ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT
COURT FILE NO.: C174/11-01
DATE: January 29, 2013
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT
BETWEEN:
Children’s Aid Society of London and Middlesex
Joseph F. Belecky for the Society
Applicant
- and -
T.O., D.S., J.W.1 and J.W.2
Lawrence A. Wanger for T.O.
No one appearing for D.S.
No one appearing for J.W.1
No one appearing for J.W.2
Respondents
HEARD: November 15, 19, 2012
MITROW J.
INTRODUCTION
[1] This brief trial involved a protection application for the child, A.J.O. , born […], 2007 (“A.J.O. ”). The respondents, T.O. (“Ms. T.O.”) and D.S. (“Mr. D.S.”), are A.J.O. ’s mother and father.
[2] This case was scheduled for trial on November 15, 2012. At that time Mr. Vitsentzatos, counsel of record for Mr. D.S., requested a brief adjournment because despite efforts made by Mr. Vitsentzatos, he had not been able to contact Mr. D.S. regarding preparation for trial. Mr. D.S. was not present in court on November 15, 2012.
[3] The trial was adjourned to November 19, 2012 peremptory on Mr. D.S.. On that date Mr. D.S. again was not present and Mr. Vitsentzatos found himself in a position where he had been unable to speak with Mr. D.S. and had no instructions. It was clear from Mr. Vitsentzatos’ submissions that Mr. D.S. was aware of the trial and the necessity to contact Mr. Vitsentzatos. Mr. Vitsentzatos was granted leave to bring a motion to be removed as counsel of record, he filed affidavit evidence in support of that motion and an order was made removing Mr. Vitsentzatos as solicitor of record. The trial proceeded thereafter without any involvement by Mr. D.S..
[4] The respondents, J.W.1 (“Ms. J.W.1”) and J.W.2 (“Mr. J.W.2”), are A.J.O. ’s maternal aunt and uncle and had cared for A.J.O. pursuant to an interim without prejudice order. Neither Ms. J.W.1 nor Mr. J.W.2 appeared at trial.
[5] Given that A.J.O. had been in Ms. T.O.’s care for a number of months prior to trial, the applicant, Children's Aid Society of London and Middlesex (“the Society”), and Ms. T.O. were both in agreement that the child should be placed with Ms. T.O. pursuant to a 12 month supervision order.
[6] The Society had proposed some terms of supervision but the court was invited by the Society to include any additional terms of supervision that the court deemed appropriate.
[7] In relation to access to the child by the father, the Society was of the view at this time that the facts did not warrant an access order being made. Ms. T.O. submitted that access to the father should be ordered on the basis that access is subject to Society approval.
[8] The Society and Ms. T.O. both agree that a protection finding should be made pursuant to s. 37(2)(b)(i) of the Child and Family Services Act, R.S.O. 1990, c. C.11 [ as amended].
[9] Based on the evidence, the following statutory findings are made pursuant to s. 47(2) of the Child and Family Services Act:
a) the child’s name is A.J.O. , born […], 2007;
b) the child has no specified religious faith;
c) the child is not an Indian or a native person; and
d) the child was taken from the mother’s care in Glencoe, Ontario and subsequently placed with the maternal aunt and uncle.
[10] At the conclusion of the trial, I indicated that I would place A.J.O. with Ms. T.O. subject to Society supervision and that my reasons would follow.
[11] As discussed below, there will be a 12 month supervision order placing A.J.O. with Ms. T.O.. The terms and conditions shall include some of the terms and conditions as requested by the Society. The order below also deals with access to the father and Ms. T.O.’s request for costs against the father.
THE FACTS
[12] Ms. T.O. and Mr. D.S. are not married to each other and they did not cohabit.
[13] Ms. T.O. has two other children, who are significantly older than A.J.O. . Ms. T.O. lives in Glencoe, Ontario.
[14] Mr. D.S. resides in Brantford, Ontario. He has two other children (now ages 18 and 3 according to the Society affidavit – Ex. #1). The Society evidence of child protection worker, Ms. Sarah Tuszinski, indicates those children reside with Mr. D.S. and that Mr. D.S. is currently in receipt of Ontario Disability Support Program (“ODSP”) payments.
[15] Ms. T.O. testified in a clear and straightforward manner. I found her evidence to be credible.
[16] A.J.O. had always lived with Ms. T.O.. Ms. T.O. described Mr. D.S.’ access visits after A.J.O. ’s birth as sporadic and infrequent even though Mr. D.S., for the first few years, lived close to Ms. T.O.’s residence.
