wood’s direction that the twins continue their significant access with their father, M.M. subject to supervision by the paternal grandmother.

[ 10 ] The paternal grandmother was cautioned to ensure that there were no animals in her home as per Justice Wood's request. The grandmother’s response was to the effect that, as there was no order in regards to the animals, she felt it unfair to require their removal as the animals did no harm to the children. Essentially both M.M. and his mother refused to get rid of the three cats and two dogs, despite being advised that one of the twins experienced pneumonia and that she had not gained any significant weight.

[ 11 ] Despite the fact that the twins were placed in foster care, for one-half of the week, given this refusal to provide a healthy housing environment for the twins by the father M.M. and the paternal grandmother, the Society developed a concern about the twins’ ability to thrive in his care.

[ 12 ] These concerns about the Father’s care were exacerbated by the events that followed in February, 2012.

[ 13 ] On February 24, 2012, as a result of concerns about who was caring for L.J.Y., the society worker attended at M. M.’s home and was not permitted into the home, requiring police assistance.

[ 14 ] Upon entry to the home, they found M.M. hiding in the laundry room under a sheet. The home appeared cluttered and dirty. The cat litter was filled with cat feces and feces were found throughout the basement floor, with large bags of garbage all around the basement. Further, drug paraphernalia and marijuana residue were located and were in plain view and accessible to the child L.J.Y. who was located in the bedroom. The upshot of this attendance was that the father's brother was charged and the child was removed from her father’s home. Subsequently, a hair sample test for the child L.J.Y., was completed by MDS labs reflecting a positive finding for marijuana. The child L.J.Y. was removed from the care of the father and paternal grandmother.

[ 15 ] As a result of these events, the twins continue in the care of their foster parents and Society requests that M.M.’s access be supervised and therapeutic.

J.J.L.’s Care After Apprehension

[ 16 ] J.J.L.’s care has continued in the home of his paternal grandmother, subject to supervision by the Society and access to his mother and his father , supervised by the Society.

Position of the CAS

[ 17 ] The assessment of the society is that it is in the best interests of the three children, to be placed in care the society for the following reasons:

1. The child J.J.L. has suffered a second suspicious injury which has resulted in the investigation as to its origins. Both these injuries have occurred while in the care of the mother and his father, M. L. In total, the CAS commenced three investigations as a result of suspicious injuries to the child J. since August 2010. The CAS has verified all three investigations.

2. On February 3, 2012, Dr. Shouldice’s final report indicated that J.J.L.’s first set of injuries were not accidental and were caused by impact, forcible grabbing/squeezing, or friction.

3. On December 01, 2011, The Mother was assaulted by M. L., who was charged.

4. The Mother and M. L. had not paid for their hot water bill for several months, raising concerns about their housing stability.

5. The police commenced a criminal investigation as a result of the injuries to the child, J.J.L.

6. The twins are considered to be at risk of harm due to the unexplained injuries to J.J.L.

7. The child L.J.Y. had not gained any significant weight and actually lost weight while in the care of her parents for the month of September, 2011.

8. The society is not supporting a plan to place the twins in the care of the paternal grandparent at this time as she has not demonstrated a consistent ability to cooperate with the society and the conditions outlined Justice Wood’s order.

9. The Society argues that all 3 children appear to be thriving and gaining weight while in the care of the foster parents and J.J.L’s paternal grandmother.

Mother’s Position

[ 18 ] The injuries to the child J.J.L. are not conclusively identified by Dr. Shouldice. His final report requires cross examination. With respect to the failure to thrive issue, the Mother religiously attended all appointments to address this issue and was managing the children’s diets well, until the children’s apprehension. She has distanced herself from M. L.; is taking an upgrading course, and wishes the return of the children to her home, where she asserts, she will provide the children with a home, free of violence. In addition, she asserts that the unexplained injuries to J.J.L should not be the basis of the apprehension of the twins, neither of whom exhibited signs of “protecia”.

M. L.’s Position

[ 19 ] As J.J.L. is currently placed in the home of the paternal grandmother and her partner, and is doing well in this placement, J.J.L.’s father supports the Society position that the child J.J.L. continue to reside with the paternal grandmother , subject to the Society’s supervision.

M. M.’s Position

[ 20 ] M. M., the belatedly identified Father of the twins, has now commenced an upgrading course, in order to obtain employment. He proposes that the twins be returned to his care under his Mother’s supervision, and that the children reside with him for ½ of the week as per the previous temporary order of Justice Wood.

Conclusion

[ 21 ] Although there is some difficulty with the wording of Dr. Shouldice’s report, the injuries to the child, J. raise concerns about parenting by the mother and father, which requires strict monitoring, especially since the child J.J.L. was in the parents’ care when his injuries occurred. Nevertheless, Dr. Shouldice’s report requires scrutiny and cross examination to ascertain the cause of the injuries. As well, it is necessary to identify the cause of the child J.’s crying to the point of not breathing and going limp.

