SUPERIOR COURT OF JUSTICE – ONTARIO

FAMILY COURT

COURT FILE NO.: C107/13-01

DATE: July 9, 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.W. and S.R.W., Respondents

BEFORE: MITROW J.

COUNSEL:
Denise Marshall for the Society

Thomas W. Curran for A.W. and S.R.W.

HEARD: July 5, 2013

ENDORSEMENT

INTRODUCTION

[1] The issue before the court is whether the parents have made sufficient gains in dealing with their substance abuse issues, such that their children, who are ages one and two (and who are the subjects of the protection proceeding commenced by the Children’s Aid Society of London and Middlesex (“Society”)), and who were placed in the temporary care and custody of the maternal grandparents subject to Society supervision pursuant to my order dated April 29, 2013 (“the existing order”), should now be returned to the temporary care and custody of the respondent parents (“Mr. W.” and “Ms. W.” and collectively “the parents”) and if so, whether that should be subject to Society supervision with terms and conditions.

[2] Pursuant to the existing order, this matter came back before me on June 24, 2013 to address various issues including whether the interim supervision order should be changed to place the children with the parents. On that day the matter was adjourned to July 5, 2013 (before me) and pending the adjournment an order was made providing the parents with some expanded access.

[3] On July 5, 2013, decision was reserved but an order was made that the parents shall have access from that date until 6:00 p.m. Sunday, July 14, 2013 but subject to the same terms and conditions regarding the parents’ access as set out in the existing order.

[4] The Society’s position is the children should be returned to Ms. W., subject to Society supervision, with a term of the order being that Mr. W. not reside in the home. The parents argue that if an interim supervision order is necessary, that the children should be placed with both parents subject to some but not all of the terms and conditions as requested by the Society.

DECISION

[5] I address at the outset the parents’ argument, forcefully advanced, by Mr. Curran that there is no nexus on the evidence between any drug use by the parents and their parenting skills, and that in the absence of evidence that a parent’s drug use negatively impacts on his or her parenting ability, the drug use per se cannot constitute an impediment to good and competent parenting: Children’s Aid Society of Toronto v. A.V., [2010] O.J. No. 5835 (Ont. C.J.) at para. 34.

[6] The parents argue that despite their drug use, there is no evidence that they have not been good parents to their children.

[7] Drug use by parents can constitute a risk to their children. The background facts as to Mr. W.’s and Ms. W.’s history of drug use is detailed in my endorsement relating to the existing order. Mr. W.’s admitted drug use, in particular, has been pervasive and pertinacious. On the birth of their eldest child in November 2010, the parents agreed with the St. Thomas Society to a voluntary placement of the child with the maternal grandparents. The reason was both parents’ admitted drug use. This voluntary placement is cogent evidence that the parents, themselves, recognized at the time an inability by either of them to parent their infant daughter as a result of their own substance abuse.

[8] The factual history of this case, including the aggravating factor that both parents suffer from the disease of addiction, and the parents’ own recognition that they could not parent their newborn daughter in November 2010, places the children at risk. The extent and seriousness of a parent’s drug use is a question of fact in any case – and in my view, it is not appropriate to enunciate, as a principle, a blanket statement that drug use in and of itself cannot constitute an impediment to good and competent parenting. There may be circumstances where a parent’s past history of drug use, considered in context, may be such that any further drug use per se will adversely affect that parent’s ability to be “a good and competent parent.”

[9] The main purpose of the provision in the existing order adjourning this matter to June 24, 2013, was to evaluate the parents’ progress in dealing with their drug addictions.

[10] Dealing first with Ms. W., since the existing order, she has demonstrated steady and positive progress. The existing order required Ms. W. to attend for a hair follicle test which she did and the results were negative. She has also progressed now to five “carries.” The report from Dr. Norris is positive and the report from Addiction Services of Thames Valley (“ASTV”) dated June 27, 2013 notes that Ms. W. very recently attended a one-hour assessment group and that she has been scheduled for a feedback session in the Heartspace Program on July 11, 2013.

