SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FC-09-348-2
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 D.N; d.o.b. […] 2006 – N.C.; d.o.b. […] 2012
BETWEEN:
THE CHILDREN’S AID SOCIETY OF OTTAWA
Applicant
-and-
C.N. (Mother)
Deborah Rosefield, for the Children’s Aid Society of Ottawa
Karen Leef, for the mother C.N.
J.C. (father of N.)
D.M. (father of D.)
Respondents
Sonya Notturno, for the father J.C.
Dominique D. Smith, for the father D.M.
HEARD: January 10, 2013
REASONS FOR JUDGMENT
Linhares de Sousa J.
[1] The Children’s Aid Society of Ottawa (“the Society”) brings this temporary care and custody motion pursuant to Section 51 of the Child and Family Services Act (“the CFSA”) for an order placing the child D. N., d.o.b. […], 2006 in the temporary care and custody of the mother, Ms. C. N., subject to the supervision of the Society, on terms and conditions, pending the final determination of this Protection Application. This application also originally concerned a second child, N., d. o. b. […], 2012, which matter has now been severed from this case and disposed of on consent.
[2] The 15 terms and conditions sought by the Society as part of the order sought are found in the Notice of Motion found at tab 14 of the continuing record and are as follows:
(1) Ms. N. shall cooperate fully with the Society and follow through on all Society recommendations.
(2) Ms. N. shall allow the child protection worker to attend her place of residence on an unannounced and announced basis and for the worker to have access to the children in the home and community as necessary.
(3) Ms. N. shall advise the Society of any change of address, contact information, prior to the change occurring.
(4) Ms. N. shall ensure that her residence is kept clean and free of any hazards that may affect the children’s health and safety.
(5) Ms. N. shall ensure that all of the children’s medical, dental and basic needs are met.
(6) Ms. N. shall ensure that the children have three nutritious meals per day.
(7) Ms. N. shall maintain D. in a school that is able to accommodate his learning disability and provide speech and language therapy. Ms. N. shall maintain regular contact with D.’s school and will follow through with meetings and recommendations made.
(8) Ms. N. shall register D. in a program in the community that addresses the violence he has previously been exposed to.
(9) Ms. N. shall ensure that the children are not witness or exposed to violence of any kind.
(10) Ms. N. shall continue to discuss her mental health with a doctor and follow through with all recommendations made.
(11) Ms. N. shall continue to obtain counseling and support from Ms. Sandy Pinhey at the Western Ottawa Resource Centre with a focus on Violence Against Women issues; or another approved counseling program.
(12) Ms. N. shall work with a public health nurse and follow recommendations made.
(13) Ms. N. shall not disclose her address to Mr. C. and Mr. M.
(14) Ms. N. shall not provide Mr. C. or Mr. M. access to the children without the Society’s knowledge and consent.
(15) Ms. N., shall, after consultation with counsel, sign consents for the Society to communicate with the service providers involved with the family.
[3] Ms. N. consents to the motion brought by the Society and is prepared to be bound by all of the conditions requested by the Society. Since December 18, 2012 D. has been in the care of his mother on an extended visit by order of Aitken J.
[4] The father of the child is D. M. and he contests this motion brought by the Society. It is his position that the child ought to remain in the care of the Society. In a separate motion he seeks specified access to his son, whom he has not seen for almost two and one half years.
[5] D. was apprehended by the Society on October 23, 2012. The protection concerns raised by the Society at that time and led to the investigation of this family and the apprehension of D. were the following. Ms. N. recently terminated a relationship with J. C. and the father of her daughter N. which involved domestic violence and conflict. It appears that D. was exposed to this conflict. Upon investigation of the home and based on reports from the C. family, the Society also had concerns about the deplorable state of the home and the security of D. in that home, as well as questions about Ms. N.’s mental health and compliance with prescribed medication. The Society also had concerns about reports received from the C. family about Ms. N.’s use of drugs and alcohol and exposing her children to escorting activities. When first investigated Ms. N. was also un-cooperative with the Society.
[6] This was not D.’s first apprehension by the Society. He had been apprehended before at a very young age, in February of 2009, when Ms. N. was in a relationship with D.’s father, Mr. M. At that time too Ms. N.’s relationship with Mr. M. can also be described as one involving serious domestic violence to which D. was inevitably exposed. The Society protection concerns at that time were, domestic violence from Mr. M. and Ms. N.’s inability to be protective of D. from that domestic violence even in the face of criminal proceedings against Mr. M. for his assaultive behaviour against Ms. N. Mr. M. was permitted into Ms. N.’s home contrary to criminal court conditions. The Society also had concerns about the deplorable state of the home and its potential risks for a young child.
