The Children's Aid Society of Ottawa v. A.T. et al., 2012 ONSC 4261

COURT FILE NO.: FC-08-468

DATE: 2012/07/20

ONTARIO

SUPERIOR COURT OF JUSTICE

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

A.Y., born […], 2000 and E.T., born […], 2008

BETWEEN:

THE CHILDREN’S AID SOCIETY OF OTTAWA

Applicant

– and –

A.T., the mother

H.Y., the father of A.Y.

H.S., the father of E.T.

Respondents

George MacPherson, for the Applicant

A.T., the mother, unrepresented

H.Y., the father of A.Y., unrepresented

H.S., the father of E.T., unrepresented

Allison Lendor, the Children’s Lawyer

HEARD: July 16, 2012

REASONS FOR DECISION

kANE j.

[1] The children, A. and E. are 12 and 4 years of age respectively. They have been in the custody of the Children’s Aid Society (“the Society”) since May 22, 2012, when their mother, in the children’s presence, was arrested in Guelph, Ontario on a criminal charge for breach of a term of probation for having contacted someone she was by order prohibited from communicating with. This was the mother’s second charge and conviction for breaching this same prohibition.

[2] Due to her arrest on May 22, 2012, the children were delivered by police to the Children’s Aid Society in Guelph who kept the children and then returned them to the Society in Ottawa on May 28, 2012.

[3] A.’s father resides in Toronto and supports the return of the children as requested by and to Ms. T. He sees his son every second weekend. Mr. S. is absent in the life of the children, uninvolved in these proceedings and noted in default.

[4] Before the court today is:

(1) A motion by the Society for a with prejudice temporary care and custody order with access to the mother three times per week. This motion is brought under an amended Application for Crown wardship with the ultimate view of adoption, and

(2) A motion by Ms. T. for the immediate return of the children to her under the supervision of a Children’s Aid Society including her move to Toronto or London, Ontario, where she had hoped to pursue her education.

[5] Subject to the provisions below, the motion of the Society is granted and Ms. T.’s motion is dismissed.

[6] There is every reason, based on past history, to believe that with proper medical treatment, Ms. T. can be reunited with her children. That outcome however is dependent upon the success of a psychiatric medication program recently commenced.

[7] Subsequent to filing her motion herein seeking the supervised return of her children, Ms. T. on July 13, 2012 under the Mental Health Act, R.S.O. 1990, c. M.7 voluntarily entered into a Community Treatment Order and Plan (CTO and CTP). The CTO states that under extreme stress, Ms. T. has periods of poor judgment leading to police and CAS involvement and without continuing treatment or supervision; she is likely, due to mental disorder, to cause serious bodily harm to herself or suffer mental deterioration.

[8] Under the CTP, Ms. T. has agreed to attend appointments with her Ottawa psychiatrist and take psychiatric medication as required, failing which she may be apprehended and brought to the hospital for treatment.

[9] Between July 2, 2012, and July 16, 2012, following self admission, Ms. T. has remained in hospital as part of the above treatment program.

[10] On July 12, 2012, Ms. T., in a meeting with her psychiatrist and the Society became upset as her plan was to move to London to attend the University of Western Ontario in September and wanted her children returned. This would have terminated Ottawa psychiatric involvement then in place. After discussion, Ms. T. on July 13, 2012, agreed to the CTO and the CTP which she now relies upon in support of her commitment to treatment and the immediate return of her children.

[11] Ms. T. loves and is devoted to her children. Her reoccurring periods of depression requires definitive medical identification and treatment as the children are suffering in the interim and have been in and out of Society and foster care now on three separate occasions totalling some 412 days and counting.

[12] Ms. T. is very intelligent. She currently holds a Master’s degree in computer science and business administration. She has been accepted in three doctoral programs in Ottawa, Toronto and London commencing in 2012. There are no concerns about her ability as a parent to these children except for the stability of her mental health.

[13] Ms. T. acknowledges that she has a mental health issue but desperately wants the return of her children which this court understands. The absence of her children is one of the principal sources of the extreme anxiety leading to poor decisions and involvement of police and the Society. Family litigation with a father of one child in 2011 and criminal charges are the other two sources of stress.

[14] Return of these children to their mother now would eliminate that source of stress. That catch 22 however does not address the primary responsibility of this court which is what is in the best interests of the children and her mental health.

[15] The primary interest of the children is that their mother now receives psychiatric analysis and identification of the appropriate psychiatric medication program required to stop these occasional breaks in their mother’s ability to provide them with ongoing, consistent and stable care.

[16] I agree with Ms. T. that, if she is stable and mentally healthy on an ongoing basis, the children are better off with her than in their current foster home. What Ms. T. must come to understand is that her mental health must improve and become stable and it is that, versus the speed of return of her children, which must become her first priority and reality. The past cycle of periodic mental deterioration to the point that she begins making inappropriate decisions for the children has to be broken. Failing her success recovery of her mental health, the options of this court as to the future well-being of these children diminish.

[17] The Society brought its first application based on concerns as to the mental health of the mother in February of 2008 at the time of the birth of the youngest child E. Both hospital officials and family members of Ms. T. expressed concern as to her psychotic behaviour. Ms. T. initially refused psychiatric assessment.

[18] Ms. T. in June, 2008 was diagnosed as suffering from post partum depression, thought disorder and paranoid thinking. She refused psychiatric medication.