[11] The evidence regarding Mr. W. since the existing order is that he has participated very recently in the assessment group at ASTV and that he has been scheduled for an individual appointment on July 23, 2013 (see ASTV report dated June 19, 2013). Dr. Judson’s report is positive and Mr. W. is complying with the treatment that Dr. Judson is supervising. However, Mr. W. still has not progressed to receive “carries,” thus requiring his daily attendance at a pharmacy.

[12] Mr. W. still tests positive for marijuana use according to his recent hair follicle test. The hair sample was taken June 11, 2013. According to Ms. Klein’s email report (she interpreted the test results), this is a very high concentration suggesting “daily use of several marijuana joints.” She opined that the 2 centimetre hair sample represented “approximately 6 weeks of hair growth since late April to early June.

[13] Ms. Klein then responded, in email form, to a number of questions from Mr. Curran. Ms. Klein elaborated that the six weeks of hair growth was based on statistics and not specific to Mr. W., and that she was not able to determine whether the usage was consistent over the period of hair growth.

[14] Mr. W., in his updated affidavit sworn June 19, 2013, deposes (see para. 16) that he “stopped using marijuana before the last court appearance” and that he has kept that up.

[15] The “last court appearance” referred to by Mr. W. would be April 12, 2013 when the temporary care and custody motion was argued. However, Mr. W.’s own affidavit sworn April 8, 2013 at para. 18 (only four days before the hearing) states that he was using marijuana – “about 4 joints per week.” In my endorsement (para. 30), I accepted Ms. Klein’s evidence that the “THC” level from Mr. W.’s hair follicle sample (taken February 19, 2013) was very high, suggesting daily use of large amounts of marijuana.

[16] Mr. W.’s evidence as to cessation of marijuana use is somewhat troubling. He never told the court on April 12, 2013 that he had stopped using marijuana – rather, he said he used “about” four joints per week – but now he says he was not using marijuana before April 12, 2013. Both times Ms. Klein reports drug test results consistent with “daily” use. Mr. W. omits the important detail as to when prior to April 12, 2013 he stopped using marijuana. The last hair follicle sample was taken over eight and a half weeks prior to latest date that Mr. W. would have ceased using marijuana if he is to be believed (and this would have been April 11, 2013, being the day prior to the court hearing). Although the evidence may not be conclusive as to whether Mr. W. ceased to use marijuana, and if so, when, the drug test results fall far short of corroborating Mr. W.’s evidence that he has ceased using marijuana. Clearly the next hair follicle test will be important. (I have not considered material forwarded by Mr. Curran to the court subsequent to the hearing date (consisting of Mr. Curran’s letter to Dr. Judson dated July 2, 2013 and Dr. Judson’s response dated July 4, 2013). Permission from the court to file this additional material on notice to Society counsel was not sought and, accordingly, this material is not properly before the court.)

[17] I agree with the Society’s submission that on a temporary basis the children should be placed with Ms. W. subject to Society supervision. I accept the gains made by Ms. W.

[18] The Society’s submission that Mr. W. should not reside at the home is a more difficult issue. This will place a significant burden on Ms. W. – and may jeopardize her continued drug-use prevention treatment. I do consider that the existing access order required Ms. W. to supervise Mr. W.’s access with the children at home and that there was no evidence to suggest any issues while Ms. W. was supervising Mr. W.’s access.

[19] I find it is appropriate for Mr. W. to remain in the home, but all his access to the children shall be supervised by Ms. W. or, if she is not available, then by the grandparents or any other person approved by the Society. In order to ensure that Ms. W. attends all her appointments, the order below allows Mr. W. limited circumstances to be alone with the children.

[20] Mr. W.’s continued complaints as to why he and Ms. W. need to attend at ASTV are troubling, as is his evidence that they would not go to Narcotics Anonymous. There is no evidence from ASTV corroborating that ASTV services are not appropriate. Also, both parents need to understand that if a recommendation is made for them to attend Narcotics Anonymous, then they shall comply with that recommendation subject to the conditions as set out below.