[17] Ms. T.O. admitted that in early February 2011 she attempted suicide through an overdose of medication. Ms. T.O. had been depressed and was drinking alcohol daily. Fortunately, Ms. T.O.’s mother found her and Ms. T.O. was subsequently admitted to hospital for approximately two months for treatment, including psychiatric treatment. On the commencement of Ms. T.O.’s admission to hospital, A.J.O. was placed in the care of Ms. J.W.1 (Ms. T.O.’s sister) and Mr. J.W.2 (Ms. J.W.1’s husband).
[18] Pursuant to an interim without prejudice order made by Henderson J. on April 28, 2011, A.J.O. was formally placed with Ms. J.W.1 and Mr. J.W.2 subject to Society supervision, with various terms and conditions.
[19] As a consequence of her hospitalization and subsequent discharge from hospital, Ms. T.O. sought treatment at the Heartspace program at Addiction Services of Thames Valley directed towards her alcohol addiction. The Heartspace program is described as a program for women, including women who are parenting and substance-involved and have children up to age six.
[20] The report dated July 16, 2012 from Megan Neill at the Heartspace program is a positive report describing Ms. T.O. as open and honest in individual therapy and indicating that Ms. T.O. was motivated to make positive changes in her life. Based on Ms. T.O.’s attendances at the drop in sessions and her attendances at some relapse prevention group sessions (Ms. T.O. attended three out of eight relapse prevention group sessions according to Ms. Neill’s report) and based on Ms. T.O.’s reports of abstinence and her development of skills in relation to relapse prevention and also her efforts in accessing community supports relating to her mental health, Ms. Neill supported Ms. T.O.’s discharge from further services.
[21] There was also a positive report from Ms. Lois Grant, Counselling Team Leader, dated August 2, 2012, regarding Ms. T.O. accessing the counselling program at Search Community Mental Health Services in Strathroy, Ontario. It was Ms. T.O.’s evidence that after her addiction therapy she was able to accept that she had an addiction problem. She testified she is not consuming alcohol and has not had a “drink” since April 2011. She acknowledges the benefits from counselling and relapse prevention at the Heartspace program and she continues to attend at counselling with Ms. Grant. It is also apparent from the evidence that Ms. T.O. has a strong family support system, including her two sisters and her mother.
[22] Following her admission to hospital and subsequent discharge in 2011, it was always Ms. T.O.’s plan to seek appropriate treatment and counselling in order to have A.J.O. returned to her care.
[23] Pursuant to the interim order of Templeton J. dated April 19, 2012, A.J.O. was placed in the care of Ms. T.O. subject to Society supervision with terms and conditions. (At trial, the evidence consisted of Templeton J.’s endorsement – apparently the formal order had not yet been signed and issued. The Society was quite aware of the trial date and should have ensured that this important interim order was signed and issued before trial.)
[24] In relation to psychiatric treatment, Ms. T.O. testified that she last saw her psychiatrist when she left the hospital, however, she was seeing her family physician every four months or so and she testified she is taking her anti-depressant medication prescribed by her family physician. Ms. T.O. evidence was that this prescribed medication helps her.
[25] Ms. T.O. testified that currently she exercises more. She finds this also helps her. In regards to relapse prevention, Ms. T.O. goes every two weeks to Alcoholics Anonymous, however, she does not have a sponsor. She again reiterated that alcohol has not been a problem.
[26] Ms. Tuszinski testified that she was satisfied with the good progress made by Ms. T.O. and that A.J.O. could be protected by keeping him in Ms. T.O.’s care on a final basis subject to Society supervision with terms and conditions.
[27] The situation regarding Mr. D.S.’ access to A.J.O. was somewhat unusual. Ms. Tuszinski testified that after Mr. D.S. was served with the protection application in June 2011, he expressed a desire to have access and eventually to have A.J.O. placed in his care.
[28] According to Ms. Tuszinski, around the beginning of July 2011, some access was arranged between A.J.O. and Mr. D.S. and this access progressed eventually to regular access visits at Mr. D.S.’ home in Brantford. By September 2011, the regular access visits with Mr. D.S. had progressed to the point that the Society was giving consideration to A.J.O. being placed with Mr. D.S.. At that time, according to Ms. Tuszinski, Ms. T.O. was not yet ready to assume care of A.J.O. .
[29] During the period starting with the fall of 2011 to February 2012, A.J.O. was attending access visits with Mr. D.S. every weekend. At the same time, Ms. T.O.’s visits were also increasing, given the progress she had been making. In fact, A.J.O. was spending more time with his parents cumulatively than with Ms. J.W.1 and Mr. J.W.2.