[7] At that first apprehension D. remained in the care of the Society some 4 months and then was cared for by his maternal grandparents for approximately another 3 months. This was followed by D. returning to his mother’s care for 6 months under the supervision of the Society. In March of 2011, the protection proceedings brought by the Society terminated with a custody order being granted to Ms. N. of D. pursuant to Section 57.1 of the CFSA. Along with that order a restraining order was issued against Mr. M. prohibiting him from communicating with nor coming within “500 metres of the residence, place of employment, school, day-care or any place in the community where Ms. N. and the child D. may be.”
[8] According to Mr. M. when he and Ms. N. ended their relationship he enjoyed alternate weekend access to D. until the child was apprehended by the Society in 2009. It is not disputed that once the 2009 apprehension occurred Mr. M. was not cooperative with the Society. He supported Ms. N.’s plan to have D. returned to her care but according to the Society he refused to attend court. The Society’s concern relating to Mr. M. at the time concerned his assaultive behaviour towards Ms. N., his lack of control in his anger towards the Society and its workers and his chronic use of marijuana.
[9] Mr. M.’s last visit with his son was in June of 2010. Since that time Mr. M. has been incarcerated for assault offences relating to Ms. N. and has also been subject to probation orders which until the hearing day of this motion included a no-contact provision with Ms. N. and D. Mr. M. has not had contact with either Ms. N. or D. since that time.
[10] According to Mr. M. he now has stable employment and lives in his own residence in Winchester. Mr. M. admitted to the Society case worker, Ms. Melissa Rumney that he continues to use marijuana regularly. He is presenting a plan of care for D. and wishes to resume visitation with his son as soon as possible. Mr. M. is also the father of a young daughter. No information about this child and his relationship with this child was provided by Mr. M.
[11] Mr. M. contests the Society application to have D. return to the care of his mother. His position is that Ms. N.’s behaviour and her care of D., which led to the recent apprehension of D., was similar to her conduct that led to the first apprehension of D. in 2009 and demonstrates a pattern. Mr. M.’s counsel submits on his behalf that not enough time has passed for Ms. N. to show that she has addressed in a sustainable way the protection concerns raised by the Society with which he agrees. It is Mr. M.’s position that when he cohabited with Ms. N. he had on several occasions reason to question her emotional stability.
[12] According to Ms. N. she is able to care for her children, her daughter N. and her son D., appropriately. She denies any alcohol and drug consumption or that she was working as an escort. She acknowledges being frustrated and uncooperative with the Society in the period leading up to the recent apprehension of her children because of her frustration with their investigation of false allegations raised by her previous partner Mr. C. and his extended family. She has since begun to cooperate with the Society and is willing to accept all of the conditions imposed by the Society relating to their protection concerns including those relating to abusive partners, such as Mr. C. and Mr. M.
[13] The evidence in this matter supports the finding that when Ms. N. is in an abusive relationship her ability to protect her children from the emotional trauma of the domestic violence, her emotional stability and her ability to maintain a clean and risk free home for her children is compromised. However, Ms. N. has also shown that she is an appropriate and loving parent to her children when she deals with her abusive relationships and does all that she can do to separate herself and her children from her abusive partners. Even Mr. C., her recent partner reported Ms. N. as a “great” mother. It will be recalled that in the 2009 apprehension of D. that Mr. M. himself supported Ms. N. in regaining care of their son.
[14] Since separating from Mr. C. and the recent apprehension of her children Ms. N. has embarked on some very positive steps to deal with the Society’s protection concerns, as she did when she finally separated from Mr. M. during the first apprehension of D. She has demonstrated that she can work cooperatively with the Society. She has obtained her own residence at an address unknown to either Mr. C. or to Mr. M. as part of her safety planning. Ms. N. in the past obtained a restraining order against Mr. M. in 2011.The Society has attended Ms N.’s new residence a number of times and has found it to be clean and appropriate.
[15] Regarding the mental health issues and her emotional stability, Ms. N. has been to see her psychiatrist, Dr. Krishnaprasad who is fully aware of what prescribed medication Ms. N. is taking and not taking. According to the Society worker, Ms. Rumney, the latest communication received from Dr. Krishanaprasad is that “Ms. N. is feeling emotionally stable and she is not on any psychotropic medications. She is not in any danger either to herself or others.”(Paragraph 6, Affidavit of Melissa Rumney dated December 14, 2012, tab 15 of the Continuing Record).