ORDER

[21] My previous order dated April 29, 2013 and the access provisions in my order dated July 5, 2013 are vacated.

[22] The children shall be placed in the temporary care and custody of Ms. W. subject to Society supervision and subject to the following terms and conditions:

a) Ms. W. shall ensure that Mr. W. is not left alone with the children except as specified in this order;

b) if Ms. W. cannot be with the children, then she may arrange with any one of the paternal or maternal grandparents or any other person approved by the Society to supervise Mr. W.’s care of the children;

c) the parents shall refrain from the use of and/or being under the influence of alcohol, or illegal substances, or any other drugs or substances at any time except as prescribed or approved by their physician;

d) the parents shall participate in all counselling/services/programs recommended by the Society and shall comply with all recommendations arising therefrom;

e) the parents shall continue with their methadone treatment program and shall comply with all recommendations made by their physician in relation to the methadone program;

f) the parents shall participate in all drug testing required by the Society and this shall include hair follicle testing and any other random drug testing, and if either parent cuts his or her hair resulting in a delay or inability to take a hair follicle sample, then this may be treated by the Society as a refusal to consent to a hair follicle test and the Society is at liberty to bring a motion on notice to seek the direction of the court as to the appropriate consequences of the refusal;

g) Mr. W. shall attend initially for a hair follicle test within 60 days or within such longer period of time as stipulated by the Society but not to exceed 120 days;

h) the parents shall allow access to their home by the Society on both a scheduled and unscheduled basis on a frequency as determined by the Society and shall cooperate with the Society worker as frequently and for as long as deemed necessary by the Society;

i) the parents shall allow the Society worker to have independent access to the children;

j) the parents shall sign any and all consents for the release of information to and from the Society as deemed necessary by the Society;

k) the parents shall advise the Society of any address and or telephone number change prior to such change occurring and, so long as the children remain in Ms. W.’s care and custody, the children’s principal place of residence shall remain in London, Ontario unless this court orders otherwise;

l) the parents shall attend and participate in all scheduled meetings with a worker from the Society or its agent as requested;

m) the parents shall address their substance abuse issues by participating in an assessment of their substance abuse with Addiction Services of Thames Valley and the parents shall accept and participate in any treatment recommended following the assessment, and further the parents shall each provide a written copy of any and all recommendations made by Addiction Services of Thames Valley to the Society forthwith;

n) Ms. W. may allow Mr. W. to be left alone with the children only if all of the following conditions are met:

i. Ms. W. needs to attend at the pharmacy to pick up her methadone or any other prescribed medication;

ii. for the purpose of treatment for substance abuse, Ms. W. needs to attend an appointment with a doctor or counsellor or attend a meeting;

iii. none of the maternal or paternal grandparents or anyone else approved by the Society is available; and

iv. the maximum that Mr. W. is alone with the children shall not exceed three hours but this may be extended to five hours with Society permission where for any specific occasion three hours is not sufficient for Ms. W. to attend for treatment as described in subparagraph (ii);

o) if Ms. W. plans to leave the children alone with Mr. W., as permitted by this order, she shall provide at least 48 hours notice to the Society;

p) the Society may approve other persons to supervise Mr. W.’s care of the children;

q) any recommendation made by the Society for either parent to attend Narcotics Anonymous must be supported in writing by that parent’s physician or counsellor.

[23] All further motions in this proceeding shall be brought before me as scheduled by the trial coordinator, except in circumstances where there is an emergency and the trial coordinator is unable to schedule the matter before me within sufficient time to deal with the emergency.

[24] The maternal and paternal grandparents shall have such reasonable access to the children as may be arranged by Ms. W. and subject to Society approval.

“Justice Victor Mitrow”

Justice Victor Mitrow

Date: July 9, 2013