SUPERIOR COURT OF JUSTICE – ONTARIO

FAMILY COURT

COURT FILE NO.: C1039/09-10

DATE: March 28, 2013

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

RE: CHILDREN’S AID SOCIETY OF LONDON AND MIDDLESEX, Applicant

AND:

A.C., J.M., J.A. and C.G., Respondents

• AND -

COURT FILE NO.: C1039/09-11

RE: CHILDREN’S AID SOCIETY OF LONDON AND MIDDLESEX, Applicant

AND:

A.C., R.W.W., J.S., C.E., M.G. and C.G., Respondents

BEFORE: MARSHMAN J.

COUNSEL:
Randolph C. Hammond for the Society

Leonard G. Reich for A.C.

J.M. not appearing

N. Nicole Nussbaum, duty counsel for J.A.

Ms. Smith, Band representative for C.G.

R.W.W. not appearing

J.S. not appearing

C.E. not appearing

M.G. not appearing, letter sent by his counsel Zora Drozd

HEARD: March 21, 2013

ENDORSEMENT

[1] The mother seeks to have two of the children placed with her mother and one of the children placed with her father and the other five children placed with her.

[2] The Society seeks to have all eight children placed in care with the understanding that the child B.3, who is currently residing with his grandfather, will be placed there as soon as the necessary police checks have arrived.

[3] The two oldest children, B.1 and B.2, have R.W.W. as their father. The next child J.1 has J.S. as his father.

[4] The father of J.2 is J.A. There is some question as to whether he is the father and the Society is considering whether it will pay for a DNA test without an order.

[5] Mr. J.A. appeared and sought an adjournment of the matter relating to J.2. Mr. M.G. did not appear but asked by letter through his solicitor if he could have an adjournment. I denied both adjournments and indicated in both cases that the matter would proceed without prejudice to the fathers’ rights to later claim placement with them.

[6] The children range in age from 15 and a half to 1.

[7] The Band representative took no real position with respect to placement of the children but felt that a s. 54 assessment was in order in this case. I do not disagree that an assessment would be of benefit in this case but it has not been formally sought and I wanted to give Mr. Hammond an opportunity to get instructions from the Society on the possibility of an assessment.

[8] I indicated that some of the children should be represented pursuant to s. 38 of the Child and Family Services Act, R.S.O. 1990, c. C.11 [as amended], which provides as follows:

Legal representation of child

38.(1)A child may have legal representation at any stage in a proceeding under this Part.

Court to consider issues

(2)Where a child does not have legal representation in a proceeding under this Part, the court,

(a) shall, as soon as practicable after the commencement of the proceeding; and

(b) may, at any later stage in the proceeding,

determine whether legal representation is desirable to protect the child’s interests.

Direction for legal representation

(3)Where the court determines that legal representation is desirable to protect a child’s interests, the court shall direct that legal representation be provided for the child.

Criteria

(4)Where,

(a) the court is of the opinion that there is a difference of views between the child and a parent or a society, and the society proposes that the child be removed from a person’s care or be made a society or Crown ward under paragraph 2 or 3 of subsection 57 (1);

(b) the child is in the society’s care and,

(i) no parent appears before the court, or

(ii) it is alleged that the child is in need of protection within the meaning of clause 37 (2) (a), (c), (f), (f.1) or (h); or

(c) the child is not permitted to be present at the hearing,

legal representation shall be deemed to be desirable to protect the child’s interests, unless the court is satisfied, taking into account the child’s views and wishes if they can be reasonably ascertained, that the child’s interests are otherwise adequately protected.

[9] None of the parties disagreed with the suggestion that legal representation was appropriate. Counsel left it to me to determine which children should be represented.

[10] At first blush, subsection (c) of the criteria section would suggest that legal representation is desirable whenever a “child is not permitted to be present at the hearing.” However, the section goes on to say: “unless the court is satisfied, taking into account the child’s views and wishes if they can be reasonably ascertained, that the child’s interests are otherwise adequately protected.”

[11] In Middlesex County, the general rule is that children under ten are not normally legally represented. There are of course many exceptions.

[12] The Act itself, in the adoption section, provides that the consent of a child over seven years of age or more shall be obtained. The Children’s Lawyer must be satisfied that the consent is fully informed and reflects the child’s true wishes (s. 137(6) and (11)).

[13] In my opinion, legal representation is not generally desirable if the child is too young to express his or her views and preferences and otherwise instruct counsel. It is a waste of scarce resources to appoint legal representation to children who cannot adequately give instructions.

[14] In this particular case, it is appropriate to have B.1, B.2 and J.1 legally represented pursuant to s. 38.

