SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FC-09-625-04

DATE: 20130809

RE: The Children’s Aid Society of the County of Simcoe, Applicant

AND:

S.H. and J.B., Respondents

BEFORE: The Honourable Madam Justice L.M. Olah

COUNSEL:
Lori Gibson, for the Applicant

Linda Paterson-Kelly, for the Respondent S.H.

Beth Kibur, for the Respondent J.B.

HEARD: May 13, 2013

WARNING

This is a case under Part III – Child Protection, of the Child and Family Services Act, R.S.O. 1990, c. C-11 and is subject to subsections 45(8) and 76(11) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, R.S.O. 1990, c. C-11, which deals with the consequences of failure to comply with subsections 45(8) and 76(11), read as follows:

45(8) PROHIBITION: IDENTIFYING CHILDREN – No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.

76(11) PUBLICATION – No person shall publish or make public information that has the effect of identifying a witness or a participant in a hearing, or a party to a hearing other than a society.

85(3) OFFENCES – A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

JUDGMENT

Olah J.

Introduction

[1] This matter comes before the court as a Motion for Summary Judgment by the Society and a cross motion by the Father for the return of the child into his care, or in the alternative in the joint care of the Father and Ms. L.L., the Paternal Great-Grandmother of the child, subject to the Society’s supervision, or an interim order placing the child in the care of the Father and Paternal Great-Grandmother.

[2] The Mother has not filed an Answer and Plan of Care but has filed affidavits in support of the Father’s Plan of Care.

Background

[3] The Father, age 22, and the Mother, age 28, have a history of involvement with the Society.

[4] There have been historic concerns about the parents’ use of drugs, criminal behavior, lack of stability, condition of the parents’ home, supervision of the child and their parenting skills.

[5] Both the child who is the subject of these proceedings S.L.H., and her brother G.M.H. were born addicted to substances, including oxycontin, methadone and marijuana and both babies spent prolonged periods of time in hospital recovering from withdrawal symptoms.

[6] Their first child, G.M.H. born[…], 2009, is currently in the care and control of the Maternal Grandmother, age 51, and aunt, age 31. He has been in their deemed custody for over 4 years. The Mother and Father have frequent access with G.M.H. He is not the subject of these proceedings.

[7] Following her birth on […], 2011, the child S.L.H. was apprehended by the Society and remained in care approximately 8.5 months, residing with foster parents. S.L.H. also spent approximately 40% of her time each week in the care of the maternal aunt who also cared for her brother, G.M.H.

[8] The parents exercised access to the child, S.L.H., 3 times per week for 3 hours each as well as access at the home of the maternal family as approved by the Society.

[9] In June 2012, the parents’ access was expanded to unsupervised days and overnights at their home; and, the child S.L.H. was returned to their care on July 13, 2012 under a 6 months supervision order.

Re-apprehension

[10] On about November 13, 2012 S.L.H. was re-apprehended from her parents’ care as a result of a text message sent from the Mother’s telephone to the Society worker’s cell phone.

[11] The Society’s interpretation of this event was that the Mother texted the social worker by accident, intending to contact a third-party to arrange for a drug deal.

[12] Later the same day, on November 13, 2012, after the “accidental” text, the Mother left a text message with the social worker with differing details of the incident: “while on her porch, she had lent her telephone to a passerby.” Subsequently, on the same day, she left a telephone message with the social worker indicating that “she was downtown and had someone use her telephone and they texted some pretty weird things on her phone. They were trying to do drug deals on her phone.”

[13] The Father was in no way implicated in this alleged criminal behavior and has put forward an independent plan, separate from that of the Mother.

[14] Upon re-apprehension, the child, S.L.H., was placed with the same foster parents with whom she was placed for the 8.5 months previous to her re-apprehension.

[15] The child is currently healthy and meets all milestones. Her foster parents wish to adopt her.

[16] Accordingly, the Society seeks a Crown Wardship order without access for the purposes of having the child, S.L.H., adopted by the foster parents.

