SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: 458/09

DATE: 2012Dec20

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 K.L. born […] 1998 (female) and M.L. born […] 2002 (male).

RE: The Children’s Aid Society of the County of Lanark and the Town of Smith Falls, Applicant

AND:

P.L., Respondent/father

L.E.D. and C.A.D., Respondents/maternal grandparents

BEFORE: The Honourable Mr. Justice Gary W. Tranmer

COUNSEL: Nicola Edmundson, Counsel for CAS

Francis Aheto-Tsegah, Counsel for the father, P.L.

L.E.D. and C.A.D., appearing in person

HEARD: November 23, 2012 at Perth

ENDORSEMENT

NATURE OF THE PROCEEDING

[ 1 ] P.L. applies under section 65.1(4) and (5) of the Child and Family Services Act for leave to make application for a review of his children's status. Leave is required under the Act because the children have been in continuous care for at least two years with their kin placement, who are their maternal grandparents.

BACKGROUND FACTS

[ 2 ] The Applicant, born […], 1962, is the biological father of the two children. The mother was stricken by and suffered from brain cancer, commencing most seriously in June of 2007. Tragically, she died August 3, 2012.

[ 3 ] The children are K, born […], 1998, and M. born […], 2002.

[ 4 ] The parents separated in July of 2003. The children lived with their mother from that point and had access with their father.

[ 5 ] The maternal grandparents, L.E.D. and C.A.D., born […], 1942 and […], 1948, respectively, took the mother and children in to live with them on a full-time basis, commencing on or about June 17, 2007. This was as a result of the deterioration in the health of their mother. Since that point in time, the grandparents have been the primary caregivers of the children. This situation continues up until the present time.

[ 6 ] In June of 2008, the grandparents contacted the CAS requesting financial help and support with their care of the children.

[ 7 ] On June 13, 2008, a Temporary Care Agreement was signed that placed the children in the interim care and custody of the Children's Aid Society with access to their father, the Applicant. The children were left in the care and custody of their maternal grandparents.

[ 8 ] In March of 2009, the Applicant expressed interest in gaining custody of his children. He met with the CAS who set out goals that he needed to accomplish in order for them to agree for him to take the children into his permanent care. He did not meet their goals. An affidavit prepared by the CAS worker in June of 2009 sets out the concerns around the Applicant's level of supervision of the children as well as his lack of understanding of child development.

[ 9 ] The Applicant signed an Agreed Statement of Facts on June 12, 2009. In that document, the Applicant agreed that he had not found a suitable apartment, that he had not looked into schooling for his son, that there were several incidents where his supervision of the children was not acceptable, that he demonstrated a lack of understanding of child development and age-appropriate responsibilities and that he had not consistently provided the children with the medications when they were with him. In addition, he proposed that he separate the children and that only K., come live with him. He agreed that he had not met the goals set out by the CAS. He agreed with the opinion that for the children to be separated from their mother, worry about her health and well-being and not have the support of and stable living environment that they experienced with their grandparents would not be supportive to their emotional health.

[ 10 ] Accordingly, an Order dated July 16, 2009 was made whereby the children were made wards of the Children's Aid Society for a period of 12 months with access to the Applicant at the discretion of the CAS.

[ 11 ] In December of 2009, the children's mother was hospitalized. She never returned home. The children remained in the care of the grandparents. In January of 2010, Mrs. D. advised the CAS that she did not think it would be in the children's best interests to have their mother return home as the house and the children had been so calm and they were now able to do things such as play games at night. Accordingly, the mother spent the last days of her life at the Perth Community Care Centre.

[ 12 ] The Applicant was supportive of the stability and commitment made to the children by their grandparents and in January of 2010, he advised the CAS that he was in agreement with the Society's plan to seek crown wardship. He did not want the children's placement with their grandparents to be disrupted.

[ 13 ] On August 5, 2010, the court ordered that the children be made wards of the crown and placed in the care and custody of the CAS, who in turn continued the kin placement with the maternal grandparents.