[30] Ms. Tuszinski testified, however, that starting around October 2011 she began receiving complaints that A.J.O. was resisting going on access visits with Mr. D.S.. It was Ms. Tuszinski’s evidence that on two or three occasions (in December 2011 and January 2012) she requested Mr. D.S.’ permission to attend at his residence in Brantford to view the interaction between him and A.J.O. , but that Mr. D.S. refused – taking the position that a social worker from the Brantford Children’s Aid Society should be able to observe any such visit.
[31] Later in the fall of 2011, it was Ms. Tuszinski’s evidence that the plan changed and that the Society began to support a plan to place A.J.O. in Ms. T.O.’s care. Ms. Tuszinski testified that Mr. D.S. was aware of this change in plan.
[32] Around mid February 2012, Ms. Tuszinski testified she witnessed A.J.O. being very upset and crying and not wanting to visit with Mr. D.S.. It was Ms. Tuszinski’s observation that A.J.O. ’s distress was at such a level that forcing access was not in his best interests. Ms. T.O. testified that at all times she was supportive of access occurring. Ms. Tuszinski corroborated this evidence and, during her cross-examination, Ms. Tuszinski indicated she was unaware of any conduct by Ms. T.O. to explain A.J.O. ’s reluctance to go on access visits. When asked in cross-examination why A.J.O. did not want to go on access, Ms. T.O. testified A.J.O. made statements to her that included “I don’t like Daddy” and “Daddy yells” and makes him eat his food when he is not hungry. I place little if any weight on this hearsay evidence, even assuming the evidence is admissible. In my view, this evidence is mostly inadmissible.
[33] Given the level of A.J.O. ’s upset at the prospect of attending access visits, Ms. Tuszinski contacted Mr. D.S. in or about mid February 2012 to advise that A.J.O. was not coming for his scheduled visit and instead suggesting that Mr. D.S. attend for a supervised visit in Strathroy. It was Ms. Tuszinski’s evidence that in the past Mr. D.S. had at times refused to have access other than at his home in Brantford.
[34] Ms. T.O. in her testimony added that in February 2012 A.J.O. was not wanting to go on access visits. He was asking Ms. T.O. not to make him go. Ms. T.O. stated that she had to force A.J.O. into the vehicle to go on the access visit. Ms. T.O. testified that the following weekend Ms. Tuszinski attended at Ms. T.O.’s home to observe for herself A.J.O. ’s reluctance in going on an access visit and it was at that time (approximately mid February 2012) that access stopped.
[35] Mr. D.S. did attend for a supervised access visit arranged in Strathroy in March 2012. Both Ms. T.O. and Ms. Tuszinski were present at this visit. Ms. Tuszinski testified that A.J.O. would not greet Mr. D.S.. Mr. D.S. became upset. He started yelling in front of A.J.O. – expressing upset because Ms. T.O. was there. Ms. Tuszinski stated she then took A.J.O. to the playroom. A.J.O. was crying. Ms. Tuszinski could hear both parents’ voices – they both seemed upset. Ms. Tuszinski then went out to speak to both parents. Ms. Tuszinski testified she told Mr. D.S. his yelling was inappropriate and his access that day was not going to occur. Later, Mr. D.S. presented as being very upset – he was crying according to Ms. Tuszinski.
[36] For her part, Ms. T.O. testified that Mr. D.S. “went ballistic” – calling her a “bitch” and accusing her of poisoning A.J.O. against him, an accusation denied by Ms. T.O..
[37] Although the endorsement of Templeton J. was in relation to an interim order, it is interesting that Templeton J. heard viva voce evidence from both Ms. T.O. and Mr. D.S.. Templeton J. states as follows at paras. 11 – 14 regarding her observations of both parents and ongoing access to Mr. D.S.:
[11] I had the benefit of listening and watching both parents as they testified before me. Ms. T.O. impressed me as a mother who deeply loves her son and is very concerned for the welfare of her son. I am also satisfied that she understands her ongoing challenges and has sought and will continue to seek the necessary counselling and therapies available to her to address her personal issues successfully.
[12] I accept the submission that Mr. D.S. is a father who loves and cares about his children as well. His evidence and demeanour while testifying, however, created the impression that he is also someone who is motivated by a desire to control. His tendency to blame others for his lack of active participation in Aiden’s early life rings hollow. Indeed, I accept and prefer the evidence of Ms. T.O. with respect to the efforts she made to regularize access with Mr. D.S. for the benefit of her son in the early years.
[13] For these reasons, I find that it is in the best interests of Aiden that he be placed with his mother, T.O., subject to the supervision of the Children's Aid Society and the terms and conditions sought by that agency in their evidence before the Court. That said, on the basis of the evidence, I am also very concerned about the effect that the current access arrangement is apparently having on Aiden and suggest that alternate arrangements be made at this time pending the trial of this matter.
