ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

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

COURT FILE NO.: C1795/98-03
DATE: December 12, 2012

BETWEEN:

Children’s Aid Society of London and Middlesex

Joseph Belecky for the Society

Applicant

• and -

B.M.S. and L.S.

Toenie Hersch for B.M.S. L.S. not appearing

Respondents

HEARD: October 10, 11, 12, 15, 2012

TEMPLETON J.

[ 1 ] .1J. and J.2 are deeply troubled children. When J.1 was 8 and his sister was just 6 years of age, they became Crown wards. In the care of the Children’s Aid Society, they have experienced stability, support and consistency but, sadly, their serious emotional and behavioural challenges have not abated. Fortunately, their current foster mother is prepared to care for them until they are adults and intensive assessment and treatment is now underway.

[ 2 ] When the Court ordered Crown wardship in June 2009, the trial judge also granted access to the biological mother, B.M.S. This access consisted of unsupervised visits every second Saturday with overnight visits to occur when considered by the Society to be in the best interests of the children.

[ 3 ] On September 30, 2010, the Court restricted B.M.S.’s access to supervised visits only but on February 4, 2011 removed the restriction of supervision and allowed unsupervised day visits every second Saturday from 10:30 a.m. to 6:00 p.m.

[ 4 ] On August 19, 2011, the Society again sought supervised access and was granted that order. Since August 2011, B.M.S. has seen the children in a supervised setting every second week for 1.5 hours. The Society now seeks to have that order changed to supervised access every second month.

[ 5 ] B.M.S. seeks unsupervised access as previously ordered in June 2009.

[ 6 ] Both of the children see their biological father regularly. The Society reports no concerns in this regard.

The Test

[ 7 ] The determination of an appropriate access order in this case must be based on the best interests of the children.

[ 8 ] The challenges the children face and their deeply and concerning behaviours are varied. Their conduct ranges from lying to stealing; and hoarding; and bedwetting; and sexualized behaviour. The children require constant oversight or supervision. Fortunately, their foster mother has not only demonstrated a willingness and commitment to deal with the emotional and behavioural problems of both children, she has also demonstrated an ability to respond appropriately as the issues arise.

[ 9 ] Both children have formed very deep emotional bonds with their foster mother who is prepared to care for them in the long term. It is essential for the wellbeing of both children, therefore, that this placement succeed.

The Positions of the Parties

[ 10 ] The position of the Society is that B.M.S. is interfering with and/or undermining the boundaries set for the children by the foster mother and her authority, as a result of which the ongoing placement is at risk and the children are negatively impacted.

[ 11 ] The Society relies on the evidence of J.2’s anxiety, bedwetting, hoarding, sexualized behaviour, lying, stealing, interest in adult clothing, bullying and isolation from friends in support of its position. In addition, J.1 has been caught stealing, lying and hoarding, and has also demonstrated sexualized behaviour.

[ 12 ] The Society complains that, in the context of these challenges, B.M.S. has countermanded clear direction, undermined the role and parental authority of the foster mother; and has failed to cooperate with the routine and discipline of the foster mother’s household, all of which has had a detrimental effect on the children and has been contrary to their best interests.

[ 13 ] In this regard, the Society relies on the evidence that B.M.S. has given the children “junk food,” despite having been told repeatedly that she is not to do this; she has allowed J.1 to play with a toy gun and then posted a photograph of him pointing it at the camera (as if to shoot the onlooker) on Facebook; she has provided food to the children to take with them to the foster home; she has opened Facebook accounts for the children without telling anyone; she has provided a cell phone to J.1 without telling anyone and has engaged in secret communication with him. B.M.S.’s defiant and secretive attitude has not changed over the past six years according to the Society. She has repeatedly ignored warnings or contravened directions as a result of which ongoing access which is not closely monitored would be detrimental to the children and contrary to their best interests. She has had more contact with the children than anyone else has known and has caused the children to participate in her deception of both the Society and the foster mother.

[ 14 ] It is B.M.S.’s position that there is no evidence of any nexus between the serious emotional and behavioural deficits of the children and her contact with them or her presence in their lives. She asserts that she has abided by the conditions imposed in the past. She has not been able to participate in the lives of these children because no one has invited her to do so.

[ 15 ] Access was unsupervised for 15 months after the Crown wardship order and has been supervised for over a year since but nothing has changed as far as the children are concerned. There has been no improvement with respect to their mental or emotional health or their behaviour – they are still lying, stealing, bedwetting and hoarding. In other words, there is no perceived or actual connection between the problems the children are experiencing and on which the Society relies for the order sought and B.M.S.’s supervision of them. The emotional and behavioural problems have existed in the context of both supervised and unsupervised access.

[ 16 ] In addition, no one has observed how the children act or behave in their mother’s care. There is no evidence that they lie or steal in her presence. Her poor judgment with respect to posting pictures of the children on Facebook does not mean to say that she is a bad parent.

[ 17 ] The children also have a positive relationship with their grandmother. Unsupervised access that would allow a continued development of this relationship, as well as with B.M.S., would be in the best interests of the children.