[ 14 ] The Applicant has had access throughout this time as a result of the agreement and support of the CAS and the grandparents and the willingness of the children. This has included alternate weekends and full-time during the summers of 2006 and 2007, and two weeks each summer, one week at Christmas and one week at March break each year.

[ 15 ] Sadly, the children's mother died August 3, 2012.

[ 16 ] The father brought his application for leave shortly thereafter.

THE CHILDREN

CAS perspective

[ 17 ] K. is the youngest member ever to qualify for the Perth citizen’s band. She plays the saxophone. She has successfully transferred to high school, attending the Perth and District Collegiate Institute. She is a member of the high school band and practices one time each week.

[ 18 ] M. is shy and quiet, but warms up once he is comfortable. He is in grade 5 in a French immersion program. He achieves high academic standards and has made new friends.

[ 19 ] The maternal grandmother, C.A.D., has diabetes, which she is dealing with.

[ 20 ] The maternal grandfather, L.E.D., had heart surgery in 2005 and more recently an operation for a small hernia.

[ 21 ] The grandparents are considering selling their house and moving into Perth, but no further away from the father.

[ 22 ] The CAS opposes the application for leave and the status review. It says the timing indicates a lack of judgment on the part of the father. It is concerned that the children's sense of stability and permanency would be undermined by the father’s intent to relocate them to Ottawa.

Father's Perspective

[ 23 ] Viewing his position most favourably, it can be said that his circumstances have improved and his agreement to the placement of the children with the grandparents was a reasonable and sensitive reaction to the unfortunate plight of their mother.

[ 24 ] He now rents an apartment in Ottawa. It is in a house which contains two other apartments, one occupied by his landlady and the other by another tenant. It has three bedrooms, one of which he uses as his office. When the children are there, K. has her own bedroom, which she has decorated, M. sleeps in the Applicant's bedroom, and he sleeps in his office. There is a kitchen, a storage area and the backyard approximately 30' x 30'.

[ 25 ] He described his activities with the children, which included going to Cosmic Adventures, and more recently, swimming, visiting the National Arts Center with his sister, movies, baseball games where he is the scorekeeper, once to the zoo, once to Montréal for a comic book convention and he and his daughter have gone camping. He has helped K. with the French assignment.

[ 26 ] He has maintained regular access with his children.

[ 27 ] He is self-employed and works from his home as a computer developer of databases. He states that his revenues vary and does not state his average income. He proposes to move the children to Ottawa schools, which he has looked at to some extent.

[ 28 ] He concedes that since he has started this proceeding, the children have indicated that they do not want to live with him and prefer to live with their grandparents.

[ 29 ] He submits that he had a lack of understanding of the legal consequences of his agreement to the prior proceedings, which resulted in the Order of crown wardship. He was self represented. He points to his change in circumstances as supportive of his application. He says it is in the best interests of the children that they move in with him.

Grandparents’ perspective

[ 30 ] After submissions by counsel, I asked the grandparents who were present in court whether they wish to say anything. They advised that they did not know that they were permitted to do so. I asked them if they wish to file an affidavit. They indicated that they did. I indicated that it would be helpful to the court if they provided some information about the day-to-day lives of the children, in particular concerning such things as their present home, their rooms, equipment, such as computers, their homework routine, how they get along at school, including their grades and copies of the report cards, what they do extracurricularly, their friends, their health, the effect on them of their mother's death, the medication needs, their religion practices, their fears and worries, their goals, what is being done or can be done to ensure that they achieved their future ambitions. I also indicated that it would also be helpful if they advised as to what the children do in a school day, on a weekend and during the summer holidays. I advised them that I did not wish them to canvass and report the children's views about the legal proceedings or moving in with their father.

[ 31 ] I requested that they serve and file any such affidavit within two weeks, and that counsel would be permitted to respond as they deem fit either in writing or by further attendance in court. Accordingly, my decision was reserved.

