This is a case under Part III of the Child and Family Services Act and is subject to subsections 45(8) of the Act. This subsection and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply with subsection 45(8), read as follows:
45.-(8) 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.
85.-(3) A person who contravenes subsection 45(8) (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.
COURT FILE NO.: C1130/11
DATE: 2013-09-13
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Catholic Children’s Aid Society of Hamilton
Applicants
– and –
C.C. (the Mother)
And
A.S-A (the Father)
Respondents
Ms. Mona Anis – Counsel for the Applicants
Ms. Alisa Williams – Counsel for the Respondent mother
Ms. Amy Katz – Counsel for the Respondent father
HEARD: April 3rd (pm), 4th, 5th, 8th (pm) 9th, 10th, 11th, 12th, 15th, 16th, 17th, 18th, 19th, 22nd (pm), 23rd and 24th, 2013.
THE HONOURABLE MADAM JUSTICE MCLAREN
Background
[1] A trial was held before me in this matter in April 2013.
[2] On September 7th, 2011 a final Order was made for findings that the child, C-L.S. born January 30th, 2011, was in need of protection, not eligible for Native or Indian status, and neither Roman Catholic or Protestant. The matter that proceeded before me was therefore pursuant to a Status Review Application. There were no requests to change any of the findings.
[3] The significant people in this matter will be referred to herein as follows:
C-L. S. was born on January 30th, 2011. She is the child who was the focus of this trial. She will primarily be referred to as C-L.
C.C. is the mother of C-L. She will be referred to primarily as “the Mother” herein. She was born on November 19th, 1991.
A. S-A. is the father of C-L. and he will be referred to primarily as “the Father” herein. He was born on September 14th, 1992.
B.B. was born on October 3rd, 2012. She is the second child of The Mother C.C. and therefore a half sister to C-L. There is no issue before me regarding B.B.’s future. A trial regarding B.B. has been scheduled.
Coty F. is the father of B.B. and he was not involved in the trial regarding C-L.
Tracie S. is the mother of A.S-A. and therefore is the paternal grandmother of C-L.
Richard B. (or Rick B.) is the husband of Tracie S.
[4] The Catholic Children’s Aid Society of Hamilton-Wentworth (the C.C.A.S. or the Society) seek an order for Crown Wardship of C-L without access for purposes of adoption.
[5] The Mother seeks placement of C-L with her. She is prepared to work with the C.C.A.S. under a supervision order. She is also agreeable to having a transition period where the child is placed with Tracie S. and then with her. She would also be willing to enter into a shared parenting arrangement with the paternal grandmother.
[6] While the Mother wants the child in her care and feels that is best for the child, she is willing to consider alternatives that include the paternal grandmother. She would also prefer placement with Tracie S. to Crown Wardship.
[7] Tracie S. seeks placement of C-L with her. She is not a party to this action, but she was considered as a kinship care provider. It was agreed by the parties that she did not have to become a party. Her position was supported by the Father and it could be presented to the court as part of the Father’s plan without her becoming a party.
[8] The Father did not attend the trial once during the 16 days it was in progress. His lawyer said his position was that he supported placement of the child with his mother, Tracie S.
[9] The child C-L was in the primary care of the Mother for the first several months of her life. She was taken to McMaster Hospital in Hamilton on June 27th, 2011 by the parents. C-L had a head injury that was considered by the doctors to have been caused by non-accidental head injury. The C.C.A.S. was already involved with the family on a volunteer basis and they apprehended the child. C-L has been in foster care ever since.
[10] A joint investigation was conducted by the C.C.A.S. and the Hamilton Police Child Abuse Branch. However, the results were that the issue of who inflicted the injuries was unsolved due to the large number of people involved with the child and the extensive time in which the injuries could have occurred.
[11] An Order was made on consent for a Parenting Capacity Assessment (P.C.A.) to be done by the London Family Court Clinic regarding both of the Mother’s children (C-L.S. and B.B.).
[12] A final report was written by Dr. Ashbourne and it was dated February 28th, 2013. Although I am only dealing with C-L, the report contained recommendations for both children. It was recommended in the report that subject to various conditions, the child B.B. could be returned to the Mother. After six months of stable full time care of B.B. and other conditions being met, the Society could then begin the gradual re-integration of C-L into the Mother’s care.
[13] The report for the home study of Tracie S. was called the SAFE Kinship In Care Homestudy Report. The term SAFE refers to a Structured Analysis Family Evaluation. A formal report was completed by Jennifer Liscombe for the C.C.A.S. That report was completed in February 2013. The results were that the paternal grandmother was not approved as a kinship care provider.
RULING REGARDING REFERENCES
[14] On April 12th, 2013, I made a Ruling during the trial with brief oral reasons. It is appropriate to repeat them within the context of this judgment.
[15] Tracie S. gave written authorization for release of the SAFE Kinship In Care Homestudy Report during the trial. The report contained the names of all references that were provided by Tracie S. and Richard B. The comments of the referents were summarized by Ms. Liscombe who prepared the report.
[16] While many of the comments were positive, many were negative. Counsel for the parents wanted an order that the actual reference forms completed by the referents be released along with the identity of the people who made the comments. They wanted this information in order to present the case of the parents and to know who to call as a witness from among the referents. The C.C.A.S was opposed because they told the referents that the information they gave would remain confidential.
[17] I considered the arguments and ordered the information provided by the referents to be released. This should not be a common occurrence in my view, because the C.C.A.S. made a good point when counsel said that people might hesitate to participate in a study like this, if they knew that the information they provide would be linked to them. However, I felt that the circumstances in this case justified the release of the names. This type of Ruling will need to be made on a case by case basis.
[18] The following points were all factors in my decision:
(i) The C.C.A.S. provided the court with the case of C.C.A.S. v. T.Y. (mother) and B.M. (father) (2007) O.J. No. 5135. This was a decision of mine and it was dated
December 27th, 2007. In that case I denied the request to release all documents that related to the investigation and approval of the maternal aunt and uncle as kinship providers for a 4 year old child. The mother was noted in default. Prior to a motion for summary judgment brought by the Society the father brought a motion. He said he wanted all documentation as disclosure. The aunt and uncle were kinship foster parents and the information provided would have included financial information, medical history, information from third parties, etc. It seemed to me that this was a fishing expedition on the part of the father and that he did not need all this information about approved kinship providers in order to argue the motion for summary judgment. If the motion for summary judgment was successful, then an order for Crown Wardship without access would be made and the placement plans of the Society would be irrelevant.
I did not see this case as being very relevant to the case at hand. Tracie S. and Rick B. were turned down as kinship providers and had a plan of their own to have the child placed with them. The circumstances were very different than that of C.C.A.S. v. T.Y. and B.M.
(ii) The kinship report in the case at hand was sufficiently negative that Tracie S. and Rick B. were not recommended as caregivers. This couple were still seeking placement however and they were the only relatives to come forward with the exception of the Mother. It was important to them to know the case they had to meet.
(iii) The homestudy report was released to Tracie S. and Rick B. and to the other parties and counsel and to the court. This all happened on consent. The comments from the referents and the names of the referents were known. It would not be too difficult to figure out “who said what”. All Ms. Katz (for the Father who supported placement with his mother Tracie S.) would have to do would be to call every referent as a witness.
(iv) A big part of the C.C.A.S. position regarding placement with Tracie S. was that her judgment was poor in giving several names as references who had negative things to say about her. Since this fact was key to their position, it appeared appropriate to me that the names and their co-responding comments should be revealed. This was particularly so when I considered that the information could easily be obtained by calling the referents as witnesses.
[19] I concluded that the need for confidentiality should not be easily overlooked and must be dealt with on a case by case basis, but it was appropriate in this case. As such, the C.C.A.S. provided counsel with copies of the SAFE Reference Form which included the written responses from the referents and responses obtained from interviews by telephone.
WITNESSES
[20] The following witnesses testified during the trial:
Dr. John Burke Baird.
Dr. Sheila Singh
Rosy VanBerkel
Alda Grigaitis
Jennifer Liscombe
Karen Ward
Alice Kneebone
Brad Clark
Chad Wittemore
Evgeny Neiterman
Colleen Richardson
Cindy Ridos
Dr. Dan Ashbourne
Mary C. (also referred to as the maternal grandmother)
Ezra Branderhorst
C.C. (also referred to as the Mother)
A.S-A. (also referred to as the Father)
Cory H.
Tracie S. (also referred to as the paternal grandmother)
Richard B. (or Rick B.)
Lorraine C.
Laura F.
Gordon F.
Richard S. (son of Tracie S.)
(The names of the immediate family have been shown by initials and the names of the extended family and some friends have been shown by first names and initials for last names).
[21] There were also videos of police interviews shown which will be referred to. These were for C.C. (the Mother) and A. S-A. (the Father of the child C-L.).
[22] I will summarize the evidence of the witnesses.
[23] Dr. John Burke Baird testified. He has been a paediatrician since 1998 and is a staff paediatrician with the Child Advocacy and Assessment Program (CAAP) at McMaster Children’s Hospital. A report that he wrote dated November 16th, 2011 was filed. He was qualified as an expert. The CAAP team was consulted to provide an opinion regarding the possibility that C-L may have experienced an inflicted injury. C-L was admitted to McMaster Children’s Hospital following a diagnosis of bilateral subdural haemorrhages. Surgery was required to evacuate the blood and remove the pressure on the brain. In his report, Dr. Baird noted the following:
C-L’s head appeared to be significantly larger than would be expected for her body size. It was measured and found to be well above the 95th percentile. This meant that 95% of all children would have a smaller head. This was noted during her Emergency Department visit. Multiple retinal hemorrhages were noted. A review of family history did not reveal any inherited blood clotting disorder, and there was no history of unexplained bruising or bleeding.
Subdural hemorrhages resulted in an increase in the pressure inside the child’s skull, causing her symptoms of acute and significant vomiting.
Dr. Baird was of the view that the falls from the infant swing that were described were unlikely to have been of such magnitude to cause the extensive bilateral hemorrhages with which the child was diagnosed.
There is debate in the medical community as to whether or not “shaken baby syndrome” would cause brain swelling/injury, subdural hemorrhages and retinal hemorrhages. If the Father tossed the child in a manner which caused her head to flop around forcefully and without support, these movements could have caused C-L’s head to experience significant liner and angular/deceleration forces sufficient to cause subdural hemorrhages.
It is possible that there was a re-bleeding in an older area of subdural bleeding which was caused by minimal trauma. However a significant amount of force would have been required to cause the initial hemorrhage. The second hemorrhage would then be the result of a significant force, or a minor force, or even spontaneous.
The clinical presentation of infants and children with subdural hemorrhages and/or brain injury may include enlarged head sizes, irritability, lethargy, fatigue, restlessness, crying, vomiting, etc. In C-L’s case, the subdural hemorrhage resulted in an increase in the pressure in her skull resulting in symptoms of acute and significant vomiting.
Dr. Baird wrote that C-L’s subdural injuries were highly suspicious for inflicted injury.
The medical assessment ruled out a medical cause for C-L’s retinal hemorrhages.
The falls from the swing that were described were too minor to cause the extensive retinal hemorrhages. It is possible that significant repetitive unsupported head flopping caused C-L’s retinal hemorrhages.
It is probable that more than one traumatic injury occurred given the probable ages of the blood comprising the subdural hemorrhages and the extent of the retinal hemorrhages.
Dr. Baird did not believe that a fall from the swing would have caused the initial hemorrhages, but one or more swing falls could have resulted in a re-bleeding.
Dr. Baird concluded in his report that the injuries were both highly suspicious of inflicted trauma.
[24] During his testimony Dr. Baird explained details of his report both in examination in chief and cross examination. He mentioned that the type of force that would have had to have been given, would be such that any competent caregiver would clearly recognize as being likely to cause harm. The fall from the swing at that height would not be enough. He was of the view that more than one traumatic injury occurred. He could not say when the injuries occurred. He stated that a re-bleeding would not cause the degree of injury or trauma.
[25] Dr. Baird commented that doctors see dozens of children with bumps to the head etc, but rarely with these injuries. Dr. Baird also concluded that there were no reasons to believe that the injuries were caused by accidental injury (such as a fall), birth trauma, metabolic disorder, or a bleeding disorder.
[26] He believed the brain injury and the various hemorrhages were caused by an inflicted injury.
[27] Dr. Sheila Singh testified. She is a pediatric Neuro-Surgeon and she was qualified as an expert. Five different reports from her were filed.
[28] Dr. Singh was consulted after the child had an M.R.I. scan. In her consultation report dictated on July 2nd, 2011, she noted that the parents reported forceful vomiting, being six episodes in two days. There were no known developmental delays in the child’s history. Dr. Singh explained the findings of the M.R.I. scan to the parents and she wrote that:
“Both of them denied any head trauma whatsoever from the time of birth onward. The parties exhibited some level of concern for the baby, but were quick to leave multiple times for cigarette breaks during their stay with the baby and also were quick to leave to make calls on their cell phones, rather than stay at the bedside”.
[29] In this report Dr. Singh went on to report on her explanation to the parents about the need for surgery. She wrote as follows:
…However, I did explain to them that their baby was suffering from raised intracranial pressure secondary to the subdural hematomas, and I explained the surgical indications of bilateral bur hole drainage of the subdural hematomas and insertion of JP drains. I explained that from the subdural hematomas alone, which had been putting chronic pressure on their baby’s brain, it could be anticipated that C-L will have developmental delays, cognitive delays, potentially behavioural problems and potentially visual loss as the raised intracranial pressure could be transmitted to her optic nerves. In addition, I explained that the baby was at risk for functional problems in the future and possible neurological deficits, and this was reiterated at the bedside prior to surgery. The risk of surgery that I explained included death, stroke, brain injury from the drains, weakness of the limbs, further bleeding into the subdural space, which could require a craniotomy, and infection. They understood these risks and understood the need to proceed with surgery.