[16] Ms. N. has also taken steps to deal with her selection of abusive partners such as Mr. C. and Mr. M. She is attending and will continue to attend domestic violence counselling through the Pinecrest Queensway Community Health Centre. This program also includes material on how being exposed to violence affects parenting.
[17] The evidence indicated that D. may be exhibiting some anxious behaviour. His school principal, Mr. H. J., indicated that “D. was a child who struggled with transition and changes.” (Affidavit of Gail Bowen, dated October 25, 2012. Paragraph 34, tab 5 Continuing Record). D. was given the support of an educational assistant at school. He has also been identified as a child “who would benefit from the support of a licensed child care centre.” (Affidavit of Melissa Rumney, dated December 14, 2012, paragraph 10, tab 15, Continuing Record). I think it reasonable to conclude that D.’s separation from his mother as a result of his recent apprehension has not helped his situation. Ms. N. indicated that she is prepared to attend a program with D. for children who have witnessed domestic violence as he has done with his father and his mother’s recent partner.
[18] The legal test to be applied to the circumstances of this case can be found in Section 51(3) of the CFSA:
“(3) CRITERIA – The court shall not make an order under clause (2) (c) or (d)[warship order] 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) [returning the child to the care of a parent with or without conditions].”
[19] Furthermore, the court must always keep in mind the section 1 paramount purpose of the CFSA which is to “promote the best interests, protection and well being of children” which includes considering the possibility of keeping children in the care of their parents and the least disruptive course if the children can be safe.
[20] After examining all of the circumstances in this case, I am persuaded that D. should be returned to the care of his mother pending a final decision in this matter. The fact that this is the second apprehension in D.’s short life as a result of his mother entering into a conflictual and abusive relationship is troubling. One cannot help but question whether this might become a pattern in her life if left unchecked and she does not seek to address this aspect of her life. She has shown herself to be a “great” and loving parent when not living with abusive partners. But for the abusive relationship, the evidence shows that Ms. N. can maintain a proper, clean and safe home environment for her children. For D., she is the only consistent parent he has known in a world of changes and transitions that he struggles to keep up with.
[21] In the past Ms. N. has shown herself capable of doing what she had to do in order to protect D. from an abusive partner such as hiding her residence from Mr. C. and Mr. M., obtaining a restraining order against Mr. M. and not having any contact with her abusing partners.
[22] The evidence shows that Ms. N. has sought out professional help for herself and is willing to do it for D., in order to deal with the more difficult issue of how and why she permitted herself to enter into violent relationships. She has sought out psychiatric treatment to deal with her emotional stability.
[23] The Society, after investigating, concedes there is no evidence to conclude that Ms. N. consumes drugs or that she is involved in escorting activities or has exposed her children to those activities. Mr. M. has not been able to present any reliable evidence to the contrary.
[24] For all of these reasons I am persuaded that D. ought to be in the care of his mother and that he can be adequately protected by a supervision order with conditions that will sustain Ms. N.’s continuing cooperation with the Society, allow the Society to continue to monitor her emotional stability, her ability to have no contact with her former abusive partners, Mr. C. and Mr. M., her proper maintenance of the home environment of the children, and following through with the counselling from which D. and Ms. N. will benefit relating to violent relationships she and her children have experienced with both Mr. C. and Mr. M. I am satisfied that the proposed conditions 1 to 15 inclusive as listed above, will do all of that and hence adequately protect D. from the harm which he might otherwise likely suffer in this case.
[25] For all of these reasons an order is granted placing D. in the temporary care and custody of his mother, Ms. N., subject to the supervision of the Society on terms and conditions 1 to 15 inclusive as found at pages 2 and 3 of the Society’s Notice of Motion at tab 14 of the Continuing Record.
[26] The issue which has yet to be decided is the question of what temporary order of access to Mr. M. is in D.’s best interests. The arguments on that motion have not yet been completed. That motion is adjourned to continue on a date to be set by the trial co-ordinator with the consent of all counsel.
Linhares de Sousa J.
Released: January 17, 2013
COURT FILE NO.: FC-09-348-2
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990
AND IN THE MATTER OF D.N.; d.o.b[…] 2006 – N. C.; d.o.b. […] 2012
BETWEEN:
THE CHILDREN’S AID SOCIETY OF OTTAWA
Applicant
-and-
C.N. (Mother)
J.C. (Father of N.)
D.M. (Father of D.)
Respondents
REASONS FOR JUDGMENT
Linhares de Sousa J.
Released: January 17, 2013