Society Concerns About the Parents

[17] As a result of the events surrounding the re-apprehension, the Society remains concerned with respect to the Mother and Father’s ongoing substance abuse issues; even though, with respect to the Mother, the Society was advised by the methadone clinic that between October 2012 and February 2013, the Mother presented with clean urine screens; however, since February 2013 to date, no other screens were provided by the Respondent Mother, exacerbating the Society’s concern about drug use.

[18] As well, the Respondent Father has not produced urine screens to evidence his alleged sobriety. In particular, because he was without an OHIP card, he could not be a patient of the methadone clinic, as he alleged. At the very least, the Society alleges that the Father provided a false affidavit and/or a misleading affidavit with respect to his attendance at the methadone clinic. Of greater concern, is the fact that the Society has not received clear screens for his drug use since April 2012. Further, with respect to the Father’s drug sobriety, since receiving the Father’s Plan of Care in March 2013, the society requested the Father to undergo a hair follicle test at the Society’s expense. To date, no such test results have been received. Accordingly, the Society’s concerns with the Father’s drug use have continued, even though the Society did not move to compel such production.

[19] In an attempt to mitigate the Society’s concerns about drug use, the Father and Mother have identified that they have attended and continue to attend Narcotics Anonymous through the Barrie Native Friendship Center. Apparently, both are clients of the Aboriginal Health Outreach Program at the Barrie Native Friendship Center. The March 11, 2013 letter references the parties as recent clients, who have “recently completed an intake.”

[20] Not only is the Society concerned about the parental drug use, the Society is also concerned about the parents’ criminal history. Prior to the return of the child on July 13, 2012, the Society was aware of the parents’ criminal history from 2011 which included numerous break and enters, theft and possession of illegal substances. However, the Society was not aware of the fact that the parents were on probation for the possession of illegal substances in association with another incident in May of 2012, arising from the parents being caught by the police when purchasing fentanyl patches. Unaware of this deception, and trusting the parents’ assurances that the criminal activity was at an end, the Society concluded that the parents, who demonstrated clean urine screens, improved their sobriety and lifestyle, improved focus on attending access regularly and communicating openly with the Society, were ready to safely parent the child. As a result, on July 13, 2012, the child was returned to the parents’ care. These concerns about the May 2012 drug incident only surfaced after the re-apprehension.

[21] Also, after the July 13, 2012 return, the Society was increasingly concerned about the Mother’s continued association with individuals known to the Society for criminal behavior and admission that she allowed such individuals to care for her child despite the order of Justice McDermot, dated July 13, 2012, to “refrain from associations with persons known to be using illegal substances and who have involvement in criminal activities.”

[22] Unfortunately, being aware of the impropriety of the Mother’s choices in child care, the Father took no steps to ensure the child’s safety. After the July 13, 2012 return, his willful blindness was exacerbated by the fact that the Father continued to work long hours leaving the Mother to primarily care for the child. Of particular note, is the Father’s minimization of the Mother’s “texting event”. He refers to this incident as an “unfortunate event”, underscoring his lack of understanding of the risk posed to the child by virtue of their association with the drug culture.

[23] In addition to its concerns about drug use and criminal associations, after the July 13, 2012 return, the Society’s concerns about the ability of the Mother to parent continued and the Father was made aware of the Society’s protection concerns as the Society met with the Father on a regular basis discussing all of the Society’s expectations and concerns. Despite requests to do so, the Father did not address the baby gate and television concerns. Nor did he address ongoing issues related to the Mother’s parenting: - lack of routine and stimulation, or hoarding issues - the child was in a home where she could not be mobile.

[24] As well, he did not address the ongoing issue in regards to the Mother’s mental health. According to the foster mother, the maternal aunt and the Paternal Great-Grandmother, the Mother continued to be fairly inappropriate in front of both children – swearing and getting upset, continuing to ignore the emotional impact of her behaviors on the children.