[30] Surgery was then consented to.
[31] The next written report from Dr. Singh was dictated on July 7th, 2011. It was called an Operative Report. An operation on C-L was performed on June 29th, 2011. It was referred to as “Bilateral Parietal burholes for drainage of subdural hematomas and insertion of subdural JP drain”.
[32] In this report Dr. Singh noted that the child had severe bilateral retinal hemorrhages which are consistent with non-accidental injuries or inflicted head injury. The procedure was described in this report.
[33] A consultation report dictated on November 4th, 2011 was provided. Dr. Singh saw C-L (by then 9 months old) on November 4th, 2011. She noted that C-L seemed to be somewhat delayed on her gross motor milestones, but this was going to be assessed.
[34] A clinic note was provided which was dictated on January 20th, 2012. Dr. Singh saw C-L that day. The child was 11½ months old as of this visit and progress was noted. However, the child was still found to have developmental delays.
[35] A report, dictated on January 4th, 2013 was provided. C-L was brought to see Dr. Singh on that day. It was noted that the child had made some excellent gains. By this time she was receiving developmental therapy, occupational therapy and speech therapy. Her vision was good.
[36] In the three reports written that were after C-L left the hospital and was in foster care, it was noted that the Mother attended all the appointments along with the foster mother.
[37] During her examination in chief and cross examination Dr. Singh explained the injuries and the surgery. She also stated that:
The collections of blood were of different ages suggesting multiple injuries.
The child’s head size upon admittance to the hospital was quite above normal for a baby of that age.
The child was drowsy during the examination.
The parents were present for the examination, but left several times for cigarette breaks and to use their cell phones.
She recommended the surgery be done right away to relieve the pressure on the brain.
There were two types of blood and therefore more than one injury. She explained how some blood would show an injury of over a month old. Other blood would show an injury of only a few days. Other blood would be for a medium period of a couple of weeks.
She felt that in the absence of a blood disorder, something would have happened to cause a re-bleeding.
The child would have felt pain from the injuries due to the mounting pressure.
The most common accident to cause such an injury would be a fall down stairs, the child being dropped, or a motor vehicle accident.
A force would have to be significant enough that the baby could not incur this injury his or herself.
In the absence of a fall, drop, or car accident, professionals must suspect a non accidental injury. On June 29th, 2011 the parents could not think of any accident or possible reason for the injury. After the surgery the parents asked her if the Father throwing the child in the air could cause the injuries and Dr. Singh said it was unlikely.
The child’s head size has normalized. She is at the top of the curve now and before she was over the curve, for a child of her age, etc.
C-L has made developmental progress, but she has global delays that will effect her life. The global delays are from these injuries.
C-L must avoid head injuries for life and activities where head injuries are possible.
The global developmental delays are likely to include gross motor development (walking, running, etc) cognitive (ability to learn, regulate her own behavior, judgment implusive).
For shaken baby behavior to have caused - the injuries - it would have to be substantial and repetitive and the child would have to have been thrown at great force.
The baby could have appeared to others (including the family doctor and public health nurse) as happy and content, because babies can learn to deal with pain.
There could have been a re-bleeding (as opposed to a second injury) but it would be rare, because all other non accidental factors have been ruled out.
The second injury can require less force, but it would require more force than just playing with the baby.
Dr. Singh has seen about fifty children within this age group with these types of injuries and the majority were determined to have had trauma or non accidental injuries.
The current or anticipated delays of gross motor development, fine motor development, speech and social skills are all delays that correlate with areas of the brain that were compressed by the hematomas. The pressure on the brain can cause delays and this is what she thinks happened.
[38] Rosy VanBerkel testified. She is a Public Health Nurse with the City of Hamilton and involved in the Healthy Babies Healthy Moms Program. All of her notes and records on the file were provided and Ms. VanBerkel testified about her involvement with the family.
[39] A report written by her on November 18th, 2010 was provided. At that time the C.C.A.S. was involved with the family on a volunteer basis and she sent her report to the C.C.A.S. Ms. VanBerkel noted in her report that:
The Mother was expected to give birth on January 28th, 2011.
The Mother had not attended any pre-natal classes. She attended one Welcoming Baby Class, but did not feel comfortable and did not return.
She had items at home that were needed for a baby and that she and the baby would share a room in her mother’s home where other family members lived.
During the Public Health Nurse’s visit there were a number of individuals present in the home along with a number of puppies.
The Mother said the Father was in prison but expected to be released before the birth. She said the Father had once burned her with a lighter and the relationship was terminated after that.
The Mother mentioned having several family supports.
[40] Ms. VanBerkel stated that she felt there was a high risk for this Mother and she was given a “high risk” rating. She noted that initially the Mother did not want to resume a relationship with the Father because of his life style, but in February 2011 she said she was back together with him. The witness was asked about various home visits described in her notes. For example, the February 28th, 2011 visit was cancelled because the family was moving, but most visits took place. A visit was then held on March 17th, 2011, and a joint family visit was held on April 17th, 2011. The witness said that on the March 2011 visit, the Mother said she was disappointed that the Father was not very involved with the baby.
[41] During a visit in May 2011, the witness noted that the Mother said she was going to court to get a custody order. The mother apparently added that the Father would just play video games when at her house and she wanted a father figure for C-L.
[42] The witness said she gave advice to the Mother about shaken baby syndrome after hearing the Mother relate the maternal grandmother’s report about seeing the Father toss the baby up in the air in a cradle position. Ms. VanBerkel said she then told the Mother to never leave the Father alone with the baby and the Mother agreed.
[43] The witness reviewed further reports that she and other staff wrote to the C.C.A.S. There was one written on February 10th, 2011. Another one was written on May 6th, 2011. As of the May 6th, 2011 report, Ms. VanBerkel and staff noted that:
The Mother presents as a loving gentle and attentive caregiver.
The Mother keeps most appointments.
The child C-L was meeting her milestones.
The Mother planned on continuing to reside with her mother.
The Mother was not in a relationship with the Father, but he continued to visit 4-5 times a week with little of his time there actually spent with C-L.
The Mother told the witness on the May 6th, 2011 home visit about the Father being seen tossing the baby in the air.
The Mother agreed that the Father should not be left unsupervised with the child.
The C.C.A.S. were considering closing their file in the next couple of months.
[44] There were no formal written reports after the May 6th, 2011, and prior to the child being placed in foster care.
[45] The home visitor saw C-L on June 9th, 2011 and apparently felt that the child seemed happy, but that her head was large for a five month old baby. Ms. VanBerkel also saw the child and said she was asleep and she could not see a difference between the May 6th, 2011 visit and the June 2011 visit.
[46] Ms. VanBerkel commented that she had concerns about the various moves by the Mother and the various people in and outside the home. She was not always aware of who they all were. She was also concerned about the Father. She said however that the Mother was co-operative and listened to suggestions from the Public Health Nurse visitors. None of them saw the Mother do anything inappropriate with the child and the visits were once per month.
[47] A home visit was made by this witness to the mother on July 26th, 2011 and a report was provided. The witness wrote that the Mother was agreeable to attending a parenting group and to receiving relationship counselling. She also reported that she and family members were a little frightened when the Father showed up unexpectedly on July 25th, 2011 to retrieve a bed. The witness reviewed a safety plan with the Mother and referred her to some sources for domestic violence and women shelters.
[48] Alda Grigaitis is a social worker and is a child protection worker with the C.C.A.S. She was the society worker with this family from May 9th, 2011 until early January 2012. Her evidence in chief was given by affidavit.
[49] She became involved when the police called the C.C.A.S. on May 5th, 2011 due to a domestic incident between the Mother and the Father herein. She met with the Mother several days later at the home of the maternal grandmother where the Mother was residing. She said the home was tidy and that the Mother changed the baby while she was there and the baby seemed fine. The Mother was described as having accepted her role in the argument.
[50] The mother said she had a good relationship with the Father and that he was helpful with C-L and got up in the night with her.
[51] On June 16th, 2011 Ms. Grigaitis spoke with the Mother by telephone and learned that the Father just got out of jail for stealing cars and that the Mother ended her relationship with him.
[52] On June 29th, 2011 Ms. Grigaitis learned of the child being admitted to McMaster Hospital with a head injury. It was described as a non-accidental head trauma and a police investigation was commenced. C-L was apprehended on July 8th, 2011.
[53] The concern of the society that led to the apprehension was that:
The head injury was not believed to be a onetime occurrence and it was a significant injury.
It was not possible to determine who harmed the child as there were various people in the house.
The child was noticed to have a large head weeks before attention was sought.
Dr. Baird ruled out a blood disorder and believed that the injury likely occurred over time due to the different ages of blood that was drained from C-L’s brain.
[54] Ms. Grigaitis showed the records from Dr. Greenspoon’s office and it was apparent that the Mother took C-L to see him from February 2nd, 2011 to May 3rd, 2011. Dr. Greenspoon is the family doctor for the Mother and child.
[55] This worker was present when the Father was interviewed by the police. He said he was never left alone with C-L and is not a violent person. He denied an allegation from the maternal grandmother that he shook the baby. He said he had her in the air once and she was smiling. He said the Mother was present and he demonstrated what happened. He held the doll with both hands and lifted it in the air above his head in a slow controlled manner. He said he only learned of C-L falling out of her swing after the police investigation began. He said that C-L slept in a crib, but that once or twice she fell asleep in her swing and was left there.
[56] Ms. Grigaitis said she asked the Mother why she did not take the child to see the doctor after the Public Health Nurse expressed concern about the size of the child’s head. She said it was because the Father had a big head and she thought it was normal, and that Dr. Greenspoon did not express any concerns about the head.
[57] The Mother allegedly told this worker that she never saw the Father toss the child in the air, but her mother told her about it, and she figured that he would not do it anymore as her mother told him not to. The Mother apparently was aware of the incident because she heard her mother yelling at the Father not to do it from another room.
[58] The Mother acknowledged that she did allow the Father to be alone with the child after that, but that she would not again.
[59] This witness also reported that she received a call from the maternal grandmother in November 2011 who advised that the Mother had gotten her 13 year old brother intoxicated on the weekend. She added that the Mother was residing at her older brother’s home (Russell) and that Russell was dealing drugs out of the home. When Ms. Grigaitis asked the mother about this, the mother said it was not true.
[60] This witness also said that she advised the mother a few times to seek housing, to attend school in order to finish high school, and to get counselling.
[61] On December 23rd, 2011, Ms. Grigaitis was contacted by Detective Lowry of the Hamilton Police Services who advised her that the investigation into C-L’s injuries was going to be concluded as “unsolved”.
[62] Ms. Grigaitis commented that during her involvement the Mother expanded from two one hour supervised visits per week to one four hour supervised visit and one five hour supervised visit. The father had one hour visit per week.
[63] She acknowledged during cross examination that she had a good working relationship with the Mother and that the Mother’s visits went well. At one time the plan was to return the child to the Mother.
[64] The witness commented that her main concern was that the Mother did not follow up with counselling. She wanted her to get counselling through the Women’s Outreach Services that would deal with domestic violence and its impact on children.
[65] Jennifer Liscombe testified. She has worked for the C.C.A.S. since 2004. She has had a few roles there but most recently she has been a placement worker or homestudy worker. Her duties included assessing the suitability of potential foster parents, extended family members, and/or community members to provide a safe, stable and nutritional home environment for children considered to be in need of protection.
[66] The evidence in chief of this witness was provided primarily by affidavit.
[67] Ms. Liscombe was assigned the job of assessing the suitability of Tracie S. and Rick B. to care for C-L by way of kinship foster care. At the time of her investigation Tracie S. and Rick B. were common law partners, but they were married by the time the trial commenced. She used the SAFE tools, which are part of a standardize process in Ontario when assessing the suitability of all foster kinship foster and adoptive applicants. She has been conducting SAFE home studies since 2008.
[68] Ms. Liscombe was assigned as the kinship care homestudy worker with this family in February 2012. She testified about all the factors she had to consider in coming to a conclusion as to whether or not she would recommend Tracie S. or Rick B. As part of her evidence she pointed out the following:
Tracie S. and Rick B. were very co-operative during the homestudy process and they demonstrated maturity and commitment.
Both Tracie S. and Rick B. participated in a provisionally standardize training program for prospective foster and kinship parents called PRIDE (Parent Resources for Information, Development and Education). They successfully completed the nine session, 27 hour, training course.
She felt that Tracie S. and Rick B. would be able to effectively advocate for C-L in regard to her developmental and rehabilitation services. They were both employed in the Long Term Care Health Sector in Hamilton for many years and were knowledgeable about health care services. They also participated in some of C-L’s medical appointments and were appropriate during those appointments.
[69] The names of several references were given to Ms. Liscombe by Tracie S. and Rick B. This is part of the process. All of the references were contacted and they were asked to answer several questions by way of a questionnaire. At least one preferred to respond by telephone. Elizabeth Minard from the C.C.A.S. helped with this part of the process.
[70] A report was filed as mentioned earlier herein, which contained the comments of the referents. The references included:
Gordon F. and Laura F.
Lorraine C.
Wanda H.
Diane G. (mother of Tracie S.)
Kandye M.
Ann S.
Rick S. (son of Tracie S.)
Anthony S.A. (son of Tracie S.)
Brad B. (son of Rick. B.)
[71] A minimum of five references was required in addition to the applicant’s own adult children.
[72] Ms. Liscombe commented that some of these references were positive, but some were negative.