[ 22 ] All three children have presented with multiple medical issues, inadequately addressed by the parents while the children have been in their respective care, such as: pneumonia, foot and mouth disease, failure to thrive, asthma.

[ 23 ] In addition, the parents’ personal life has been turbulent, distracting the parents from properly caring for the children. This relationship turbulence prevented the Mother and M.L. from properly caring for their needy children. As well, the Father of the twins relegated the care of the children to his mother and, on occasion to his brother, in circumstances where the twins were subject to an unhealthy environment which may have exacerbated their asthma, and frequent chest infections.

[ 24 ] The Mother needs to upgrade, undertake personal counselling to avoid engagement with males who are abusive, and take parenting courses to address the multiple needs of her children.

[ 25 ] M. M. needs to upgrade, become responsible for his economic well being, address the issue of his probable addiction to marijuana/drugs, and take a parenting course to understand the developmental and health needs of the twins.

[ 26 ] M. L. needs to take an anger management course, counselling to address his abusive nature and a parenting course. And, if the Mother and M. L. are to reconcile, then they too, must undertake partner counselling to avoid the relationship turmoil that they have imposed on the children.

[ 27 ] Although, the cleanliness of the respective homes, is not a major factor in determining the ability of the respective parents to properly parent their young children, in this case, given the health history of the children, all three – M. M., the Mother and M. L., have to “step it up a notch”, and maintain a healthy environment for the children, free from smoke, drugs, dirt, animal feces, and animals.

[ 28 ] Although it appears that the Mother is working hard to improve herself to parent the 3 children, she has a way to go to convince the Court that she can maintain a home for the children free from physical and emotional harm befalling the children.

[ 29 ] Since the turbulence of the September 26 – 29 events, it appears that the children are settled, gaining weight and there has been no reoccurrence of the “protecia”.

Discussion of the Law

[ 30 ] In assessing the evidence, I must do so pursuant to s. 51(6) of the Child and Family Services Act .

[ 31 ] The Mother’s counsel argues that I rely on the decision of Graham J. in CAS Simcoe v. B.J.B. and D.C. wherein Justice Graham relied on a two stage process in relation to a s. 51(6) application. Namely, that I first determine whether there has been a material change in circumstances; and, secondly, that I determine whether there are reasonable grounds to believe that there is a risk that the child may suffer harm that cannot be adequately protected by a supervision order.

[ 32 ] I have some concerns with such two stage approach, given the fact that neither s. 51(6) nor s. 51(3) of the CFSA specifically refer to a “material change in circumstances”. The Society must satisfy the Court at each stage of its involvement about the risk that the child is to suffer regardless of whether a material change in circumstances occurred.

[ 33 ] In this case, all involved knew that the children had asthma, that the children had weight issues, that the children had failure to thrive issues; however the confluence of events between September 26 – 29, 2011, that affected firstly, J.J.L., and subsequently the twins, gave rise to a greater concern about the risks that the children were likely to suffer; and as such, the Society had an obligation to remove the children from the source of the risks at the time they occurred.

[ 34 ] If I am wrong in this analysis, even after a consideration of the first “threshold issue” – the material change of circumstances, a material change occurred by the heightened risk to the children as a result of the rash incidents, Dr, Gordon’s assessment, Dr. Shouldice’s assessment, the children experiencing significant health challenges while in the care of the mother – pneumonia, foot and mouth disease, petechiae, loss of weight, and the potential for the children’s presence during domestic violence.

[ 35 ] With respect to the father, M.M., his and the paternal grandmother’s refusal to abide by Justice Wood’s order to permit access to the child in their home, the home being in an unhealthy state, the presence of marijuana in the home resulting in the child’s positive testing for marijuana, the refusal to remove all the animals in face of a direction to do so for the health of the children, all point to negative material changes.

[ 36 ] At present, it is my assessment that all three children are at risk of harm in the care of the parents, and that such a risk cannot be adequately addressed by terms of a supervision order.

Ruling

[ 37 ] Accordingly, I make the following:

1. An order, varying the order of Justice Wood, dated September 2, 2011, to place the children L.J.Y., born […], 2008 and A.A.Y., born […] , 2008 in the temporary care and custody of the society, pending disposition of the status review application.

2. An order that L.J.Y. and A.A.Y. have access to M.M., at the discretion of the society with respect to frequency, duration, location, and supervision

3. An order that L.J.Y. and A.A.Y. have access to J-L.Y. and M.L. at the discretion of the society with respect to frequency, duration, location, and supervision.

4. An order that J.J.L. have access to M.L. and J-L.Y. at the discretion of the society with respect to frequency, duration, location and supervision.

5. The child, J.J.L., to continue to be in kinship placement with the paternal grandparents, Donna Legris and Richard Maurice.

Costs

[ 38 ] In the event that the parties cannot agree as to the Costs of this motion, they may each submit a 2 page, typed submission to the Judge’s secretary in Barrie, and file copies of such costs submissions with the administrative staff, within 14 days of the release of this decision.

OLAH, J.

Date: April 25, 2012