[25] Further, during the period from July 2012 to November 2012 stability concerns relating to housing and budgeting were addressed by the Society with the parents. In October 2012, the Fire Marshall’s Office was called to the parents’ landlord and the parents were requested to clear the hallways and discard excess items from the home in order to meet the Fire Safety Code. The parents complied with the order, however tidiness has not been maintained. Since the child’s second apprehension, the Society has not been permitted into the parental home despite making numerous request to do so, the most recent being on April 4, 2013. As such, at the time of the motion, the society was not aware whether the mother continues to reside in the apartment or the current state of her home.

[26] In addition, with respect to housing, when the parents moved, as a result of an eviction notice, they failed to provide the Society with an address. The Society was informed of the Father’s whereabouts from his April 17, 2013 affidavit, where at paragraph 10, he states that he is living with his Paternal Great-Grandmother. The Father does not disclose his plans with the Mother, whereas the Paternal Great-Grandmother states that the Mother would not be living in the home but she would have access to the child.

[27] Both parents had financial difficulties, despite the fact that the Father was employed since August 2012 on a full-time basis and earned $2000 per month and the Mother received Ontario Works. They were unable to maintain stable housing or basic needs. On October 12, 2012, the Mother indicated she required assistance for food supplies for the child. The Society and other community resources, such as Mother Care and the Busby Center, provided the family with assistance by supplying formula, diapers and clothing, the Mother indicating that the Father was not giving her any money and this was a source of conflict between the parents.

[28] Even though the Society worked on budgeting with the parents, they were not receptive to this education. Such that, despite the fact that the parents were allegedly having difficulties paying the rent, utilities and maintaining the basic needs of the child S.L.H., the Mother purchased two pets (a dog and a cat) as well as jewelry and cosmetic contact lenses – a reflection of the parents’ poor judgment.

[29] This poor judgment, and poor parenting continued despite the fact that the parents received counseling, parenting education, daycare, transportation, access to Mother Care and the Busby Center.

[30] With respect to improved parenting, the Father counters that he (and the Mother), had completed a parenting program provided in partnership with the Barrie Learning Center named the “Parents As Partners” programme. The Father and the Mother attended the programme three hours weekly between January 16, 2013 to March 6, 2013. This programme covered topics such as self-esteem, anger management, responsibility, and goal setting for parents of children of all ages. However, their attendance has not been stellar. For the “Effective Parenting” programme, they attended 4/8 sessions.

[31] The Father (and the Mother) had signed up for and attended five sessions of the second parenting programme from April 10, 2013 to May 8, 2013, namely “Cool Solutions” provided by the same agency and this programme is still in progress.

[32] In addition, the Father (and the Mother) had retained the services of Ms. L. Dumais, an aboriginal Healthy Babies/Healthy Children worker. The details of the assistance given by Ms. Dumais, or are the number of attendances with respect to the services, are missing.

Kinship Plan of Care

[33] In this case, kin involvement is a significant issue, as this child has had an ongoing relationship with relatives on both sides of the family. As such the Society has investigated the availability of kin to provide for the long term placement of the child.

[34] Initially, the maternal aunt indicated a desire to present a permanent plan for the child if the child could not be returned to the care of the mother and father. Unfortunately, the maternal aunt was unable to follow through with such a plan as she already had the primary care of S.L.H.’s older sibling G.M.H., as well as being a mother of two of her own children.

[35] At the Father’s request, the Society initiated a meeting with the Paternal Grandparents and a member of the Society’s adoption department. Despite her haphazard relationship with the parents, the Father’s stepmother, Ms. L.M., filed a Kinship Plan of Care with regard to the child S.L.H. She did not indicate that she sought to adopt the child, rather she put forward a plan for a temporary or permanent kinship placement. At the time, Ms. L.M. did not physically reside with the Mr. L.B., the paternal grandfather. Further, Ms. L.M.’s plan of care was assessed by standards of an adoptive assessment, in particular by the SAFE guidelines that are used for people who wish to adopt in Ontario. For the Society, the outcome of the meeting was that the paternal grandparents were unlikely candidates for S.L.H.’s adoption. Nevertheless, the paternal grandparents’ home was approved for the purpose of facilitating supervised access visits for the Mother and Father.