[73] Despite the positive qualities noted by Ms. Liscombe she ultimately did not recommend Tracie S. and Rick B. to be kinship foster care caregivers. A summary of her reasoning is as follows:
(i) C-L has developmental delays due to non accidental traumatic brain injury while in the care of her birth parents.
(ii) Tracie S. had child welfare involvement as a child in her family of origin and as a mother to her own children. Her older two sons became involved in criminal activity as youths.
(iii) Tracie S. provided little parenting to her oldest son who was primarily raised by his paternal grandmother.
(iv) Tracie S. recently reunited with her father from whom she was estranged. He now lives in Tracie S.’s home and needs palliative care for cancer. He therefore has serious needs.
(v) Tracie S. and Rick B. began to live together in August 2011 and it therefore is a relatively new relationship. Tracie S. has three children by three fathers and none of these men are involved with these children. Rick B. has been married twice before.
(vi) Tracie S.’s youngest child lived with her and he has his own learning needs. He suffers from anxiety and has an individual education plan.
(vii) Rick B. still smokes but he has indicated a willingness to quit and he smokes outdoor. C-L has asthma.
(viii) Tracie S. and Rick B. were seeing a counselor, but the counselor refused to speak to Ms. Liscombe and this is required for the SAFE Homestudy process.
(ix) No police vulnerable sector check was provided for Tracie S.’s father.
(x) Tracie S. is off work on long term disability leave. This is in part due to the care of her father and a back injury but is also for stress and depression. She takes medication for anxiety and depression.
(xi) Several of the references raised concerns about Tracie S. and Rick B. Ms. Liscombe did not identify the references in her affidavit, but some of the negative comments included the following:
Poor money management.
Tracie S. is moody, stubborn and had difficulty raising her own children.
Concerns about her depression.
Lack of Routine.
Couple would not be able to put special needs child’s needs ahead of their own.
Relationship might break down.
Laziness and lack of commitment.
Tracie S.’s sedentary lifestyle.
Gambling was an historical concern.
Tracie S. is never home for her 12 year old child.
Concerns of money management, violent behavior, anger problems and child like behavior as well as partying and drinking came from at least one adult child of Tracie S.
[74] The fact that there were significant concerns from some of the people who were personally selected by the couple to provide information about them was a main concern to Ms. Liscombe. When this was added to the special needs of C-L and the fact that Tracie S. has difficulties with anxiety and depression and is caring for a terminally ill father, Ms. Liscombe decided she could not support the placement of C-L with Tracie S. and Rick B. as either a kinship foster care or placement adoption placement.
[75] During cross examination the witness mentioned or acknowledged several things including the following:
The kinship assessment was done on the premise of Tracie S. and Rick B. being the sole caregivers of C-L. There was no thought of there being a co-parenting arrangement between them and the Mother.
A concern about Tracie S.’s 12 year old son was investigated and not verified. As a result of the allegation, the visits between Tracie S. and C-L in the home were put on hold, and visits thereafter were at the agency offices. Ms. Liscombe said this decision was made by other workers.
The witness was asked how she could be certain she was speaking to Laura F. when Laura F. called regarding her interview as a reference. Ms. Liscombe said the material was sent to her home and Laura F. called the number she was given. There was no reason to be suspicious she said.
A great deal of time, during cross examination, was spent reviewing the positive comments in the responses from the referents. Lorraine C. described Tracie S. as honest, responsible, hardworking, compassionate, flexible etc, etc. She has been friends with her for over 30 years.
Tracie S.’s mother and middle son, the Father herein, had very good things to say about her. Likewise Rick B.’s son and sister had very positive things to say about him. The point was made that there were referent’s who had good and positive things to say about Tracie S. and Rick B. that were in direct contrast to things said by other referents. If one said Tracie S. was lazy another said she was hardworking, “happy, committed and mature” which was in direct contrast to “moody and depressed”.
Ms. Liscombe did not get the impression that Tracie S. was motivated by any financial reasons.
She acknowledged that the couple appear ready and able to take on the challenges of parenting.
She said she has done 30 home studies in her current position and of those 18 were approved, 8 were not approved and 4 were withdrawn.
There were no safety concerns in Tracie S. and Rick B’s home. The couple have a trailer in Port Dover and spend vacation time there in the summer. The neighborhood they live in is satisfactory to raise a child. There were no concerns about accommodations.
Concern was expressed by parent’s counsel about the lack of emphasis on the glowing report of Tracie S. by her family doctor of 29 years. Ms. Liscombe said this would have equal weight to many other factors. She did not call the doctor to ask about medication because Tracie S. gave her this information. There was no dispute about her being treated for anxiety and depression and being on long term disability. There was no medical evidence that either Tracie S. or Rick B. had any issues with alcohol abuse. Hair strand tests were not requested.
There were no concerns about Tracie S. or Rick B.’s care of her 12 year old son from his school
The counselling that Tracie and Rick B. were taking was pro-active and a positive thing. It was designed to help prepare them for marriage and to deal with the pending grief of the loss of her father.
Tracie S. is very capable at looking after her ill father.
Rick B. now earns about $120,000.00 and the couple own a trailer and house. Ms. Liscombe acknowledged this, but said that any financial concerns were raised on Tracie S. being on long term disability and previous concerns from a referent about gambling, and other previous financial problems.
Ms. Liscombe said that she never saw signs of Tracie S. being lazy despite this description from at least one referent.
Some referents raised concerns about the strength of Tracie S. and Rick B.’s relationship. Ms. Liscombe acknowledged that the fact that the couple were married prior to the trial shows a commitment. She added however, that she was mindful of the number of prior marriages or common law relationships each had.
Ms. Liscombe was asked if it was that important that she did not receive a criminal record check for Tracie S.’s father given that he is terminally ill and 65 years old. Ms. Liscombe commented that the regulations require this and she asked Tracie S. to help with this, but it did not happen.
The witness was asked about concerns regarding her older two sons coming around given that Tracie S. herself said she would not let them come or live there, if this is not allowed. Ms. Liscombe said it was acceptable if they came for visits. She had concerns however about the Father coming to stay after being released from jail (having been in and out of jail the last couple of years) because he would likely have nowhere else to go and he has done this before. Tracie S. herself apparently expressed concerns about the Father breaking into her home according to Ms. Liscombe.
The reference from Wanda H. was raised in cross examination. It was negative in many parts. Wanda H. (according to the questionnaire) described Tracie S. as someone who was not there for her own three children and who did not like to be tied down to the routine or structure that children need. She went on to say that C-L would be at risk of being neglected in Tracie S.’s care. She apparently described Tracie S.’s home as a “pig sty”. She also commented on Tracie S.’s poor money management and that she has a lifestyle of partying that is not conducive to parenting. Wanda H. went on to say that Tracie S.’s motivation to get C-L in her care is based on being vindictive to the birth Mother. Wanda H. commented that Tracie S. is deceptive and good at hiding things.
Ms. Liscombe pointed out that Wanda H. had Tracie S.’s son Richard in her care at one time. She is also a foster parent for the society. According to Ms. Liscombe, Wanda H. was not asked by Tracie S. in advance to be a reference and if she was asked, she would have declined. Ms. Liscombe said she was aware that Tracie S. and Wanda H. had a falling out prior to Tracie S. and Rick B.’s wedding. She has likely known Tracie S. for approximately eight years because Richard lived with her for a while in 2005.
Ms. Liscombe stated that Gordon and Laura F. asked if they could answer the questions in the form by telephone rather than complete it and mail it back. She said they were very upset when they learned that Tracie S. and Rick B. would receive the Safe Reference Form and that they feared retaliation by Tracie S.’s older two sons and they were also concerned about how the couple themselves would react.
The witness said that Gordon and Laura F. were not asked by Tracie S. or Rick B. to be a reference and would have politely declined if asked.
[76] Cross examination revealed a few weaknesses in the report. For example, Ms. Liscombe did not know what Laura F. meant when she said “Tracie is her own worst enemy”. She did not know what Wanda H. meant when she described Tracie S. as “emotional”.
[77] She acknowledged that when a referent ticked off the box marked “Depression and/or Suicidal Tendencies” that this could be misleading as there were no signs of Tracie S. ever being suicidal.
[78] A referent pointed out that there was a bad odor of urine in the home, but Ms. Liscombe acknowledged this could be due to Tracie S.’s father having an accident.
[79] When asked if referent’s who were concerned about poor money management knew about Rick B.’s new position and the increased salary, Ms. Liscombe said she did not know.
[80] Other examples were given of possible different interpretations of things the referent’s said or concluded.
[81] In conclusion, Ms. Liscombe said that she followed up with the referents again in October 2012 because she wanted to see if their opinions had changed. She said that the presence of Tracie S’s father in the home was a factor, but not a defining factor.
[82] Likewise, she said she could not say what her conclusion would be if the references were more positive. The fact that Tracie S. had two grown children who had such difficulties was a factor and she said she would have increased concern when C-L reached the same age as the older two when they got into trouble. All of the concerns set out in her report were factors which led Ms. Liscombe to her position in not recommending the couple for kinship care.
[83] Karen Ward testified. She is the current Children’s Services Worker for the C.C.A.S. and has been since June 1st, 2012. Her evidence in chief was provided primarily by an affidavit sown on February 11th, 2013. Her evidence is summarized below:
She described C-L as a sweet likeable child who is extremely active and loves to move, explore and climb. She was also described as a child who does not communicate orally, but relies on facial expressions and has just started to use signing to communicate.
Ms. Ward outlined the various service providers that C-L has. There is a Development Consultant named Cathy Sommers. There is a Speech and Language Pathologist named Anne Marie McKin. There is an Occupational Therapist named Carole Button. In addition, the child has been diagnosed with asthma so there are appointments with the Asthma Clinic. Dr. Peddar saw the child. There is an Orthotist because C-L was fitted for orthotic footwear for both legs from the knees down. In addition, there is the child’s family doctor and pediatrician.
Ms. Ward mentioned the time that Tracie S. and Rick B. came to an appointment with two of the therapists. She had no concerns about their attendance there and she said they were receptive to what was said and understood that the child has some special needs.
Ms. Ward stated that the Mother is attentive at visits and always on time. However, she said she once saw the Mother distracted during an appointment and “staring off into space”. She was seen texting during an appointment also. When asked if she converses with Ms. Ward in the car on the way to appointments, some of which are in Oakville, Ms. Ward said that they usually converse, but sometimes the Mother is busy texting. The witness also mentioned seeing the Mother demonstrate some appropriate parenting skills during appointments however.
She mentioned a time when C-L hit her head on the floor during an access visit. The Mother said she crawled off the matted area and went to reach for a toy and went over backwards and hit her head on the floor. The Mother said she was beside her, but unable to stop or cushion the fall. When Ms. Ward asked her what she could do in the future to ensure something like this did not happen again, the Mother was described as unable to provide her with an answer. Ms. Ward then gave some suggestions.
The Mother was provided with written suggestions a couple of time from the Occupational Therapist for exercises she could do with C-L to help her with co-ordination, balance, crawling, standing, etc.
The child was fitted with splints (also known as braces) on her legs in February 2013. This was to help her have more strength in her legs because she had low muscle strength in her legs and it was hoped that this would help her to learn to walk. The witness testified that she saw the child in the foster home, subsequent to the date her affidavit was sworn, and that she was walking with the splints on. C-L was described as being very unsteady but walking. She still crawls as well.
In January 2013 C-L’s services were transferred from Infant and Child Development Services to Erinoak Kids for ongoing therapy services. Appointments that used to be in the foster home will now be in the offices of the professionals. A screening task test was recently given to C-L. It was designed for her age group and C-L could do 9 out of the 17 tasks.
This witness commented in her affidavit that a lack of communication can sometimes lead children to act out in their behavior through frustration when they cannot communicate their thoughts. She therefore felt that it was important that everyone involved with C-L use the same skills regarding signing and communication and physio therapy strategies.
In her oral evidence, she mentioned that C-L is at a stage where she has increased temper tantrums, pulls her hair out, bangs her head, etc. Her temper tantrums were described as increasing in intensity. When asked in cross examination if this behavior is typical of ‘the terrible two’s”, Ms. Ward said it is more than what one would usually see as “most two year olds don’t bang their heads on the floor and most don’t pull their hair out”.
Ms. Ward was asked if the child can hear as there was testimony about the adults being taught how to help the child sign. The witness said the child can hear but she is non verbal at this point. The signs help the child express herself. The documented instructions were provided which show signs for “hello, up, down, finish, drink and more”. These were provided from the Erinoak Centre for Treatment and Development through the Halton-Peel preschool Speech and Language program.
Ms. Ward emphasized the need for a caregiver to be at this child’s side pretty much all the time. She described her as being very labour intensive and that a caregiver needs to anticipate her actions.
She pointed out that C-L is non verbal, does not walk unsupported, has several professional people she sees, and has global delays as a result of a serious brain injury. She demonstrates skills that are well below her age level. She requires diligent stimulation, close supervision, attendance at numerous medical and professional appointments and follow through with recommendations made by professionals. Furthermore, Ms. Ward expressed the observation that the child needs a disciplined ongoing caregiver.
[84] Alice Kneebone testified. She is a Family Resource Worker with the visiting program of the C.C.A.S. Her evidence in chief was primarily provided by an affidavit sworn on March 4th, 2013.
[85] Ms. Kneebone supervised over forty visits between the Mother and C-L. They were all at the society offices, and were partially supervised. She pointed out the following:
The Mother was always punctual for her visits or early and she called in advance if she had to cancel.
The mother was seen to show affection to the child and was capable of performing basic tasks such as feeding, diapering and dressing the child.