Analysis

[ 18 ] In my view, it is reasonable to infer from all of the evidence before the Court, the following findings:

a) the foster mother cares for both of the children deeply;

b) the foster mother is able to provide long term stability, commitment and support to the children;

c) the foster mother is able to ensure compliance with and appropriate adult response to the requirements necessary to meet the challenges presented by both children;

d) B.M.S. cares for both of the children deeply;

e) B.M.S. continues to have difficulty relinquishing a parental role in the lives of the children and still seeks to present to them and to others, the existence of an ongoing parent/child relationship between them;

f) B.M.S. has conducted herself in a manner that undermines the authority of the Society and/or the foster mother;

g) B.M.S. has conducted herself in a manner that has created stress for the children in their home with their foster mother.

[ 19 ] There is no doubt that the lifestyles of B.M.S. and the foster mother differ, as do their expectations of the children’s behaviour and their perceptions of what is appropriate and acceptable concerning even less important issues such as clothing. For example, what is considered as “pretty dress” for one mother is considered by the other mother to be a Hallowe’en costume. These differences have created tension and stress for one, if not both children, on an ongoing basis.

[ 20 ] I must agree with counsel for B.M.S., however, that there is little, if any, reliable evidence before me that would support the finding of a connection between B.M.S.’s conduct and the serious emotional and behavioural challenges the children face. There is evidence that J.2 becomes more anxious and presents some behavioural changes prior to or immediately after a visit but the extent of these changes do not appear to be cause for such serious concern as to limit access to the extent sought by the Society.

[ 21 ] On the other hand, I am not at all satisfied that B.M.S. understands the nature of the very limited role she plays in the lives of her children. B.M.S. must learn that she has to continually earn the right to see the children and that she does not have parental authority over them. She must learn that there has to be prior consultation with respect to: (i) any and all gifts she gives them; (ii) activities in which she involves them; and iii) food she sends home with them. She has to learn to adapt to and comply with the routine, discipline, structure and lifestyle imposed by the foster mother whether she agrees with it or not and whether she likes it or not. Her sphere of influence over the children has been and must continue to be relegated to the periphery if these children are to have any chance of successfully meeting and conquering their challenges.

[ 22 ] The stress and tension inevitably created when B.M.S. gets involved is borne solely by the children, particularly when she fails to disclose to or cooperate with the Society in advance of what she intends to do with, say or give to the children.

[ 23 ] On the basis of all of the evidence, I am of the view that the children continue to benefit from regular contact with B.M.S. but closer supervision is required until such time as B.M.S. learns to fully cooperate and communicate with the Society in advance of any and all decisions concerning the children.

[ 24 ] It is in the best interests of both children that they be allowed to see B.M.S. without anxiety or tension before or after the visit.

[ 25 ] For these reasons:

a) Every six months, the foster mother and each child will create a list of appropriate gifts B.M.S. can buy the children for special occasions. This list will be sufficiently detailed to allow B.M.S. options with respect to retailer and price. B.M.S. will choose gifts only from this list.

b) There will be absolutely no contact or communication between B.M.S. and the children or either child, either directly or indirectly between visits except as may be approved in writing by the Society in advance.

c) No gifts of food or any other article or item will be given by B.M.S. to either child except for the special occasions listed. B.M.S. is specifically restrained from giving the children or either of them any treat, candy, food or other gift at any time unless it has been pre-approved by the Society or the foster mother.

d) B.M.S. is specifically restrained from distributing, copying, circulating or posting any pictures of the children or either of them and/or any information concerning them in print or electronically.

e) B.M.S. is specifically restrained from discussing the foster mother, the foster home or any subject matter concerning the life of the children in the foster home with the children or either of them.

f) B.M.S. will have supervised access to each child alternately every two weeks for four months. That is, she will see J.2 on her own one week in a supervised setting and J.1 on his own two weeks later in a supervised setting and the access will continue with each child alternately every two weeks for a period of four months.

g) Should B.M.S. have complied with all aspects of the orders contained herein during the entire initial four month period, the access will change such that she sees both children together in a supervised setting every two weeks for a period of four months.

h) Should B.M.S. have complied with all aspects of the orders contained herein at the conclusion of the eight months (taking into account (f) and (g) above), B.M.S. will have unsupervised access to both children once a month and supervised access to the children once a month for a period of four months.

i) Unsupervised access in accordance with the order of Marshman J. dated June 2009 will then be implemented at the conclusion of the schedule set out herein if there has been compliance with all aspects of this order.

j) The Society will, within 30 days hereof, set out a list of expectations in writing for B.M.S. to follow and shall review that list with her so she understands what is expected of her in addition to this Order, if anything.

k) All agreements between the Society and B.M.S., with respect to expectations, will be reduced to writing and signed.

l) The Society will involve B.M.S. in all assessments and treatment plans for the children as may be required by the professional therapists or doctors involved with the children.

“Justice L. Templeton”

Justice L. Templeton

Released: December 12, 2012

COURT FILE NO.: C1795/98-03
DATE: December 12, 2012

ONTARIO SUPERIOR COURT OF JUSTICE FAMILY COURT BETWEE N: Children’s Aid Society of London and Middlesex Applicant - and - B.M.S. and L.S. Respondents REASONS FOR JUDGMENT TEMPLETON J.

Released: December 12, 2012