[ 32 ] L.E.D. and C.A.D. delivered a joint and thoughtful, thorough and detailed description of the home life that they are providing for K. and M.. The care and thought that they put into their affidavit is evident. This evidence is very important. The court is grateful to them.

[ 33 ] It is clear that the children are enjoying a real home life in the truest and best sense of the term. They are learning family values, dinner together. They are learning basic good human principles, chores, responsibilities, care of animals, religion. They are active in sports, the outdoors, music, and friendships. They have the opportunity to attend camps with their peers. They are doing well in school and the grandparents stay in touch with the teachers. They are healthy and their medical development is being appropriately managed. It is hard to imagine a home that could more fully and appropriately encourage and ensure a rich, rewarding and successful life for two children.

[ 34 ] Clearly, L.E.D. and C.A.D. are very loving, capable, committed and supportive of the children and of each other. Clearly, the children are experiencing a loving, true home life and they are thriving in it.

[ 35 ] The fact that such success is enjoyed by this family unit in the face of what must have been a very difficult and sad time through the children's mother’s ill health speaks volumes of the good and strong character of all involved, including the children's father.

[ 36 ] There is no doubt that the children's country home with their grandparents is providing in exemplary fashion for all of their needs including physical, emotional, principles and values, responsibility, academic achievement and future growth, development and success.

[ 37 ] It is beyond doubt and to the great credit of these grandparents, these children and their father that the very best interests of K. and M. are being met in their current home life which includes regular contact with their father, which is supported by the grandparents and the children.

[ 38 ] The CAS and the Applicant declined to respond to the Affidavit of the grandparents.

THE LAW

[ 39 ] Section 65.1(5) does not specify the criteria for consideration by the court in determining whether leave should be granted.

[ 40 ] In Children’s Aid Society of Durham (County) v. S. (J.) 2009 CarswellOnt 8777 , Timms J. of this court states that the Applicant must satisfy the court on the balance of probabilities that such a review would meet the “paramount” and “other purposes” definition found in s.1 of the CFSA , and that the best interests of the children is included therein.

[ 41 ] Section 1 states that the paramount purpose of the Act is to promote the best interests, protection and well-being of the children.

[ 42 ] In C. v Children’s Aid Society of Ottawa-Carleton [2009] O.J. No. 2063 , Blishen J. of this Court, held that the criteria to be considered are as follows:

(1) The judge must be satisfied that the status review application for which leave is sought, is being brought bona fides.

(2) Leave ought not to be granted if the relief sought can be obtained otherwise than by reviewing the whole order itself.

(3) There must be some unusual circumstances which justify the review, in spite of the child's permanent status.

(4) The judge must be satisfied that the review would likely accomplish the purposes of the Act as set out in section 1.

(5) The applicant must establish a prima facie case.

BONA FIDES

[ 43 ] I note that the information that I have requested of the grandparents is material that one might have expected to be advanced by the Applicant. To this extent, his application lacks in any detail as to the long-term plan for his children. To this extent, he does not demonstrate an understanding of the needs of his children who have been in the care of their grandparents for 5 ½ years. He does not cite any significant problem with the present care of the children by the grandparents. His position can reasonably be viewed as being that he is their natural father and that now that their mother has passed away, the children should live with him.

[ 44 ] The court can accept that it was reasonable, principled and thoughtful that the Applicant not disrupt the status quo of the children while their mother was alive. I do not accept his claim that he did not understand the legal consequences of the previous proceedings. He had the opportunity to seek legal counsel, and is presumed to understand the consequences of his actions.

[ 45 ] I accept that he loves his children dearly and is committed to their best care. He is to be commended for remaining in their lives to the extent that he has. There can be no doubt that, morally and legally, this is necessary to assist them throughout their lives. They will only ever have one dad.

[ 46 ] However, the material that the Applicant has filed does not satisfy me that he knows fully, and can deliver what their best interests require and deserve.

NO OTHER MEANS OF RELIEF

[ 47 ] There is no other means by which P.L. can obtain the relief which he seeks.