Concerns were expressed about the Mother’s consistency in providing stimulation for the child or taking advantages of opportunities to teach. Sometimes the Mother was seen to encourage the child to sit up and crawl or help to stand. Other times the witness noticed that the Mother provided limited stimulation. For example, on September 11, 2012 she observed the Mother in the Early Years Centre several times and said that on each occasion the Mother sat alone and let child roam around. When the child moved to a different area, the Mother apparently went over, but just sat and watched. Ms. Kneebone said there was little interaction, although the Mother would go to the child, if she was upset.
On October 16th, 2012 the Mother was described as being on her cell phone and did not see C-L who was playing alone in the kitchen area. When Ms. Kneebone entered the room and the Mother saw her, the Mother then went over to the child and interacted with her.
Other examples were given by Ms. Kneebone of the Mother following the child during the visit, but not being engaged with her. Ms. Kneebone said she would remind the Mother to do the occupational therapy exercises’ with the child, because she frequently did not see her do any.
On another occasion the witness said the mother was busy sending text messages when she entered the room.
On February 12th, 2013, the witness reported that she asked the Mother what exercises she had done with C-L. The Mother replied that she had walked her around the room. When Ms. Kneebone reminded her that the physio sheet had more exercises on it than just walking around the room the Mother is quoted as having said “that’s all they are really worried about right now is the walking so that’s what I am focusing on”.
The witness said that on February 19th, 2013 during Circle Time, the Mother did not encourage the child to participate, but allowed her to wander around the room. The Mother was described as keeping a close eye on the child during this time, but did not engage her in play. The Mother allegedly told Ms. Kneebone that she did all the signs with C-L, but Ms. Kneebone did not observe her doing any.
When Ms. Kneebone asked the Mother on December 20th, 2011 how she felt about the Father seeing the child, she is quoted as saying that she would never stop the Father from visiting, but she was not sure if C-L would remember him.
Ms. Kneebone was present on September 15th, 2011 when the Mother went to put the child in her car seat the end of the visit. She leaned over to get the carrier straps. The child fell as she was not strapped in yet. She hit the floor and immediately began to cry and Ms. Kneebone said that the child was taken to the hospital and that the Mother was appropriate throughout the ordeal and answered all questions from hospital staff. She comforted the child the whole time.
The witness said that there have been four visits since March 4th, 2013 and they have gone well, with improvement having been seen. She says she has a good rapport with the Mother.
In cross examination she agreed that the child is excited to see the Mother and that Mother and child engage well together. When asked if she discussed her concerns about the Mother having less interaction with the child as the visits progressed, she said that she did on an ongoing basis. She said that sometimes she saw the child crawling around the centre and the Mother would be following her, but there was no engagement of the type that helps a child with her milestones. She said she saw some improvement over the last couple of months.
She said that sometimes there is a very positive interaction at a visit, but not the next time. Once, for example, she showed the Mother how to put toys to the side to teach the child to roll over and reach for them. She did it that time, but not the next.
Overall, Ms. Kneebone said the mother does structure her visits well, but when the child is not in nap time, snack time, or circle time, she is not engaging well with the child. The concern is the lack of stimulation and the missed opportunities.
[86] Counsel for the Mother suggested to the witness that her evidence was a complete surprise to her client. Ms. Kneebone responded by saying that she has discussed these concerns with the Mother on every occasion and that the fact that the Mother is surprised is a surprise to her.
[87] Counsel for the mother asked Ms. Kneebone if she believed the mother could work co-operatively with her or another worker in the future if this was part of the court’s decision and the witness said that she believed the mother would work co-operatively.
[88] Patrol Sergeant Brad Clark testified about an incident on November 12th, 2012. There had been a break in to a home in the east end of the City. A neighbor saw two men going in and out of a home and carrying things out and putting them into a car. She copied down the license plate. When police later found that vehicle outside of a Tim Horton’s shop, there were four people in the car. The four people were the Mother herein, her brother Russell, Russell’s wife Rebecca and the Mother’s partner at the time Coty F. Ultimately, the two men (Russell and Coty F.) were charged with theft and break and enter. The witness said that the Mother was co-operative and he had no evidence that she was involved in the crime.
[89] Police Officer Chad Whittemore testified. He was called in regards to a domestic incident on May 9th, 2011 at the home of the parent’s herein. The Father, who was the complainant, said the Mother was slamming the door while the baby was sleeping and fighting over a telephone. He said the Mother was slamming the door because she was upset over the fact that the baby was crying. The Mother apparently told the Officer that she wanted to use the telephone, but the Father would not let her because he was using it and he pushed here on the bed.
[90] The Officer said that no charges were laid because the Father said he was leaving and not continuing the relationship. He also said that neither parent mentioned any concern about the baby and he had no reason to believe the baby was in danger. He called the Catholic Children’s Aid Society as there was a child in the home.
[91] Given the brief time that he was in the home, the Officer could not come to any conclusion as to who was telling the truth.
[92] Evgeny Neiterman testified. He was the Children’s Service Worker for C-L from January 16th, 2012 until June 2012. During his testimony he covered the times that he was present for appointments regarding C-L. He recalled Dr. Singh telling everyone present, at the January 20th, 2012 appointment, that it was important that caregivers avoid any kind of head injury to C-L. He said the Mother held the child appropriately, showed affection to the child, and asked the doctor’s appropriate questions. He said he observed the Mother to reach over to get diapers for C-L without supporting her. He advised her that she needed to hold her because she could fall off the bed. The Mother followed the request a few seconds later he said.
[93] He and the Family Resources Worker, along with the Mother, met with C-L’s Occupational Therapist on February 14th, 2012. He said that the Mother was shown exercises she could do with C-L in order to strengthen her muscles, work on her balance, posture, etc. The Mother was able to successfully repeat the exercise and she was provided with two copies of the exercise instructions.
[94] The witness said that he was present at an appointment with C-L at the Asthma Clinic at McMaster Hospital on February 28th, 2012. He said the Mother was present and she was encouraged to quit smoking. It was then arranged that C-L’s aero chamber and blue puffer would accompany her to visit so the Mother could use them if needed.
[95] Mr. Neiterman said he received a call from the Father on February 29th, 2012 informing him that he was not avoiding visits, but that he was in custody at Peninsula Youth Centre in Fenwick, Ontario, with Youth and Adult charges, but expected to be released at the end of March 2012.
[96] On April 2nd, 2012 the witness saw the child and noted that she was not yet crawling (at about age 14 months) but looked as though she would be soon. On June 1st, 2012 he saw C-L and noted that she could now sit up by herself, and could stand if she had support. It was felt as though it would be a while before she could walk. She was 16 months old at the time. Thought was given to possibly having her wear a helmet when eventually walking.
[97] Mr. Neiterman noted that the Mother had good communication with the foster mother and that the Mother was good about advising the foster mother of what when on during visits in the communication book.
[98] Colleen Richardson has been the Family Services Worker on this file since January 28th, 2012 for the C.C.A.S. Her evidence in chief was provided by affidavit.
[99] A summary of her evidence is as follows:
She spoke to the Mother several times about counseling and school. The mother did meet with a transitional support worker from The Good Shepherd and she completed a Mom’s Group through the C.C.A.S. Ms. Richardson brought up the idea of her registering at St. Charles School in order to complete High School, but the Mother was resistant to the idea for quite a while. She said she gave the Mother a pamphlet from Catholic Family Services regarding counseling. The witness acknowledged that the Mother finally started taking classes at St. Charles School on February 4th, 2013.
The counselling she wanted the Mother to take part in would be in regard to relationship abuse, passivity, etc. She was concerned that the Mother only went to a walk in clinic a couple of times. During cross examination she acknowledged that the Mother did appear to gain some additional knowledge about domestic violence during this whole process. However, she also pointed out that while the Mother was expressing concerns about the Father, she did not always deal with concerns about Coty F.
Ms. Richardson said she met with the mother on January 25th, 2012 and she was defensive about a concern that she left C-L briefly on a hospital bed on January 20th, 2012 while she reached to get diapers. She denied it but acknowledged it was just a second. She allegedly complained about the changes in workers and said it was emotionally damaging to C-L to have to get used to a new worker. The child was 15 months old at the time. The Mother apparently complained about the Father having his visits reinstated when he was the one who hurt C-L by throwing her in the air and that this was the sole reason that C-L was apprehended.
The worker had to remind the Mother that another concern was the Mother’s lack of follow up in seeking medical help. Ms. Richardson was concerned that the Mother’s position regarding the Father seemed to change so much. On January 25th, 2012 she told this worker that the Father was solely responsible for what happened to the child. On February 6th, 2012 however, she sent a face book message to the Father that included the following:
“…please message me back it would mean everything to me I love you and I wanna be friends for c-l so when she does come home you u can call and come see her because when I get her home im hoping the 27th when we got court she comes back to me ccas are still keeping your visits there till the file is closed but you could still come here and visit her just don’t tell them because they wont let it happen message me back please and thank you”.
The concern was that the Mother was telling the Father that he could visit the child and they would not tell the C.C.A.S.
There were a couple of other messages included that showed that the Mother clearly wanted to have the Father involved in the child’s life.
A major concern of Ms. Richardson was the Mother’s denial of being involved with any other men, but she was pregnant when she said this at the end of April 2012. Ms. Richardson asked the mother if she had a new partner and she said that she had not had a boyfriend since the Father. On May 2nd, 2012 this witness learned from a source through another agency that the Mother had a boyfriend named Coty F. On May 7th, 2012 she asked the mother again if she had a boyfriend and the answer was no. Ms. Richardson thought she looked pregnant. On May 25th, 2012 she told the Mother she appeared to be pregnant, but the mother denied this was possible. In late May 2012, the Mother had a pregnancy test and learned a few days later that she was four months pregnant.
When Ms. Richardson discussed this with the Mother she expressed surprise about the pregnancy even though she had been having unprotected sex with Coty F. for quite some time. She also had no answer when asked why she lied about not having any partners since the Father.
In cross examination the worker was asked if the Mother misunderstood when she was asked about having a new partner or a new boyfriend, but the worker did not think so.
Once Coty F. was known as the Mother’s boyfriend and father of her expected second child he became involved with the process. He met with Ms. Richardson and he became part of the Mother’s plan.
The worker said that at this point the plan was that Coty F. and the Mother would reside together when the new baby was born and parent both children together. Ms. Richardson said that Coty F. would not sign a consent for a criminal record check, but he acknowledged having charges under the Youthful Offender Act; being possession of a deadly weapon, dangerous driving and mischief. He apparently said he was currently on probation for five years.
The second child (B.B.) was born on October 2nd, 2012 and was apprehended given the concerns regarding C-L.
In early September 2012 the worker met with the Mother and Coty F. There was confusion expressed as to whether or not Coty F. lived with her. The Mother was by this time living with her brother Russell. The Mother allegedly said he was actually living with his mother and only stayed over once in a while, but Coty F. was quoted as saying he lived there. I did not receive independent evidence from Coty F. himself, but the witness was expressing concern that the Mother was not being honest with her. During this interview Coty F. allegedly advised that he was arrested for something on August 21st, 2012.
The maternal grandmother told Ms. Richardson on September 14th, 2012 that Coty F. and her son Russell, were identified by the Police for stealing significant property on Labour Day weekend. By November 12th, 2012 Coty F. was incarcerated for a robbery. On November 20th, 2012 the Mother told Ms. Richardson that she still speaks to Coty F. because they planned to remain friends and to both be involved with their child. On November 30th, 2012 the Mother re-confirmed that she was no longer in a relationship with Coty F. and planned to parent the children on her own.
Shortly thereafter the Mother found a place to live with her brother Cory, who has joint custody of three of his children and an open Children’s Aid Society file.
The charges against Coty F. were significant and Ms. Richardson learned from the Mother that the Crown was seeking three years penitentiary time.
On July 19th, 2012 the Mother came to pick up C-L and declined to have her visit at her home because her house was “very messy” and she was “starting to pack”, although she had not found another apartment yet. After this date the visits remained at the C.C.A.S.
Ms. Richardson had numerous positive things to say about the Mother’s visits. For example, she applies new skills when learned, in the majority of times. She accepted feedback and direction for the most part. She attends all visits and has attended many medical appointments. She had the help of a Family Service Worker in her home, but this stopped in July 2012 when the mother declined the home visits due to packing, etc.
One specific concern noted by Ms. Richardson about the visits however was on October 16th, 2012 when the Mother was observed texting for twenty five minutes and the Mother totally ignored the child during this time, even when the child crawled to a door, sat in front of it and tried to pull herself up.
Ms. Richardson said the Mother had a dazed look on her face. When asked in cross examination if the Mother could have been texting Dr. Ashbourne during this time and been able to see the child, Ms. Richardson said she would not have been able to see her, and she should have made other arrangements with Dr. Ashbourne.
The worker stated that the Mother was allowed to take the child outside for part of her visit, but this was stopped when they heard from the maternal grandmother that the Mother allegedly took the child to Russell’s home, which was not allowed. She was only supposed to be taking her for a walk in her stroller in the community unsupervised.
Ms. Richardson outlined her involvement with the Father. He attended some visits but he had to cancel in February 2012 because he was taken into custody over some Young Offenders Act (Y.O.A.) charges of two years before. He allegedly told Ms. Richardson on March 23rd, 2012 that he was not speaking to his mother (Tracie S.) at the time and did not want anything to do with her. On April 3rd, 2012 he apparently left a voice mail for Ms. Richardson saying that he was out of jail and was trying to patch things up with his mother. DNA testing was done and paternity was confirmed. By September 25th, 2012, Ms. Richardson was advised that the Father was in jail again and it was believed to be on an adult charge. On January 3rd, 2013 the paternal grandmother informed the worker that the Father had been released from jail. Ms. Richardson asked her to advise the Father that if he wanted to set up access again he would have to bring a motion because too much time had passed since his last visit (about 11 months).