[14] An order shall therefore issue in accordance with paragraph 72 of the Affidavit of Sarah Tuszinski sworn February 8, 2012. Until the issues underlying the child’s distress at the time of transfer are identified and resolved, access to Mr. D.S. by the child will be solely at the discretion of the Children's Aid Society and will not necessarily include weekends and holidays unless and until it is deemed in Aiden’s best interests.
DISCUSSION
[38] I am satisfied that Ms. T.O. has addressed her substance abuse and mental health issues in a constructive and thoughtful manner. She has complied with taking her prescribed medication and she has implemented some relapse prevention strategies and she has good family supports in place.
[39] Although the evidence as to Ms. T.O.’s substance abuse focused on alcohol addiction, with Ms. T.O. testifying in-chief there was no other substance abuse, it is noted that in Ms. Neill’s report the problems identified at the assessment included “history of cannabis use.” I do find on the evidence that any cannabis use was historical and not the current presenting problem.
[40] Considering A.J.O.’s best interests, I agree that the least intrusive order that adequately protects A.J.O. is a 12 month supervision order placing A.J.O. with Ms. T.O..
[41] The one area where I have some concern is Ms. T.O.’s relapse prevention plan. She only attended three out of eight relapse prevention group sessions. Also, she does not have a sponsor. While Ms. T.O. is to be commended for the relapse prevention steps that she has taken, the critical importance of maximizing a relapse prevention strategy cannot be overstated. Relapse prevention is not transitory – it is a lifetime commitment. Also, abstinence from substances should be constant and should not be limited just to when Ms. T.O. is in the presence of A.J.O. as is proposed by the Society. A parent who relapses while a child is not in his or her care (for example the child is on an access visit) creates a potential for further relapses and increased risk for the child. The order below addresses the need for increased relapse prevention strategy, including more frequent attendance at Alcoholics Anonymous meetings.
[42] In relation to A.J.O. ’s refusal to attend for access, there was evidence at trial that Ms. T.O. attempted to access therapy for the child from a third party service provider, but that the service provider allegedly refused involvement until a final order was made.
[43] I find that the Society should have done more in this case to ensure that A.J.O. received proper intervention as soon as possible from a specialist to assist in determining why A.J.O. was refusing to go on access visits. The evidence at trial was that A.J.O. had not had access visits since mid February 2012.
[44] While Mr. D.S.’ conduct was clearly inappropriate during the failed supervised visit in Strathroy, there was no evidence at trial as to any appropriate intervention to determine the reason for A.J.O. ’s refusal to go on access visits. This lack of evidence was especially concerning given Ms. Tuszinski’s evidence that at one point the access visits had progressed so well that the Society was assessing a plan to place A.J.O. with his father. The interim order of Templeton J. clearly contemplated some exploration of this issue by the time this matter reached trial.
[45] It is in A.J.O. ’s best interests to take all reasonable steps to preserve his relationship with his father. It is unfortunate that Mr. D.S. failed to participate at trial. His failure in that regard, coupled with his conduct at the attempted supervised access visit in Strathroy, are both factors that have contributed to a lack of any ongoing access visits. Further, Mr. D.S. did not assist the situation when he refused the reasonable request of Ms. Tuszinski to attend at his home for the purposes of observing the interaction between A.J.O. and Mr. D.S.. Having said that, however, it is troubling that there is no evidence to assist this court in explaining what caused A.J.O. to apparently not want to visit with Mr. D.S. and, more importantly, there is no helpful evidence before this court as to how to assist A.J.O. in having a relationship with his father.
[46] The order below is directed towards A.J.O. ’s best interests in preserving a relationship with his father. Obviously Mr. D.S. cannot be forced to exercise access. However, Mr. D.S. is encouraged strongly to cooperate with the Society to ensure that the order set out below is carried out. If Mr. D.S. refuses to participate in re-establishing access, then the consequences of that conduct will unfortunately be visited on A.J.O. , who will be deprived of a meaningful relationship with his father.
COSTS
[47] Mr. Wanger submits that an order for costs should be made against Mr. D.S. in the amount of $3,500, those costs to be payable to Ms. T.O.. The basis of this submission is that Mr. D.S. has in effect caused this matter to proceed to trial, that the trial was scheduled with his knowledge and that he then failed to appear at trial. The argument is that had Mr. D.S. not filed an answer in this case, then this matter may have proceeded on consent without a trial.
[48] On behalf of the Society, Mr. Belecky does not seek any costs order in the Society’s favour but the Society does support Ms. T.O.’s claim for costs against Mr. D.S..