UNUSUAL CIRCUMSTANCES

[ 48 ] There has to be some unusual circumstance to justify the court's intrusion into a continuous and long-term foster placement, with kin, especially from the child's perception of time.

[ 49 ] The father is to be commended for the steps that he has taken to improve his personal circumstances and, therefore, those of the children when they are with him, and perhaps to provide or contribute to their financial needs as they pursue their potential in education, employment and family lives.

[ 50 ] The evidence is that the children are doing well, all of their needs are met, they are happy and they are succeeding. No present care problems have been identified. The Applicant has provided no compelling evidence to warrant a view that his current circumstances or those of the children require a change in the placement of these children.

[ 51 ] I have already noted the absence of any detailed information as to his financial resources. There is also no information provided by him as to his day-to-day activities, leisure time activities or relationships.

[ 52 ] On the material before me, I cannot find the existence of any unusual circumstances that would justify the review of the children's permanent status.

WOULD REVIEW ACCOMPLISH THE PURPOSES OF THE ACT?

[ 53 ] As Blishen J. points out, the Act gives priority to the paramount purpose of promoting the best interests, protection and well-being of children. A child's need for continuity of care and the stable family relationship is recognized in the legislation. That situation exists for these children. They live in a kind, stable and nurturing environment. They have the best of care with their grandparents. Their needs are being met. They have a close happy relationship with their father. Presumably they have quality time with their father, who would be busy developing his business when they are not with him, but able to clear time for them during his access time.

[ 54 ] In my view, on the material before me, the right of these children to be permanently placed with a stable, fulfilling, and a loving situation would be jeopardized if they were moved in the present circumstances.

[ 55 ] Clearly, there would be a benefit to the Applicant were the children to live full-time with him. Clearly, there is a benefit to a strong and happy relationship of a parent with his children, but the focus of the inquiry and the purpose of the Act is child centered. In the circumstances of this case, the best interests of the two children are being met in the care of their grandparents.

[ 56 ] The grandparents are to be commended for providing the home environment for their grandchildren and at the same time, dealing with the illness and death of their daughter. This capacity demonstrates a strong commitment to these children and the strength of character that has and will benefit the children.

[ 57 ] The children are to be commended. They had to deal with the separation of their parents - not their fault. They had to deal with the illness, the understanding of the terminal nature of the illness of their mother, live with her and watch her decline, be separated from her when she was institutionalized and then face and live through and beyond her death. I am satisfied that they have coped well and succeeded despite the burden of this challenge.

[ 58 ] How could the court consider disrupting the situation that saw them through all of what they have been through, enabled them to succeed and has offered a bright future with promise. It would not be in their best interests or well being to consider changing their home.

PRIMA FACIE CASE

[ 59 ] The reasons that I have given to this point in time and the evidence before me make it clear that the Applicant does not have a prima facie case. I cannot find that there is a reasonable prospect of success for this application to review.

[ 60 ] I do not in any way diminish the commitment that P.L. has made to his children and his love for them. The relationship that his children have with him is important and will become more important with the passing of time. He must understand that, in the present situation, he is helping them and contributing to their lives and happiness and ability to succeed. His role as their father remains vital to them.

[ 61 ] The Applicant has not made out a prima facie case on the facts before me.

DECISION

[ 62 ] For these reasons, the motion for leave to bring an application for review is dismissed.

The Honourable Mr. Justice G. Tranmer

Date: December 20, 2012

COURT FILE NO.: 458/09

DATE: 2012Dec20

SUPERIOR COURT OF JUSTICE - ONTARIO RE: The Children’s Aid Society of the County of Lanark and the Town of Smith Falls, Applicant AND: P.L., Respondent/father L.E.D. and C.A.D., Respondents/maternal grandparents BEFORE: The Honourable Mr. Justice Gary W. Tranmer COUNSEL: Nicola Edmundson, Counsel for CAS Francis Aheto-Tsegah, Counsel for the father, P.L. L.E.D. and C.A.D., appearing in person ENDORSEMENT Tranmer J.

DATE: December 20, 2012