The worker said that she told the Mother that Tracie S.’s visits would be in her home. She said the Mother appeared upset because she said the Father told her that Tracie S. and Rick B. threw him around and he had bruises from Rick B.
On March 28th, 2012 Ms. Richardson met the Father at the Detention Centre and he told her that his mother would be a great caregiver for C-L and he described her as dedicated, hardworking, strong etc. He said that allegations that she abused him and his younger brother were false.
Ms. Richardson said that on June 12th, 2012 while the parties were at court Tracie S. advised that she wanted to be assessed as a kinship care provider and did not wish to be involved in the Parenting Capacity Assessment.
A letter had been sent to her from the society dated June 7th, 2012 in which they proposed that she be included in the Parenting Capacity Assessment.
The visits between Tracie S. and C-L were described as having gone well. They were in her home for a few months, but were switched over to the C.C.A.S. after they investigated a concern regarding Tracie S’s. youngest child. The concerns were not verified. In fact they were suspended for a short while. Once the visits returned, Ms. Richardson said that Tracie S. had to cancel some. She had a father who was hospitalized and was busy planning her wedding. Ms. Richardson said that Tracie S. said she was “crazy busy” with wedding related appointments. When asked if she wanted to cancel her visits she allegedly said on March 5th, 2013 that she would think about it and call back.
Ms. Richardson said that they received the Parenting Capacity Assessment report on March 1st, 2013. The C.C.A.S. did not believe they could follow the recommendations for the following reasons:
C-L had been in foster care for twenty months and was just over two years old. The recommendations would have her in care for at least another six months.
The child had serious injuries while in the Mother’s care.
The Mother and Father are both on the child abuse register as a result of the injuries.
The child is vulnerable due to the injuries and requires special care.
The Mother has some cognitive limitations and is struggling to establish a stable and safe lifestyle.
The Mother has not demonstrated good judgment in her choice of partners or been forthcoming with Ms. Richardson.
Significant concerns were raised by Dr. Ashbourne.
The Society does not support Tracie S.’s plan for reasons explained by Ms. Liscombe.
The Father did not have a plan to parent himself and he has rarely visited the child having spent much of the time that the child was in foster care, in jail.
As a result of the above the C.C.A.S. proposed an order for Crown Wardship without access.
In cross examination Ms. Richardson agreed that she had no known concerns about the Mother’s brother Cory, with whom the Mother resides, and she had not been to see the house they lived in, which was described as having five bedrooms.
She acknowledged that the Mother arrives early for visits and is learning skills as mentioned above. She agreed that the birthday party for C-L in the Mother’s home in January 2013 went well. Arrangements were made for this to be held at the home that the Mother resided in with Cory prior to getting their current home. She said the party went well and all the children present had fun.
She also acknowledged that the visits with Tracie S. were all positive. She said that once the concerns of Tracie S.’s youngest child were not verified, they did consider putting the visits back in her home, but they were concerned that the Father was coming in and out of the home.
[100] Cindy Ridos testified. She is a Family Resource Worker for the C.C.A.S. Her duties include observing and documenting interactions between parents and children during visits. She also offers direction when needed or requested, and she teaches parenting skills.
[101] The evidence in chief of Ms. Ridos was provided by an affidavit that was sworn on February 22nd, 2013. Her evidence is summarized as follows:
She began supervising the visits between the Mother and C-L in July 2011. Initially the visits were at the society offices and were fully supervised. By September 2011 they were increased and switched to partial supervision. In January 2012, the Mother was allowed to take the child to her home during visits. In June 2012 the visits were returned to the society offices.
The Mother was nearly always on time for her visits and attended regularly.
The Mother had basic parenting skills such as feeding the child, changing her and reading cries. In addition, she showed affection and patience with the child.
The Mother was generally open to feedback during visits and stimulated the child with toys and books.
Concerns were expressed about the Mother’s consistency in doing the strengthening exercises that C-L needed for her development. There were times she observed the Mother to do the occupational therapy exercises with the child and times when she did not do any. On September 20th, 2012 she asked the Mother to show her the occupational therapy exercises she learned, but she could only remember one. She said the therapist said that either exercise was fine. The witness said she sometimes seemed to be content to just watch the child.
On October 11th, 2012 the Mother was heard to tell the child she was lazy when she asked her to stand up and she would not. A week later the witness heard the Mother tell C-L she was so “lazy, lazy, lazy” when C-L sat down instead of walking with the Mother. She acknowledged that this was not in a scolding tone, but felt the words were inappropriate nevertheless.
They were concerns expressed about the Mother not signing with the child although encouraged to by the witness.
Concerns were also expressed about the lack of honesty about her relationship with Coty F. Ms. Ridos told her on May 3rd, 2012 that there was a rumor going around that she was pregnant. The Mother reportedly told her that she was not pregnant and that she would be “straight up” with the Society about this. On May 24th, 2012, Ms. Ridos commented on the size of the Mother’s stomach and asked if she was pregnant. The mother denied this and said she took daily birth control, but did not have a boyfriend in any event and had not had sex. She said her priority was getting C-L back. The worker encouraged her to see a doctor and on June 7th, 20112 she advised Ms. Ridos she was pregnant. She subsequently said she planned to parent with the father of her second child Coty F., and that he is a nice guy.
Evidence was given by the witness about the Mother’s efforts to find new accommodation. On July 19th, 2012 she told her that her apartment was very messy as she was starting to pack in anticipation of moving, as she wanted the visit to be at the Early Years Centre instead of her home. In the next few weeks the Mother had other reasons for why she preferred to have the visits at the Early Years Center. She was still living with her brother Cory as of January 2013.
There were concerns expressed about the Mother being on her cell phone at an inappropriate time. She said during cross examination that out of about 80-90 visits, the Mother was on her cell phone when she should have been focusing on the child about 15-20 times. The calls were a maximum of five minutes and were calls that were made and received.
The witness testified that since her affidavit was sworn, C-L has learned to walk independently.
During cross examination the witness said that the child is happy to see the Mother and that the Mother has administered the puffers to the child.
The witness was asked about the signing for communication with C-L, and she said she only saw the Mother do one sign, but she was given a sheet of paper with all the examples on it.
Ms. Ridos saw Tracie S. at one visit which went well, but this was just an hour long visit.
She supervised two visits early on wherein the Father attended and she did not note any concerns.
The witness commented that the Mother handles the child properly and in a safe manner when she is walking and that she does not use the cell phone as much.
When asked what concern she has that has continued, Ms. Ridos said, it was that the Mother was not consistent with helping the child meet her milestones. She pointed out that this is a special needs child and consistency is very important. At 26 months of age the child had a very low speech functioning.
[102] Dr. Dan Ashbourne testified and he was declared to be an expert witness. He was the author of the Parenting Capacity Assessment dated February 28th, 2013. Dr. Ashbourne is a Clinical Psychologist at The Centre for Children and Families in the Justice System, which is part of the London Family Court Clinic.
[103] In his report, Dr. Ashbourne appears to have a given a thorough review of the issues and areas of concern. He was aware of the brain damage C-L suffered and of the society’s various concerns.
[104] He completed testing of the Mother over the course of four sessions. He found her to be pleasant, passive and wanting to please. He also described her as diligent and focused and said she will ask for help and that she often declined breaks that were offered.
[105] In the test for intelligence Dr. Ashbourne found there to be a significance discrepancy between her verbal and non verbal abilities. Her overall cognitive abilities and her verbal composite score placed her at the 1st percentile in the extremely low range of intelligence. However, her perceptual reasoning placed her at the 5th percentile in the borderline range of intelligence. The Assessor concluded from these tests that the Mother would benefit from a more hands on style of teaching new skills.
[106] The Mother’s psychological profile was assessed. The test is used to evaluate an individual’s mental health, perspective of the world, general coping strategies, self concept and interpersonal skills. A lot of the test is based on self reporting, but Dr. Ashbourne felt that the Mother’s answers were not such that the test would be invalid or distorted. He noted the following about the mother:
Ms. C. may strongly desire to appear in a good light and hesitate to admit to common social shortcomings which might relate to a fear of public humiliation. Given her passive nature, she likely rigidly complies with social convention and the wishes of those in leadership positions, to seek their approval. She may prefer to be a considerate and co-operative person who forms polite, formal, and dutiful personal relationships. She appears to underplay her attributes and her abilities, as asserting herself may threaten the security and approval she seeks. Unless given clear guidance as to what is and is not correct or proper, she may become anxious, easily upset, indecisive and immobilized. She likely dislikes showing any weaknesses by making mistakes or taking risks, in case they provoke disapproval and punishment from others which causes great distress for her. She also likely constructs the world in terms of rules, regulations, time schedules and social hierarchies, which results in her becoming highly anxious by unfamiliar events, customs, or changes to her routine.
She appears to fit the following Personality Pattern: Obsessive Compulsive Personality Traits (e.g., she may over-conform and place high demands on herself), Narcissistic Personality Features (e.g., she may be self-involved), and Schizoid Personality Features (e.g., she may socially isolate herself and have minimal attachments). Emotional challenges experienced may be further complicated by family problems, and employment problems. It is likely that Ms. C. lacks insight into both herself and others.
[107] Dr. Ashbourne also noted the following of the Mother on the type of the psychological profile and one of the tests:
Ms. C.’s profile on the STAXI-2 reflected scores that she generally experiences, expresses, or suppresses little anger. However, this response pattern suggests that she may use the defenses or coping mechanisms of denial and repression excessively to protect herself from experiencing angry feelings which she believes are unacceptable. This denial and repression may reflect a lifestyle in which these defenses are consistently used as a primary means for coping with and avoiding anger. Additionally, she had two elevations on the outward and inward control of anger scales which suggest that when she gets angry she likely spends a great deal of energy in monitoring and preventing her outward expressions of anger, and in decreasing her angry feelings quickly. Although the ability to control the outward and internal experience and expression of anger may be helpful in many different contexts, over-control could result in passivity, depression, and withdrawal; and could also reduce her awareness of the need to respond assertively to resolve a frustrating situation.
[108] On the test regarding substance use and life stress, the assessor concluded that there was a low probability that the Mother has a substance dependence disorder. He also said that her profile on the trauma symptom inventory did not reflect valid results.
[109] Tests were done to assess the Mother’s adaptive functioning. This test is intended to evaluate the parent’s level of adaptive functioning, being the daily activities required for personal and social sufficiency. In order to complete this test, the Mother and her brother Cory were asked to complete a test with questions about the Mother’s skills.
[110] Tests were done regarding parenting beliefs and knowledge. Dr. Ashbourne felt that the Mother’s responses reflected a higher risk that she likely has inappropriate expectation of the children, low levels of empathy, and reverse family roles.
[111] He wrote that her results on one test suggested she could pose a severe risk for physical child abuse. On another test, he noted that the Mother had ratings that showed she was very satisfied with her own parenting ability and that of Coty F. (father of B.B.). Her rating on the parenting satisfaction scale reflected the highest or nearly the highest score possible and suggested some degree of positive impression management.
[112] On the family relationship testing, the Mother is reported to have said that there were no incidents of physical, psychological, emotional, sexual, or financial abuse between her and her partner Coty F.
[113] In his report, Dr. Ashbourne outlined the personal and community collaterals interviews that were conducted.
[114] Dr. Ashbourne noted that initially the Mother wanted Coty F. to be given a chance to parent B.B. However, her parenting plans did not include Coty F. by the time the assessment was completed because he was arrested. Earlier on in the assessment process she and Coty F. were living with her brother Russell and his wife. They planned to raise C-L and B.B. together. By the time the assessment was completed she was living with her brother Cory H.
[115] Dr. Ashbourne reported that the Mother was adamant that she did not do anything to cause C-L’s injuries. She believed they were caused by the Father’s rough play. This was in reference to the Father’s alleged act of tossing the child up in the air.
[116] The assessor commented on his report on the four observation visits he was present for. During the first visit on December 5th, 2012 he noticed affection between the Mother and children and some good basic parenting skills, but he expressed some concerns about periods of silence. By the fourth visit, which was on February 26th, 2013, he noticed much progress regarding the periods of silence. He reported that the Mother was busy with both children for a five hour visit and that she vocalized extensively with the two girls, demonstrated affection with both of them, and engaged in several basic parenting tasks.
[117] In his summary and conclusions, Dr. Ashbourne noted that C-L is a two year old special needs child with delays in several developmental areas including speech language, mobility, walking, and delayed play and learning skills. She is a very active child and requires close supervision. He wrote, “She will be a challenge to parent for even the most skilled of parents and will benefit from having two skilled caregivers who can be flexible and accommodating to her unique needs”.
[118] On the other hand, he noted that B.B. is developing on course and will likely be an easier child to care for as she matures.
[119] He pointed out that the Mother:
Showed a low probability for substance dependence disorder.
Showed no signs of behavior anger problems.
Appeared to reflect positive impression management efforts.
Appeared to want to present well to seek approval when she described her relationship with Coty F. as very positive when he described it as one with mutual emotional and psychological abuse, and then was arrested and put in jail.
Has some rigid and unrealistic expectations of herself and children including a lack of knowledge of children’s development.
Has a strong desire to meet her children’s needs.
She has a responsive relationship with the children and clearly loves them.
[120] Dr. Ashbourne gave some suggestions of things that would help the mother such as therapeutic services to help with her self-esteem and sense of parental competence and some continued hands on parent modeling.