[49] I do not view this trial, necessarily, being caused only by Mr. D.S.’ failure to attend. There was some disagreement between the Society and Ms. T.O. as to what the access should be. The evidence at trial was reasonably brief. I find that the evidence adduced at trial was necessary (even without Mr. D.S.’ participation) to enable the court to understand the facts and the rather unusual situation regarding access. The evidence at trial was also necessary to formulate the terms and conditions necessary for the supervision order. Also, there was no indication of any offer to settle being served in this case. I also note that Mr. D.S. is on ODSP (as is Ms. T.O.). There will be no order as to costs.
FINAL ORDER
[50] For reasons set out above, a final order shall issue as follows:
The child, A.J.O. , born […], 2007, is found to be in need of protection pursuant to s. 37(2)(b)(i) of the Child and Family Services Act;
A.J.O. shall be placed in the care of his mother, T.O., for a period of 12 months subject to the supervision of the Children's Aid Society of London and Middlesex (“the Society”) on the following terms and conditions:
a) The mother, T.O., and the father, D.S., shall attend and participate in all scheduled meetings with a worker from the Society, as requested;
b) The mother, T.O., and the father, D.S., shall sign all necessary consents for the release of information to and from the Society and medical and community service providers, as deemed necessary by the Society;
c) The mother, T.O., shall refrain from the use, and/or from being under the influence, of alcohol or illegal substances at any time;
d) The mother, T.O., shall participate in counselling/services/programs as recommended by the Society and shall comply with all recommendations arising therefrom;
e) The mother, T.O., and the father, D.S., shall participate in counselling or programs as recommended by the Society in relation to promoting and reinstating access between the child, A.J.O. , and the father, D.S., and shall comply with all recommendations arising therefrom;
f) The mother, T.O., and the father, D.S., shall permit announced and unannounced visits to their homes by a Society worker;
g) The mother, T.O., and the father, D.S., shall permit a Society worker to have access to the child on both an announced and unannounced basis to speak with the child either in private or in the presence of either parent, at such location as determined by a Society worker;
h) The mother, T.O., shall register immediately for, and shall complete, the entire eight week relapse prevention group program at Addiction Services of Thames Valley or, in the alternative, such other similar program as may be approved by the Society;
i) The mother, T.O., shall attend Alcoholics Anonymous meetings on a regular basis, not less than once every week, and she shall keep a record of the meetings attended and provide that information to the Society;
j) If recommended by the Society, or a counselor at Thames Valley Addiction Services, the mother, T.O., shall obtain a sponsor to assist her with maintaining her relapse prevention strategy;
k) The mother, T.O., shall participate in random drug testing as requested by the Society and, as a minimum, the drug testing shall include a random drug test for alcohol at least once every month.
The Society forthwith shall serve the father, D.S., with a copy of the reasons for judgment and a copy of the final order as signed and issued and this service shall be effected both personally and by regular mail addressed to the father, D.S., at his last known address according to Society records;
The father, D.S., shall have access to A.J.O. subject to the following terms and conditions:
a) The Society shall implement immediately, and if necessary pay for, the child to have appropriate therapeutic intervention to ascertain the reason for the child’s reluctance to attend at access visits with the child’s father and to develop a strategy to assist the child, the Society and the parents in implementing access between the child and the child’s father;
b) The father, D.S., shall have a series of four access visits once every two weeks, to start not later than three months after the date of this order, with the access visits to be supervised by the Society and with the said access visits to be approved by the child’s therapist;
c) If the supervised access visits occur, and are successful, the father, D.S., shall have unsupervised access visits to be arranged by the Society, in consultation with the child’s therapist, and to occur once every two weeks, and with the duration of each access visit (including whether the visit is overnight) to be specified by the Society in consultation with the child’s therapist;
d) The Society has the right to have a Society worker present in the respondent father D.S.’ home to observe any interaction between the child and the father, D.S., and the Society shall give advance written notice of same to the father, D.S.;
e) If any issues arise implementing this access order that cannot be resolved between the Society, the mother, T.O., and the father, D.S., then a proceeding may be commenced by the Society, or the mother or the father to deal immediately with the access issues or to seek the direction of the court in relation to any access issues.
- There shall be no order as to costs.
“Justice Victor Mitrow”
Justice Victor Mitrow
Released: January 29, 2013
COURT FILE NO.: C174/11-01
DATE: January 29, 2013
ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT
BETWEEN:
Children’s Aid Society of London and Middlesex
Applicant
- and -
T.O., D.S., J.W.1 and J.W.2
Respondents
REASONS FOR JUDGMENT
MITROW J.
Released: January 29, 2013