[36] The most recent kin placement proposal was reflected in the Father’s Answer and Plan of Care, which describes the Father’s plan as follows:

(i) the Father and child shall reside with the Paternal Great-Grandmother, Ms. L.L., age 70, in her home;

(ii) the Father shall continue to work full time;

(iii) the Paternal Great-Grandmother shall continue to work full time as a real estate agent;

(iv) the child shall be enrolled in the YMCA Ferndale in the daycare program; on a daily basis, 5 days per week;

(v) the Father will only permit persons approved by the Society to care for the child;

(vi) the Father shall continue to engage in the support services as required by the Society;

(vii) the Father will continue to receive additional support from members of his extended family and the Mother’s extended family as needed;

(viii) the Father will cooperate facilitating the Mother, S.L.H.’s access with the child on terms as approved by the Society;

[37] The Paternal Great-Grandmother is presented by the Father to have much experience parenting her children, grandchildren and great-grandchildren and working as a Sunday school teacher and nursery teacher. She is also a full-time real estate agent who supports access between the child and her mother and extended family. She is financially capable of providing support to the child, if needed, on a long-term basis. She is also prepared provide a medical note from her doctor regarding her physical fitness.

[38] Her primary caregiving role is crucial for the child’s waking hours, as the Father works from 6:30 a.m. – 6:30 p.m., sometimes six times per week. And, when the Paternal Great-Grandmother works and the Father works, the child will attend fulltime daycare or will otherwise be cared for by the Mother or other members of the extended family.

[39] Questioning the Father’s intentions to be the joint or primary care giver, the Society deposes that the Father was offered access to the child 5 visits per week, 4 hours per visit, yet, he only exercised access to the child 2 times per week on average, for 1 hour each visit. Despite the fact that the foster parents have invited the Father to attend Doctor’s appointments, swimming lessons, and birthdays, the Respondent Father has attended one Doctor’s appointment and has not attended her birthday celebration and swimming lessons. According to the Society, such poor attendance underscores the Father’s true intentions; especially since the Father asserts that his employer is flexible and can adjust his schedule to attend to the future needs of the child.

Child

[40] During the four months from July 2012 – November 2012 when she was in supervised care of her biological parents, having bonded with the foster parents, she continued to have an ongoing relationship with the foster parents. According to the Society worker, although she is fond of her Mother, Father and other relatives, the child appears to be more attached to the foster parents and to the maternal aunt, than others.

Native Heritage

[41] Other than the kinship issue, another interesting issue is that of native heritage. During the course of this Motion for Summary Judgment on an early Status Review, and for the first time, the parents have raised the issue of the child’s native heritage.

[42] At the time of the consent order on July 13, 2013 there was no finding of native heritage. Currently, at the early Status Review hearing the parents suggest that it is mandatory for the Society to address the issue of the child’s heritage. The reasons cited for such position are as follows:

(i) The parents have been actively engaged with Aboriginal Support Services since at least August 2012 by virtue of their utilizing the services of Ms. L. Dumais.

(ii) They have further participated in native community events and counselling programs at the Barrie Native Friendship Centre, the details of which are missing.

(iii) The Respondent Father has provided a copy of his family tree demonstrating his native heritage.

[43] Despite the finding, wherein there was no identification of native status, he suggests that it is the Society’s obligation, on a Status Review, to once again inquire of the Father about his native heritage or membership in a native community and to make provisions in its Plan of Care to recognize the importance of the child’s native culture and preserve her current heritage, traditions and cultural identity.