[121] Eights questions were to be addressed in the assessment as follows:
What is Ms. C’s ability to recognize and meet the emotional, physical, psychological, educational and intellectual needs of the child, including the child’s special needs, on a long term basis?
Is. Ms. C. able to recognize risk to the child and protect the child from those risks?
Are there any limitations to Ms. C.’s mental health or cognitive development that would affect her ability to parent? If so, how and to what extent?
Are there any attachment issues for Ms. C. that would impact her ability to parent C-L?
Are Ms. C.’s trauma issues sufficiently resolved so that they do not impact on her parenting ability?
If there are any identifiable concerns respecting Ms. C.’s parenting ability, can they be resolved in a timely manner to meet the child’s need for permanency?
If C-L were to be returned to Ms. C.’s care, what would be the best teaching strategies to employ to enhance Ms. C.’s learning, and what services would be recommended to assist her?
Do you have any comments, based on your assessment, if Ms. C. were to have another baby?
[122] In addressing these questions, Dr. Ashbourne concluded that:
“C-L. will be a challenging child to parent for even the most skilled of parents who have a team approach to support each other and offer occasional respite. This is not the current situation for Ms. C.”
The Mother did appear to have basic safety knowledge and understand that C-L. is younger than her chronological age. He added “past history suggests however, that risk from others may be something that she has more difficulty recognizing or asserting herself to address this risk. This passivity may have played a role in her first child’s injuries.”
Serious mental health or significant cognitive limitations were not evident. The Mother can learn given the right context and supports.
There were no problems or issues with attachment with this family.
There are trauma issues for the Mother connected to her difficult history. Therapeutic work is needed. It was suggested by the assessor that she work on her assertiveness training, learn about healthier relationships and enhanced parenting support in the home, and then move into trauma counselling.
The Mother’s parenting abilities could benefit from “in home hands” on support and instruction from a gentle parent support worker. The assessor suggested this should happen by working with the easygoing child B.B. first and then once the Mother has managed with B.B., C-L could be introduced.
Hands-on learning in the home was suggested through an In Home Parent Support Worker Program.
A third child would likely overwhelm this parent.
[123] In view of all of the above, Dr. Ashbourne made 12 recommendations which are as follows:
RECOMMENDATIONS
As soon as her medical and treatment needs are well in order, C-L could benefit from attendance in a licensed day care setting, at least on a part time basis to enhance her development.
Carefully monitoring of her development is encouraged for C-L in all areas; medical, emotional, developmental, educational, speech and language, etc. to ensure she is receiving the support services to aid her development on a timely basis.
B.B. does not show the same developmental challenges at this time but should also be regularly monitored by a physician and referred on to specialized services should the need arise.
Ms. C. could benefit from help with understanding and developing healthier adult intimate relationships in order to protect herself and her children. Enhancing her assertiveness and addressing her passive nature is also suggested. Referral to Catholic Family Services is suggested to work on her own challenges while she works to also improve her parenting skills.
With regards to parenting challenges, it is clear that Ms. C. loves her children and wants to do well for them. However, some rigidity is noted and limited developmental knowledge that must be addressed in hands-on parent education support that is likely best offered by in-home parent support services.
Once stable housing and a detailed parenting plan is developed for this young mother, B.B. could be gradually integrated into her mother’s care with parenting time expanded as things go well into eventually full time care by the mother.
Clearly factors that would disrupt this plan and result in B.B’s return to foster care and a quick move towards permanency planning for the child would be: alcohol or drug abuse by the mother or other adults in the residence, engagement in criminal activity by the mother or other adults involved with the child or mother; breakdown in housing such as eviction/homelessness, increased emotional problems for this mother or those around the child, exposure to violence for the mother and/or child, non-accidental injury to the child, or the child’s development being compromised.
With six months of stable full time care evident wherein B.B’s needs are being met adequately by this mother, while she maintains her access to C-L; the Society could then look at moving C-L’s access to her mother and sister to being fully unsupervised from the current partial supervision that is now in place.
With continued positive progress by the mother and two children evident, the Society could then begin the gradual reintegration of C-L into her mother’s care too.
The assessor is less optimistic that this end result will be achieved and thus concurrent permanency planning should continue for C-L in order to find her a long-term stable, loving and nurturing home with parent figures who are skilled and who can orchestrate a good team approach to meeting the needs of this special child.
Should Ms. C. become seriously involved with a new adult relationship and find herself pregnant prior to achieving success with the return of her children, the matter may need to be re-examined and alternative plans developed for C-L and possibly also B.B.
Finally, this assessment should not be used to make decisions regarding future children that Ms. C. may have as circumstances may change over time and thus re-evaluation is recommended at that point.
[124] All of the above information was contained in Dr. Ashbourne’s report. He was also cross examined by all counsel. Many of the questions related to clarification or explanations regarding the content of the report. I will highlight some of the testimony. The following was stated by this witness:
He explained that the finding that the Mother placed on the 1st percentile for cognitive ability and verbal composite score meant that 99% of all people do better. Likewise, the finding that she scored at a 5% level for perceptual reasoning meant that 95% of all people do better. She was considered in the extremely low range of intelligence on one test and borderline range of intelligence on the other. He felt that the discrepancy in these tests showed a style that she could benefit from, being a hands-on style of teaching new skills.
The Mother wanted there to be a Father figure for the children and initially this was going to be Coty F.
The Mother is a passive type of person. The opposite would be an assertive person who can pursue something they feel is important and stand up for themselves. The passive person would be less willing to be judged, etc.
The mother recognizes her passive nature. Being passive does not mean she cannot raise children, he said. She would deal with issues surrounding her passive personality in therapy he added.
A common theme through her tests were denials and positive impression management. It is not uncommon in these types of assessment for parents to try and make themselves look good however.
Dr. Ashbourne was aware of inconsistent statements to the police and the fact that the injuries could have happened while the Father was in jail.
The witness said he was aware that there are differences of opinion on the topic of shaken baby syndrome in regard to the force required and the angle. He was not aware of the degree of force Dr. Singh and Dr. Baird felt were involved however. He said he did not feel that the Father was necessarily the one who caused the injury because his focus in the assessment was on parenting. He realized that it could possibly have been the Mother who caused the injuries but he wanted to focus on what she would do differently. He also noted that the Mother is older now and has attended all the appointments. She cooperated with the assessment. She appeared to be engaged in the process and as of his last involvement she was looking for better housing and an education program.
The testing indicated there was a risk for child abuse by the Mother. Dr. Ashbourne said he wished that part of the test was called something else. He indicated that if he thought she had a propensity for child abuse, he would not recommend that either child be returned. He saw a nurturing tendency from the Mother despite the results of the tests.
He commented on the number of people involved with the Mother as supports. His second observed visit was a birthday party for C-L at the Mother’s residence on January 30th, 2013. There were nine adults and eight children present, plus some C.C.A.S. staff. The visit basically went well. The assessor noted however that, in general, there is a collection of “not so healthy individuals floating around in this family that make it hard for her to stand up to them.”
A family friend named, Charlie, was present for the third observed visit. Dr. Ashbourne had not invited him and had wanted to see the Mother alone with the children during that visit.
The witness said he found it to be conflicting evidence in regard to who all was living in C-L’s home during her first five months of life. He believes that the Mother’s answer to the question “where was the Father living during this time: was inconsistent because the Father was probably “floating back and forth” during this time, and her answer could also be due to stress and anxiety.
Dr. Ashbourne stated that he believed the mother’s plan to live with her brother, Cory, was acceptable and that he was supportive of this plan. However, if there is a custody dispute between Cory and the mother of his children as anticipated, and their younger brother, Tyler is there, it could add to the chaos. The more people there are in the home, the division of responsibilities can become problematic.
He was asked about the Mother’s message to the Father on Facebook on February 6th, 2012 that she “still loves him and is prepared to give him access as long as the C.C.A.S. does not know.” He said this does cause concern because she obviously still loved the Father at this time, and does not assert herself, and will have to work with the C.C.A.S. if the child is returned to her.
The witness was asked about his concern of the Mother’s ability to protect. He replied that there were core elements which were: the need for more parenting guidance, the need for more hands-on guidance, and the need to deal with the fact that the Mother has been affected by the difficult life she has had and lack of ideal role models. As a result, his concern about her ability to protect was elevated. He emphasized the need for therapy, parenting help, and the need for her to not be overwhelmed. He said he is less optimistic for the results and that concurrent permanence planning needs to take place.
The motivation of the client can determine how long the client needs for the reintegration. He felt that 6 months was needed to see how she was doing with therapy and planning. Therapy needs to be followed up. If criminal activity is involved in the residence, this can be problematic. There needs to be less chaos in the home than there was before. We would need 6 months of stability with B.B. before access to C-L becomes unsupervised. We would go from partially supervised to unsupervised access.
When asked if he was recommending a minimum of a 6 month period before access to C-L became unsupervised, Dr. Ashbourne said “Yes – in many ways it is a continued assessment.”
When asked if his recommendation for a more “hands-on style of parenting” could be met with a Parent Support Worker being sent to the home, Dr. Ashbourne said he would recommend that.
Dr. Ashbourne was asked if the entire process of placing C-L with her mother could take a year. This would be due to the fact that he recommends expanding B.B.’s access first, then seeing therapy in place, then seeing B.B. in the home for about 6 months, and then increasing C-L’s access. He said that yes, it could take a year.
When asked if he was doubtful it would work, he said that he was doubtful. He added that he was more optimistic that his recommendations would work for B.B. than for C-L. He thinks that it will be only a short time before B.B. passes C-L due to C-L’s delays. The child B.B. focuses easier than C-L and C.-L has a short attention span.
When asked if he keeps the statutory timelines in mind when making recommendations, he pointed out that the process may have moved more quickly without the second pregnancy.
Dr. Ashbourne said he did not see the Mother ready to immediately parent the child C-L in the same way that he saw B.B. The child C-L, he said, requires very patient parenting, very skilled parents, very flexible parents and parents who can be very strong advocates with schools and other professional institutions. He said that a number of these qualities are not present with Ms. C. She could learn these qualities however with continued hands-on parent modeling and with having the child B.B. returned first.
When asked if the estimated one year period could be shortened, Dr. Ashbourne said that it could, but that his concern is that it would not allow the plan to be implemented. If we rush, the plan could be derailed he said. He pointed out that his recommendations include a course of action and he does not want that part forgotten.
[125] It is important to note that this assessment did not consider Tracie S. and that she was not part of the assessment. When asked if a co-operative plan between the Mother, Tracie S. and Rick B. would be a positive thing, Dr. Ashbourne said that it could be a good thing.
[126] He added that the family would need to follow perimeters and that it can be a challenge for a grandmother to care for a child who may have been injured by her child. It can be hard for families to follow boundaries, he added.
[127] When asked by the Mother’s counsel if Crown wardship with access was a possible outcome, he said it was possible and that it was also possible to have something phased in whereby the child was initially placed with the paternal grandmother.
[128] Mary C. (the Maternal Grandmother) was one of the Mother’s witnesses. She is the maternal grandmother of C-L. Mary had eleven children of her own and has had child protection involvement for some of her own children. She anticipates having four of her children returned to her in shortly.
[129] She was asked about comments that were attributed to her by C.C.A.S. employees and for the most part, she denied it all. She denied the following:
Calling Ms. Grigaitis and telling her that the mother got her 13 year old brother drunk.
Telling Ms. Richardson several things including that the Mother used the baby swing as a babysitter.
Telling Ms. Richardson that the Mother would not listen to her when she warned her to get away from her brother, Russell and his wife because they were bad influences. She said she did not say this because the Mother always listens to her.
Telling Ezra Branderhorst that the Mother blamed her for telling the C.C.A.S. about a crime for which Coty F. was arrested, but it was really the Haldimand Norfolk C.C.A.S. In fact, she denied meeting Mr. Branderhorst. The C.C.A.S. stated that she went to the C.C.A.S. in October 2012 and tried to see Ms. Richardson, but she was busy so she was sent to see Mr. Branderhorst instead. She said she did not go there, did not ask to see Ms. Richardson, and did not meet Mr. Branderhorst.
Telling Mr. Branderhorst that Coty F. told Kyle to beat Tyler while he is in school.
[130] There were several other questions put to this witness about things she allegedly told C.C.A.S. workers but she denied most of them. She did acknowledge talking to Ms. Grigaitis about her view that the mother chooses bad boyfriends.
[131] The witness described the events of the weekend that the child was taken to the hospital. She said they all went to King’s Buffet for her birthday on June 26th and C-L was fine and happy all weekend. She recalls that C-L did not start throwing up until Monday. When she heard from the Mother regarding her concerns about C-L, she said she told them to get in a cab and come to Copps Coliseum (where she was attending a concert) and she would meet them at the front door to give them money for the cab to McMaster Hospital.
[132] The witness said she twice observed the Father toss the child in the air and she demonstrated how he did this. She said the child’s head was not supported. She said that the first time she screamed at the Father and told him he could cause shaken baby syndrome by doing that and the second time she also told him off and took the baby from him.
[133] The witness also described the two times the child fell out of a swing. She said that both times it was her 13 year old son who found C-L. After the second time, she said that the swing would have to go. Each time her son discovered the accident, it was because he came into the room and found C-L on the floor. The second time, it was 7:30 a.m. and C-L was on the floor, and crying, but on her blanket. The witness said the mother took her to the doctor’s to make sure she was not injured in the fall.
[134] The witness said that she told the mother to be straightforward with the police when they were investigating the injuries to C-L but she recalled the Father telling the Mother not to tell them everything. She believed he was referring to either his act of tossing the baby in the air or the two times the baby fell out of her swing.