[15] I would have included B.3, given his age and the serious allegations concerning him, but for the fact that the Society and the mother both agree that B.3 should be in the care of the maternal grandfather and from all accounts he is doing well in that person’s care.

[16] A., S., M. and J.2 are all too young to instruct counsel or to adequately voice their views and preferences. I do not therefore see any practical reason for appointing legal representation for those children.

[17] With respect to the placement of B.3 with the maternal grandfather, all parties agree that he should be placed with the maternal grandfather, subject to terms, once the appropriate criminal checks have been obtained. In the meantime, he will remain in care.

[18] With respect to all seven of the older children, the application is a status review of an earlier order. Hence the task, as set out in s. 64(8) of the Act, is as follows: the Society must prove that the children’s best interest requires a change from being in the care and control of the mother to being made temporary wards of the Society, pending trial.

[19] With respect to the child J.2, the test is as set out in s. 51(2) and (3) of the Act which provides that:

51. (2) Where a hearing is adjourned, the court shall make a temporary order for care and custody providing that the child,

(a) remain in or be returned to the care and custody of the person who had charge of the child immediately before intervention under this Part;

(b) remain in or be returned to the care and custody of the person referred to in clause (a), subject to the society’s supervision and on such reasonable terms and conditions as the court considers appropriate;

(c) be placed in the care and custody of a person other than the person referred to in clause (a), with the consent of that other person, subject to the society’s supervision and on such reasonable terms and conditions as the court considers appropriate; or

(d) remain or be placed in the care and custody of the society, but not be placed in,

(i) a place of secure custody as defined in Part IV (Youth Justice), or

(ii) a place of open temporary detention as defined in that Part that has not been designated as a place of safety.

(3) The court shall not make an order under clause (2) (c) or (d) unless 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 an order under clause (2) (a) or (b).

Thus, with respect to J.2, I must be satisfied that there must be reasonable grounds to believe that there is a risk that she will suffer harm and that the risk cannot be protected adequately by an order placing her with her mother.

[20] The affidavit evidence convinces me that all of these children should remain in care. The facts are adequately summarized in the affidavit of the social worker, Beverly Burns, in paragraph 56 of the affidavit as follows:

… The mother has an extensive history of involvement with the Society with ongoing concerns regarding the use of inappropriate alternative caregivers, the condition of the home, alcohol use, domestic violence, physical punishment, the mother’s minimization and denial of the risk posed to the children by J.S., J.S. contact with the children, inadequate supervision, inadequate parenting skills, lack of consistent follow through with service providers, increasingly poor school attendance and the mother’s ability to adequately manage children’s escalating behaviours. It is increasingly evident that she is overwhelmed with the responsibility of adequately caring for 8 children such that their needs are not being adequately met and their behaviours are deteriorating. Despite efforts to involve numerous community supports and services to provide assistance in maintaining the children in the mother’s care, A.C. has demonstrated poor and inconsistent follow through with these services and the situation continues to deteriorate…

[21] Although the mother has suggested that S. and M. ought to be placed with the maternal grandmother, there is simply not enough known about her to place the children there at this time. She says in her affidavit nothing about her current address, whether the children would go to daycare, her criminal record, if any, whether she lives with other people or alone, etcetera. There is simply not enough to convince me that S. and M. should be placed with her.

[22] Likewise, there is simply insufficient evidence that the mother has progressed sufficiently to warrant having some of the children return to her care. Although she deals with some of the incidents in her affidavit, I am very concerned with her overall care of the children and, in particular, her failure to see that they are adequately watched over and her failure to ensure that they attend school on time.

[23] The mother proposes that her boyfriend, A.G., will be a caregiver for the children to help her and to care for the children when she is not around. Her whirl-wind romance with Mr. G. is concerning. She only met him in the summer and moved in with him within three or four months. Around the same time they apparently became engaged to one another.

[24] Mr. G. in his affidavit does not address the issue as to whether he has a criminal record, nor does he deny or expand on his involvement with the Children’s Aid Society in the past.

[25] There is simply too much risk in returning five of the children to reside with the mother and her partner. However, it may well be that matters will progress to the point that the children can be returned to the mother before trial.

[26] Accordingly, all of the children will be placed in the care and control of the Society on an interim interim basis. The mother, A.C., the maternal grandmother, C.E. and the maternal grandfather, R.C., shall all have reasonable access to the children. The Children’s Aid Society shall have discretion with respect to whether such access is supervised and, if so, the level of supervision. I note that the mother currently has overnight access to the child J.2 which is currently unsupervised by the Society. J.S. shall have no access and the parents, M.G. and J.A., shall have reasonable access to their biological child or children, with such supervision as the Society deems necessary. An order will go in accordance with these reasons.

“Justice Mary Marshman”

Justice Mary Marshman

Released: March 28, 2013