[19] Ms. T. was re-admitted to hospital again in July, 2008. She had occasions of screaming and was not eating. She began a program of anti-psychotic and anti-depressive medication which she continued until March of 2009. Her then psychiatrist in July, 2008 expressed the opinion that she was suffering from severe depression and was incapable of caring for her children.

[20] Under supervision of the Society, the children were returned to their mother in October, 2008. Ms. T. returned to work in January, 2009. Ms. T. took herself off medication in March, 2009 which the doctor agreed was appropriate. The Society thereupon closed its file.

[21] There were no further problems in the mother’s care of these children until April, 2010 when the children were, for a second time, apprehended due to concerns that the mother was leaving them unattended. Her psychiatrist at that point expressed the opinion that Ms. T. needed a period of treatment and was not then capable of caring for her children. Ms. T. received out-patient psychiatric treatment and medication between April and July, 2010. The children were returned to her care, under a supervisory order to the Society in August, 2010. The supervisory order matured in November, 2010.

[22] At the instigation of the Society, Dr. MacLean of the Family Court Clinic performed an assessment of Ms. T. He recommended in September, 2010 that Ms. T., with the assistance of the Society, had the capacity to properly care for the children.

[23] Ms. T. stopped taking her medication in January, 2011. Her doctor in March, 2011 agreed such medication was no longer required.

[24] The Society agreed in September, 2011 that their involvement should be terminated as there were no concerns as to Ms. T.’s ability to care for her children.

[25] In October, 2011, the Society commenced an application to terminate its supervision. Understandably, Ms. T. was anxious for this to happen. For reasons which are not clear to this court, that termination application was adjourned several times over the next three months into December, 2011, ostensibly due to delays in serving the father(s).

[26] The Society then required as a condition of withdrawing that it receive an updated psychiatric report. Ms. T. obtained and presented a positive psychiatric report as to her state of mental health on December 11, 2011. Those delays increased anxiety to Ms. T. which was counter-productive to her mental health.

[27] Ms. T., as a Catholic, has been very involved in her church and apostolic activities. She has worked closely over the years with members of the clergy in church activities. She worked very closely with one priest in particular as her spiritual adviser. This priest was transferred to Guelph in 2011. Notwithstanding this move, Ms. T. continued to consult with this priest after his move, at a frequency which he began not to accept. These consultations included both religious matters and court documents.

[28] Ms. T. went to see the priest in Guelph in January, 2011 concerning her family law litigation. He objected to her previous frequent emails, telephone calls and to coming to see him based on his previous request that she stop contacting him. He complained that Ms. T. had been pestering him since April, 2010.

[29] Upon her arrival at the rectory, the priest told Ms. T. to leave. He alleged that she put her foot into the doorway and attempted to force her way into the house. The priest thereupon contacted Guelph police. Ms. T. was then arrested and charged with criminal harassment. Ms. T. was released upon an undertaking to not communicate with the priest thereafter but only after the police forced her to undergo a psychiatric assessment. That psychiatrist recommended her release and that she consult with her psychiatrist upon her return to Ottawa.

[30] The Guelph psychiatrist agreed to provide the Society with a reporting letter as to his observations. He subsequently withdrew his agreement to give such a reporting letter after repeated phone messages and attempts by Ms. T. to contact him. He received in excess of ten messages from Ms. T.

[31] Ms. T. began a new round of medication in March, 2012.

[32] The Society obtained a new six-month supervisory order of the mother’s care of the children in April, 2012.

[33] On April 20, 2012, Ms. T. was in the Guelph area and breached her undertaking by attempting to contact the priest. She was charged criminally for that breach, spent three days in jail until the matter was dealt with and was sentenced to 18 months’ probation.

[34] On May 22, 2012, Ms. T. went to the Toronto and London area to canvass housing and school prospects for herself and the children. She stopped at the priest’s church in Guelph with her children. It was late, so she parked in the church parking lot and slept over night in the car with the children.

[35] She went into the church with the children in the morning with the intention of speaking to the priest. Police were contacted. Ms. T. was again arrested, charged and held in custody several days until disposition of this new charge.

[36] Guelph CAS thereupon took the children into custody and returned them to the Society in Ottawa on May 28, 2012. The children have remained in de facto custody of the Society in a foster home, without court authority, until the argument of these motions.

[37] The above facts substantiate why the mother must prioritize the treatment and recovery of her mental health ahead of her understandable wish to have her children back immediately. Ms. T., due to her mental health, has on occasion since January, 2012 placed her personal wishes ahead of the care and stability of her children.

[38] This court needs assurance that her mental health and medication requirements have been fully assessed and treated to a level of certainty that the protection of these children is assured. The first injection in this current treatment program does not satisfy this court as to the mother’s level of recovery and health.

[39] Accordingly, these children, on an interim basis, will remain in the custody and care of the Society for three months. That better ensures the current interim stability of these young children.

[40] Ms. T. will be entitled to interim access at the rate of three supervised visits per week. Mr. Y. shall be entitled in the interim to access with his son A.Y. every second weekend.

[41] The interim motion of Ms. T. is accordingly dismissed.

[42] This matter shall proceed to a settlement conference on September 24, 2012, at 14:00 hours.

Kane J.

Released: July 20, 2012