[135] This witness was interviewed by the police and the video recording of the interview as played during the trial. She described the incidents regarding the tossing and the swing and answered a variety of questions.
[136] It was Mary’s observation that the Father did not help with the child or perform basic child care for her but she did express the view that the Mother is a great mom and that she does not lose her temper.
[137] When asked during the police interview about the Mother kicking the Father out, but apparently allowing him back in again, Mary said “she loves him – she loves him to death.” That interview as June 29th, 2011.
[138] Ezra Branderhorst testified. He is employed by the C.C.A.S. He was asked about a conversation he had with Mary C. on October 15th, 2012. During this conversation, Mary C. was allegedly critical of some family members including the Mother. Mary C. was said to have wanted to speak to Ms. Richardson but she was not available so she spoke to Mr. Branderhorst instead. This witness said that Mary C. said the Mother was a great mother but she puts her boyfriends in front of her children and does not choose good boyfriends.
[139] She allegedly told this worker about one of her sons being afraid to go to school because another son was angry at him for “ratting him to the police.” She allegedly told the witness that the Mother was living with one of her sons (Russell) and his wife and that it was a bad situation because Russell and his wife used cocaine and sold drugs. She began by saying that the Mother was upset with her for telling Ms. Richardson about the fact that B.B.’s father was arrested but in fact that information came from the Haldimand Norfolk C.A.S.
[140] This witness was clearly called to dispute some of the evidence given by Mary C., who denied even meeting with him. Mr. Branderhorst said he kept notes on the meeting and also had independent recollection of the meeting.
[141] The Mother (C.C.) testified and the court also saw two videos of interviews she gave with the police during the investigation into C-L’s injury.
[142] The first police interview was Wednesday, June 29th, 2011. Detective Lowry from Hamilton Police Services conducted the interview and a social worker from the C.C.A.S., Wendy Guiden, was present.
[143] This interview took place two days after C-L was admitted to the hospital. The Mother was asked if she had any explanation for C-L’s injuries. She thought it could be because she fell out of a baby swing two or three times. She described the events of the times that it happened. The first time was around six weeks ago she said. She went to the store to get cigarettes and was only gone ten minutes. Her mother Mary C. was with the child, who was in the swing as she left. The witness says the child stretches in her swing, but there is a belt fastened on her. The Mother did not know what age group the swing was for, but she bought it at Walmart. She said her Mom said that C.C.’s two teenage brothers saw the child fall and they went to get the maternal grandmother. It was reported that the child did not land on her head and fell on a blanket. The Mother said the child seemed fine and was busy playing with her toys afterwards.
[144] The second time was similar. The maternal grandmother either saw the fall or saw the child on the ground and she woke the Mother up to tell her. They felt the child seemed fine afterwards.
[145] The mother was asked when she noticed that C-L had a big head and she said different people including the Public Health Nurse and the Family Doctor commented that she had a big head and did not seemed concerned.
[146] Detective Lowry asked the Mother if she told any hospital staff about the falls from the swing and she said, “No – I thought they would tell the C.C.A.S. and I would lose the baby”. She said she was getting really scared and her mother told her to tell the truth today.
[147] The Detective asked the Mother about the people who live in the maternal grandmother’s home with her and she described a large number of people. Her mother (Mary C.) had eleven children, and five boys still lived in the home. The Father was described as living with his mother (Tracie S.) but as being at the Mother’s home about 50% of the time. She described some other people who stopped by including Mary C.’s ex-boyfriend and current boyfriend. She described her relationship with the Father as good with the exception of an incident where police were called. She described him as having been supportive throughout this crisis with C-L.
[148] The mother was asked about the events surrounding the decision to take C-L to the hospital on June 27th, 2011. She described the child as throwing up like a waterfall more than once on the weekend. They were going to take her to the hospital on Sunday but the Mother and child fell asleep and so they went Monday evening. She said that she had a bath after one of her sessions of severe vomiting and was laughing and playing. The Mother said she knew they would have to go to the hospital by Monday. She said they went in a cab Monday night to Emergency.
[149] Detective Lowry asked her if she was aware of anyone who acted out in a frustrated manner with the child and she said “no”. She was asked if there were any other accidents to report and she said “no”.
[150] When asked why she changed her mind about taking the child to the Emergency Department on the Sunday night she said she was babysitting her five brothers and called a family friend to relieve her so her mother could drive her to the hospital but she fall asleep.
[151] When asked if she told the Public Health Nurse about the falls from the swing she said she did not because she was scared. She said she was afraid the child could be apprehended because she herself was in foster care.
[152] At the end of the fifty five minute interview the Mother was asked if she could think of anything else that could have caused the injury and she said “no”.
[153] The second police interview was conducted the next day, June 30th, 2011 with the same people present. The interview was in relation to the investigation of an aggravated assault.
[154] Detective Lowry began the interview by asking the Mother why she did not try her best the day before. The Mother cried and said “because I’m scared”. This question was in relation to the fact that the police were by now aware of the fact that the Father had been seen tossing C-L in the air and catching her (or some action like that).
[155] The Mother then stated the following:
She wanted the Father to have supervised access because A.S-A. was throwing C-L in the air and catching her.
She remembers being in the basement and hearing her mother yell, “Don’t do that” to the Father who was allegedly throwing her really high and catching her. She said she heard him respond, “Don’t tell me how to parent”. The Mother said this happened a couple of times. She demonstrated how he handled the baby when tossing her.
She said she sometimes leaves the Father in charge for a while during the night, so she can sleep.
When asked why she did not tell her this yesterday, the Mother said, “Because I have a lot going on”.
When asked why she told the Detective about the swing she said her Mom told her too.
The Officer pointed out that the Mother said the fall from the swing was described as occurring when the Mother went to buy cigarettes, but her mother said it happened twice and both times it was when the Mother was sleeping and her brothers said it happened three times.
There was a discussion about the mark on the child’s face and the possibility of it being the result of her brother’s BB gun.
The Mother said that she does not sleep in a bed with C-L, but when Detective Lowry told her that some family members says she does, she acknowledged that she has “a couple of times”.
The Mother said that the Father has babysat a few times and that he is always relieved when she returned because he does not handle the child’s crying well. He sometimes just puts her in her swing with the bottle left in her own care. She says she has had disagreements with the Father about how he handles C-L.
The Mother acknowledged that her family believes the Father is responsible for C-L’s injuries. At the end of this interview she was asked if there was anything else she wanted to add and she said, “I told you everything I know”.
Earlier in this interview the Mother was asked if she would be willing to take a lie detector test and she said she would. She was upset throughout this interview and appeared to be crying or nearly crying throughout most of the interview.
[156] The Mother testified during the trial. She provided information about her background plans for the future and her version of the key events that were of concern. A summary of her evidence is set out herein:
She was born on November 19th, 1991 and is currently 21 years of age. She resides in a rented home in Hamilton with her brother Cory and it has several bedrooms. At the present time there is just her and Cory on a full time basis, but there is a bedroom for her two daughters to share, should they be returned to her. There is also three children of Cory’s who are there half time (ages 3, 5 and 6) and a brother of the Mother and Cory, (Tyler) who is 15 years old and in foster care, but who comes and stays over night often.
She said she is not in a relationship with a man now and that she broke up with Coty F. when he was incarcerated. She said she last saw him two weeks before when she visited him in jail, but that she has told him a few times that their relationship is over.
She said she did have pre-natal care when she was expecting C-L and that she went to a Pregnancy Centre on James Street and was later referred to a Maternity Centre. She was offered the services of a Public Health Nurse at the Maternity Centre. Before C-L was born she had a family doctor, Dr. Greenspoon. The Mother added that the child’s immunization shots were up to date until she had to cancel an appointment because C-L was sick.
The Mother listed several sources of support in her life which included her mother, two aunts, two cousins, her brother Cory and some family friends. She described where some of them lived and worked and what families they have. Other than her mother, none of them were called as witnesses.
A summary of her residences over the last few years was given along with an explanation of why she moved. In nearly every residence described the Mother was living with family members. In February 2011 she was living with her brother Russell and his wife and some siblings. That March she and her mother and some siblings moved to another residence. In July 2011 she and her mother and several younger siblings moved to Fairfield Street into a home owned by Tracie S. In August 2011 she and her mother and some younger siblings moved to Dunville. In September 2011 she moved in with her brother Russell and his wife. In January 2012 she got an apartment which Coty F. moved into shortly thereafter. By the summer of 2012 she and Coty F. moved into the home of Russell and his wife. In January 2013 she moved into Cory’s apartment where they were joined by Cory’s three children 50% of the time and their younger brother Tyler much of time. In April 201 she and Cory obtained the home they now live in with four children on a half time basis as described above.
This has been a lot of moves in the last 2½ years, but the Mother said that she now plans on staying with Cory for the foreseeable future, and the home is large enough for everyone there.
The move to Russell’s in 2012 was described as being because Russell’s wife Rebeccah bailed out Coty F. and he had to live at her and Russell’s home. She said she broke up with Coty F. when he was placed in the back of a cruiser on November 9th, 2012.
She recalled the last time she took C-L to see Dr. Greenspoon. It was approximately June 20th, 2011 she said and she had an appointment for herself. She said, “as far as I can remember he saw me and the baby”. She said the baby seemed fine that day and the doctor had no concerns.
This visit to Dr. Greenspoon was of some controversy among counsel. It was acknowledged that there was no record of this visit in Dr. Greenspoon’s records and he was not called as a witness due to unavailability. The Mother claims that the doctor saw C-L this day in regards to a fall from the swing and that the child was fine.
Counsel for the C.C.A.S. pointed out that during one of the police videos Wendy Guiden asked the Mother why she did not seek medical help in connection to the fall and she said, “I guess I should have”.
Details of the falls from the swing her were given. The Mother said the final fall from the swing was when she was sleeping and one of her brothers found C-L on the floor. He went and got the maternal grandmother who woke the Mother up. She said she gave C-L a bottle and she seemed fine.
She described a second fall from the baby swing and the circumstances were similar. The child fell on a soft blanket this time. One of the Mother’s brothers found C-L on the floor on the blanket and he went to get the maternal grandmother. The Mother was asleep. The witness asked who put C-L in the swing on these two occasions and she said it could have been her on the Father.
On both occasions the brothers went to get their mother (Mary C.) who then woke up the Mother. The Mother indicated that the swing had a wide gap where the buckle was, and it was big enough that you could put your hand in it. She acknowledged that the child was occasionally in the swing while she was sleeping at night.
The Mother gave her version of events during the weekend prior to C-L being admitted to the hospital. She said the child vomited once on the Saturday and several times on the Sunday. She described two visits to King’s Buffet restaurant for dinner that weekend, once on Saturday and once on Sunday. On the Saturday evening C-L was not taken to the restaurant and a family friend named David babysat C-L. She said that David informed her when she returned that evening that C-L had thrown up “like a waterfall” and that C-L seemed warm. The Mother thought this was because a furnace was coming on and did not consider that it might be a fever. She gave the child some child’s Tylenol however and said that C-L was fine on Sunday until the evening when she threw up again. The child was taken to King’s Buffet on Sunday night according to the Mother and seemed fine at that time.
Counsel from the C.C.A.S. pointed out during cross examination that the maternal grandmother only mentioned one trip to King’s Buffet and there was only one reference to King’s Buffet in the police interview. The Mother said it was hard to remember and that she was doing her best to remember.
The Mother said she took C-L with them to the restaurant on the Sunday night because she vomited before dinner and was fine after she vomited. She wondered if the child was just reacting to a change in formula.
There was another “waterfall vomiting” described from Monday night and the Mother decided to take her to the hospital on Monday evening. Friends dropped by and offered to take the parents and C-L to the hospital. They went to St. Joseph’s Hospital and learned they needed to go to McMaster Hospital, so they walked to Copps Coliseum to get money for cab fare from Mary C. who was there for a concert. She said that A.S-A went into the Coliseum to get the money from Mary C, but Mary C. said she came out and met them on the street.
She repeated during cross examination that she recalls the child vomited once on Saturday, twice on Sunday, and once on Monday. She acknowledged being worried Sunday night after returning from the restaurant. She considered a visit to the hospital that night but fell asleep and she was babysitting her brothers. By the Monday morning she thought C-L was fine again.
Ultimately the child was admitted to the hospital on the evening of Monday, June 27th, 2011.
There were several questions for the Mother about her relationship with the Father, A.S-A., and his care giving of C-L. She met him at age 18 through her brother Russell and sister-in-law. She described him as not helping much with C-L’s care. He would prop up a bottle with her in the baby swing. She said she offered to teach him how to make formula but he was not interested. She also said he was rarely alone with her and there were always other people in the house.
She described some incidents where they broke up and indicated that she was completely not wanting a relationship with him anymore by the time C-L was apprehended.
The Mother was asked why she sent messages to the Father by Facebook that seemed to want him back in C-L’s life while also saying he should never be alone with her and might have caused her injuries. For example, on February 6th, 2012 she wrote:
“I love you and that’s never going to change…….She needs us both……please message me back it would mean everything to me I love you and I wanna be friends for C-L so when I get her home im hoping the 27th when we got court she comes back to me ccas are still keeping your visits there till the file is closed but you could still come here and visit her just don’t tell them because they wont let it happen message me back please and thank you.
The Mother said she sent these messages because she was hoping that the Father would come to the agency and be part of C-L’s life because C-L needs both parents in her life. She said the child needs her biological father.
