SUPERIOR COURT OF JUSTICE - ONTARIO

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 E.C. born […] 2008 and D.C. born […], 2007.

RE: Children’s Aid Society of the United Counties of Stormont,

Dundas & Glengarry v. C.L.-C., J.L. and E.T.

COURT FILE NO.: 10-1175
DATE: 20110501

BEFORE: Justice Martin James

COUNSEL:

Cathy Legault, Counsel for CAS

David Barnhart, Counsel for C.L.-C.

Stephane Perreault, Counsel for E.T.

DATE HEARD: April 25 th , 2012

E N D O R S E M E N T

[ 1 ] The Children’s Aid Society of the United Counties of Stormont, Dundas and Glengarry (herein after referred to as the Society) has filed an amended Status Review Application for both children, E.C. and D.C. The Respondent mother, C.L.-C., has made a motion for temporary care and custody of both children pending the hearing, likely in June. Alternatively, she applies for daily unsupervised access leading to a permanent placement.

[ 2 ] Regarding E.C., age 3, a final Order issued on May 11 th , 2011 placing her in the care of her father, E.T., pursuant to a Supervision Order for a period of six months. The Status Review proceeding that originated in November, 2011 is still pending and is set for trial in June 2012. The Society is advocating that the father have custody with access by C.L.-C. at his discretion.

[ 3 ] Regarding D.C., age 5, who was also part of this November, 2011 Status Review, he was placed with his mother under a six-month Supervision Order and his father, J.L., was noted in default.

[ 4 ] On March 6 th , 2012, D.C. was apprehended and placed in foster care. The Society is seeking Crown wardship.

[ 5 ] On April 18 th , 2012, C.L.-C. delivered a Notice of Motion seeking temporary care and custody of both children.

[ 6 ] With respect to D.C., C.L.-C.’s position is that the decision of the Society to remove D.C. from her care was based on flimsy, unreliable evidence and that there is no evidence that establishes D.C. was suffering harm or damage. She argues that the Society’s position is based on innuendo and faulty logic. Pursuant to s. 51(2) of the Child and Family Services Act (C.F.S.A.), since D.C. was in the care of his mother when apprehended, he ought to be returned to his mother unless pursuant to subsection 3, 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 returning him to his mother, with or without conditions.

[ 7 ] With respect to E.C., the legal considerations applicable to her interim care and custody are different than in D.C.’s case. Pursuant to s. 64(8) of the C.F.S.A ., E.C. is to remain in her father’s care under the existing Supervision Order until the upcoming trial, unless the Court is satisfied that E.C.’s best interests require a change.

[ 8 ] The Society’s position regarding D.C. is that he should not be returned to his mother’s care. Counsel for C.L.-C. says the Society’s concerns can adequately be addressed by a Supervision Order and he relies upon the decision of Blishen, J. in Children’s Aid Society of Ottawa-Carleton v. T ., 2000 21157 (ON SC) , [2000] O.J. No. 2273 for the proposition that the Society must demonstrate that the risk of harm to D.C. could not adequately be addressed with suitable conditions in a Supervision Order. The mother says the Society’s evidence is weak and in any event, the risks can be reduced by imposing conditions. She also notes that the trial is only about two months away.

[ 9 ] The evidence at paragraphs 84, 88, 92, 93, 96, 96, 97, 102 and 103 of the Affidavit of Ms. Hawkins sworn March 8 th , 2012 (Tab 6), is relevant to the issues on this motion. The Society has several concerns regarding C.L.-C.’s parenting but they predominately focus on the possibility of drug use, lack of co-operation regarding testing and exposing the children to contact with J.L. Drug use and domestic violence were important factors leading to the finding that D.C. was in need of protection. There is merit to the concern that D.C. may be negatively affected by both exposure to contact with Mr. L via C.L.-C. and the consequences of their dysfunctional relationship.

[ 10 ] On my view of the evidence, the cumulative effect of D.C.’s comments that suggest he has been spending time with his father when contact was prohibited, C.L.-C.’s frequent and ongoing absences from her home, the neighbour’s comment that she is never home and another neighbour’s comment at J.L.’s residence that “they fight all the time” or similar words, when taken together and added to the Society’s other concerns, constitute reasonable evidence that C.L.-C.’s lifestyle choices create a likely risk of harm for D.C.

[ 11 ] It is not necessary or advisable to delay intervening until there is evidence of actual harm to D.C.

[ 12 ] Counsel for the Respondent mother contests the suggestion that she is spending time with J.L. at his residence and points to the fact that there was no evidence of children spending time there when the police did a walk through on March 6, 2012. This evidence, however, is not conclusive and there is evidence to the contrary.

[ 13 ] In my view there is sufficient credible evidence to support a determination that D.C. should not be returned to the temporary care of his mother pending trial. I am not satisfied that C.L.-C. will adhere to the Society’s conditions such that his return to her care is warranted. The positive factors that were present last fall when the Supervision Order was made were not evident in the weeks leading up to the apprehension in March.

[ 14 ] In addition, the evidence suggests that D.C. is doing well in the care of C.L.-C.’s sister and all his immediate needs are being met.

[ 15 ] Regarding E.C., only C.L.-C. is seeking to change her interim care and custody. The concerns regarding D.C.’s care also apply to Emily. E.T. has demonstrated that Emily is doing well where she is. The Society supports the status quo in E.C.’s case. E.C.’s best interests do not require that she be moved to her mother’s care for the next few months pending trial.

[ 16 ] In the result, the motion is dismissed and the present arrangements will remain in place pending trial or further order of the court.

Justice Martin James

RELEASED: May 1, 2012

COURT FILE NO.: 10-1208

DATE: 20110501

SUPERIOR COURT OF JUSTICE - ONTARIO 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 E.C. born [..], 2008 and D.C. born […] , 2007. RE: Children’s Aid Society of the United Counties of Stormont, Dundas and Glengarry v. Charlotte Lajoie-Cooper, James Edward Labelle and Eric Trudell BEFORE: Justice Martin James COUNSEL: Elizabeth MacLennan/ Cathy Legault, Counsel for CAS David Barnhart, Counsel for Charlotte Lajoie-Cooper and James Edward Labelle Stephane Perreault, Counsel for Eric Trudell ENDORSEMENT Justice Martin James

RELEASED: May 1, 2012