[44] With no corroborating evidence, the Mother, too, identifies with the native community because a Great-Grandparent on her mother’s side was allegedly Metis.

Conclusion

[45] The onus is on the Society to establish a prima facie case that there is no realistic probability of an outcome other than the one sought.

[46] The Society has not discharged this onus to prove that it is in the best interests of the child to be adopted by the foster parents, for several reasons:

(i) Despite the fact that the Mother has not filed an Answer and Plan of Care, the Society did not proceed by way of a default order against her, raising the question whether the Society believes the Mother has some redeeming parenting skills. She has participated in the proceeding by way of supporting the Father’s Answer and Plan of Care. Further, given that the Father requests the care and control of the child, the Mother’s access, if any, becomes a triable issue, through the Father’s Plan of Care.

(ii) As the child’s re-apprehension was precipitated by the Mother’s “texting incident”, for which the Mother has given at least three explanations, an examination of what transpired and an identification of the legitimacy of the re-apprehension is a significant issue. Regardless of their perceived weaknesses, there are explanations for the event - explanations which must be tested by cross-examination to establish the Mother’s credibility or lack thereof.

(iii) The Father, too, has given explanations of his attendances at parenting courses, asserts (but does not prove) that he is drug free, asserts his crime free existence since May 2012, asserts his full time employment since August 2012. All must be subject to cross-examination to establish his credibility as to his improved parenting ability. This is especially so since the concern about the Father’s parenting, drug use, criminal association was not the basis of the re-apprehension, and these concerns crystallized after the re-apprehension.

(iv) The Father has asserted his claim to native heritage which affects the issue of notice of these proceedings as well as placement. Despite the weakness of the evidentiary basis for a conclusion of native heritage, the issue must be properly addressed, through examination in chief and cross-examination, as it may significantly affect the child’s placement.

(v) The best interests placement with kin is also a unique feature of this case. The rejection by the Society of family members for various reasons must be flushed out at trial, especially as it has been challenged by two members of the extended family. At trial, a judge will be in a better position to assess what long-term placement will be in the best interests of the child; whether the good intentions of a 70 year old great-grandmother trumps the need of the child to have a permanent home with two stable and loving parents; whether the placement of the child in daily day care in order to address the needs of two working caregivers (the Father and the Great-Grandmother) trumps the need to be in the care of foster parents who have parented her for in excess of 14.5 months (cumulatively); whether the good intentions of other family members to provide interim care until one or both of the parents are well enough to permanently care for the child, trumps the needs of the child to have a permanent home, now, as required by the legislation.

(vi) The Society acknowledges that the child is fond of the Respondent Mother, the Respondent Father and extended family and that the child is particularly fond of the maternal aunt and foster parents. This fondness is equated to attachment to the foster parents only, but this attachment must be compared to any attachment to the parents and kin and assessed as to its validity. Further, the issue at trial will be whether the attachment of the child to the foster parents equates to the best interests of the child. Also, the issue at trial will be whether kinship placement trumps the attachment of the child to the foster parents and her best interest needs pursuant to the legislation. As the legislation prohibits the warehousing of infants and mandates permanency planning, in this case, a judge with a complete evidentiary record is better able to assess whether the Father has transformed and he and the Great-Grandmother can best provide a safe and forever environment for the child.

[47] If I am wrong in my conclusion that the Society has not presented a prima facie case, then, for the reasons above, I find that the Father has established genuine issues for trial.

[48] Accordingly, I dismiss the Motion for Summary Judgment.

[49] The matter to proceed to trial at the earliest possible date.

[50] The matter should be scheduled for a Trial Management Conference within 30 days of this decision. If no date is available, I permit the Trial Management Conference to be added to my existing Society list to facilitate the expedition of this trial.

Motion for Interim care

[51] The Father’s Motion for interim care pending trial is dismissed. Moving the child from a stable placement at this time is not in the child’s best interest and therefore is not warranted at this time.

L.M. OLAH

Date: August 9, 2013