Several questions were also asked of the Mother regarding the father (Coty F.) of her youngest child. She said she met Coty F. when she was pregnant with C-L, and that they began a sexual relationship sometime around November 2011. He moved in with her in approximately March 2012. Coty F. was arrested in September 2012 but he told the Mother he was innocent and so she stayed with him. The relationship ended she said when he was “put into the back of a cruiser” in November 2011. She said things were fine before that and by November she knew he was going away for quite a long time. She said she cannot be with someone who is in and out of jail.
When asked if she lied to the C.C.A.S. when she said that C-L was her priority and she was not in a relationship with anyone as of November 2011, she said that she did not think of it as a relationship.
The Mother said that she will not resume a relationship with Coty F., but she does have communication with him and visits him in jail from time to time. She provided letters from him where he says he wants to be together with her and their child when he gets out, that he loves her with all his heart etc. She said she has written him back and said, “I love you too”, but that she has made it clear that she will not be in a relationship again with him.
The Mother said that she receives a letter from Coty F. about every three weeks. Sometimes she writes him back and sometimes she visits him. She says she visits a couple of times a month. She was asked if it occurred to her that all these visits with Coty F. give him hope that they will reconcile and she said that this had not occurred to her, but it is possible.
The Mother acknowledged in cross examination that she still has love for both Father’s (A.S-A. and Coty F.) because they are the fathers of her children, but she will not be in a relationship with either again and that both are in and out of jail. However, she said that both children should have their father’s in their lives.
The Society counsel asked the Mother about various family relations. She acknowledged being angry at her mother for telling the C.C.A.S. that Coty F. had been arrested in August 2012. (In fact they learned from another source).
She acknowledged having a falling out with her brother in early May 2011 that lasted a couple of months. She could not recall what it was about. She said she did not want to end up like her sister Debbie who had all of her five children taken from her care. Debbie was described in her trial in 2003 as being passive and dependent in her relationships. One of her children was admitted to the hospital and described as having suffered severe physical abuse. Debbie had no explanation as to how this happened. The Mother herein said that she did not want to end up like Debbie because she covered up for her boyfriend. Some other family individuals were described.
It was the Mother’s evidence however that for the most part she gets along well with her extended family and that they are supportive of her.
The Mother was asked why she appeared to be so upset in the second police interview. She appeared to be crying throughout. She said that it was because she was upset because she had never been investigated before and was very scared that she could lose C-L. She said however that she had never done anything to harm C-L.
Questions were addressed to the Mother regarding counselling that she was requested by the C.C.A.S. to take and that was recommended by Dr. Ashbourne. This was to be counselling that would help her develop healthier adult intimate relationships in order to protect herself and her children. Enhancing her assertiveness and addressing her passive nature was also suggested. The Mother said she began this counselling through Catholic Family Services. It appeared from answers given in cross examination that she only had two sessions and the first one was late March or early April 2012. She said it was more of a Walk in Clinic and that each time she had a different counsellor. When asked what she has learned she said. “Nothing really. I have just been expressing my feelings to two different counsellors”. When asked if this was primarily a discussion about dealing with her children being in care of the C.C.A.S. and the trial, she said “yes”.
When asked when further counselling would take place she said she would call Nicole from The Good Shepherd and line something else up.
There were questions about the role of Tracie S. and Rick B. Facebook messages sent in 2012 to A.S-A. indicated she would not allow Tracie S. to have C-L and clearly had a negative opinion of her. She also complained in 2012 that Rick B. was coming to a visit because he had laid his hands on the Father (according to the Father). She also thought that Tracie S. had caused bruises on one of her children. However, she said that this opinion of Tracie S and Rick B. was based on false information from A.S-A.
She now has a positive view of both of them. She added that she has gotten to know Tracie S. because she sees her at some of C-L’s medical appointments and she believes that Tracie and C-L are close. She also said that she has seen Rick B. at the end of a visit with C-L and she now has a favourable opinion of him. She acknowledged that she originally believed the negative things that A.S-A. said about them, but she no longer does.
The Mother acknowledged that she smokes and that she is aware that C-L has asthma. However, she said she has cut back quite a bit and always goes outside to smoke. She added that she can go a long time without a cigarette because she has done so at a six hour visit. She will take steps to quit she said.
The Mother outlined some plans. She hopes to have C-L returned to her and is willing for it to be a gradual process with her time increased as the process moves along. She also is agreeable to Tracie S. having a role in this process and she said they get along well now. She would prefer the child be placed with Tracie S. in fact rather than be a Crown ward because then C-L would be with family. She would also be willing and able to arrange access through Tracie S. if necessary she said.
She is attending school in order to obtain her High School Diploma. School was held three days per week from 4:30pm to 7:30pm as of the trial.
The Mother said she is not in a relationship with anyone now. She blocked the Father from her Facebook page during this process and believes she has more insight into unhealthy relationships. She also said she would abide by any terms of a Supervision Order. If this meant that she could not allow the Father to see C-L then she would abide by this. She would continue with counselling and sign a release for information. She would place the child in a daycare as that was recommended. She feels she can handle the child’s special needs and pointed out that she attends most appointments now. This will include taking advice from the Occupational Therapist and Physiotherapist, and other service providers.
Although she earlier said that the Father usually resides with Tracie S. whenever A.S-A comes out of jail, she is confident that Tracie can handle any rules regarding him.
The Mother pointed out that she already has an appropriate residence for her and C-L and that she has appropriate supplies and a child’s bed. She said that if she and Cory have a falling out that she would get her own apartment, but she does not think that this will be necessary.
The Mother added that she will comply with any requirement regarding the father of her other child Coty F. and that they will not be in a relationship again.
When asked by her lawyer if there were any recommendations that she has not followed, she said that she should have told the C.C.A.S. about her relationship with Coty F., but that she did not because she did not think it was a serious relationship, and she noted that there was no court order requiring this information. However, she said, that she would keep them advised of any new people in her life in the future.
[157] The Father (A. S-A.) did not attend the trial once. On the first day of trial, his lawyer told me that a message was left at her office saying that he was sick. Ms. Katz was willing to start the trial without him and she said that his position was that he supported the plan of his mother Tracie S. During the 16 days that this matter was in trial, the Father never appeared.
[158] With the exception of the first day of trial, there were no further suggestions that the Father was sick. His counsel was present every day and maintained the position that the Father felt that it was best that C-L be placed with Tracie S. and Rick B.
[159] There were two sources of information that we were able to receive from the Father indirectly.
[160] The first source was the two videos of the police interviews conducted with him regarding the police investigation into C-L’s injuries. Both videos were played in court.
[161] The first interview was conducted on June 29th, 2011. The Father described the events surrounding the admittance of C-L into the hospital in June 2011. He is heard saying that he went to the Mother’s home on Father’s Day weekend. C-L had vomited Saturday morning and it continued to Sunday night and they took her to the hospital at 10:00 p.m. or so.
[162] He described his relationship with the Mother as on and off. He said they had broken up about 4-5 times. He said he took an active role in C-L’s care when they were together. They were together for about a year and a half before C-L was conceived he said. He said he did not know what caused C-L’s injuries. He acknowledged hearing one of the Mother’s brothers saying “I hope your baby gets hurt”, but he did not take it seriously because it came from a 12 to 13 year old.
[163] He described the things he did with and for C-L when he had the care of her a few times. He also described the swing and crib in the home.
[164] At the point of this interview the Father had been sentenced to 21 days in jail for dangerous operation of a motor vehicle and theft over $5,000.00 regarding a stolen car.
[165] The second interview was conducted on September 30th, 2011 and was held at the Hamilton Detention Centre. He had been taken back into custody on August 31st, 2011. In this interview he was asked about concerns that he was seen tossing C-L in the air, and which he did not mention in the previous interview.
[166] He demonstrated with a doll what he says he did with the baby, and in his demonstration his hands never left the doll. He said that the maternal grandmother told him to stop it and that he said “I know how to handle a baby”. He said this incident happened only once. He described it as just lifting the baby up and down a few times and said she was fine. He said if someone said it happened again, it would be a lie. He denied telling the Mother not to mention an episode with the child falling out of a swing to the police. The Father said he was the one who stopped the Mother’s teenage brother from handling a BB gun in the home near the baby. It was not him who was using a BB gun near the baby he said, and he did not shoot her in the face. The reference to the child being shot in the fact with a BB gun was in relation to an unexplained red mark on her face.
[167] The Father also claimed that he saw the Mother lift C-L in the air the same way he did and that the maternal grandmother commented on this.
[168] He concluded the interview by saying that he is not a violent person.
[169] I appreciate that these comments made during police interviews were not under oath and not subject to cross examination at this trial. I have summarized the content of the interviews since the videos were played on consent and they are part of the police investigation into C-L’s injuries.
[170] The second source of information that I have from the Father is his responses to the Safe Reference Form. He gave a very positive reference for his mother Tracie S. and Rick B. He said that he strongly agreed that both were capable of providing love and security to a child. He indicated that he would be very comfortable with his mother and Rick B. caring for his child on a permanent basis if her were unable to do so. Many positive individual characteristics were described for both.
[171] Since the Father did not attend the trial, I do not have the benefit of hearing any of these comments under oath and none were therefore subject to cross examination.
[172] Cory H. testified. He is the 24-year old brother of the Mother. She lives with him. He had five children and three live with him half of the time. One of the five died. He said he has a criminal record for theft over $5,000.00 and theft under $5,000.00 but that his last conviction was in 2009 and he was a youth at the time. He is unemployed but is attending school to upgrade and wants to eventually open a moving business. He said that his 15 year old brother spends a lot of time in his home. The younger brother lives in a foster home but stays overnight at the home of Cory H. on weekends.
[173] The Mother resides with her brother Cory H. now and he is supportive of her. He acknowledged however that the Mother and Coty F. were residing there at one time and there was a falling out. The mother of Cory’s children (Lynda) had become homeless and Cory H. let her stay with him and the Mother and Coty F. Lynda allegedly rented pornographic videos off the cable box and a bill came in for about $1,500.00. The cable was in Coty F.’s name. The Mother and Coty F. moved out in June 2012 over the incident. Later on Cory H. and the Mother patched things up. He said that prior “fallings out” were when they were in their mid teens.
[174] The witness said that he sees himself sharing a residence with the Mother for a long time and that this arrangement will hopefully include the Mother’s two children.
[175] This witness is currently involved in litigation with the mother of the three children in his care. Each is requesting sole custody instead of the joint custody and shared timesharing they currently have.
[176] Tracie S. was called to testify by counsel for the respondent Father, as she was not a party to the action. She was questioned by all three counsel regarding her background, her relationship with her family and the Mother herein, her plans for C-L, her lifestyle, her reaction to the kinship references, etc. A summary of her testimony is as set out herein.
She is 40 years of age and her husband Rick B. is 53 years old. She has three children, Richard S. age 23, A.S-A. age 20 and a 12 year old son B.
Her oldest child was raised primarily by her mother because she was 17 when she gave birth to him. However she saw him often. She says the two of them have good days and bad days and that he lashes out over different things. He was apparently mad at her the day he gave her a reference for the kinship assessment, so he gave her a bad one. He was mad because she would not let him ride her motor cycle because she did not have insurance. She said they fight verbally and it is quite bad, but that if she tells him to leave her house, he does leave and may slam the door as he is leaving. He also hangs up the phone on her at times. Richard was said to have been nine months old when he last saw his biological father.
The paternal grandmother said that Richard does not visit often as he does not drive.
Tracie S. said that Richard S. wrote her a nasty reference over the fight over the motorcycle and said that he did not want her to get C-L. However, by the time of Tracie S.’s wedding in April, her son Richard S. was present at the wedding and walked her down the aisle.
Her middle son A.S-A. (the Father herein) lives in an apartment in Hamilton and has not lived with Tracie S. since the summer of 2012. She said he has been in trouble with the law a few times and she usually goes to court and has posted bail. However, she has also withdrawn the surety. Her middle son has also stolen Rick B.’s car and he has stolen from her. A.S-A. was described as having a good relationship with his biological father. Tracie S. and the father of A.S-A. were no longer in a relationship when she was pregnant with him.
The witness was asked if she asked her son, the Father, if he had done anything to hurt C-L. She said she asked him if something had happened to C-L and that he was not telling her about and he said “no”. This question was in reference to her comment to the police that she would ask her son what happened and that he is honest with her.
The witness said that her son A.S-A. visits from time to time and she does laundry for him sometimes, but he does not live there. In addition to occasional criminal activity, A.S-A. was described as having a severe case of Attention Deficit Hyperactive Disorder (ADHD) and a small case of Opposition Defiant Disorder (ODD). He was 7 years old when he was diagnosed with ADHD. She said that he told a lot of lies and sometimes it caused the C.A.S. to investigate. For example, he once said that Tracie’s brother beat him with a belt buckle, but it was determined to have been impossible because Tracie S.’s brother was incarcerated at the time.
This witness also talked about her 12 year old son B., who was described by all as a well behaved child. His biological father does not see B., and he was described as having physically assaulted Tracie, and as having not been nice to B.
B. has some problems with anxiety but Tracie S says she deals with this. B. likes to be at home. Once he threw up over the stress of being away overnight at a sleep over. However, he does not take medication and appears to be a well liked child.
Tracie S. was never married to any of the three men who were the father’s of her three sons. She was married to a man referred to as Mr. White and they divorced. She learned that Mr. White had cheated on her and he incurred enormous debts on her credit cards. Eventually she declared bankruptcy over this. They were together for ten years and she said he was mean spirited and charged with theft just before she left.
Many years ago when A.S-A. (her middle son) was young, Tracie S. was in a relationship with a man referred to as Vince. He was described as being abusive and he would make A.S-A. do strange things like kneel on the floor. She said she was afraid to leave him and it was not until she got out of this relationship that she knew what abuse was. While she was with Vince the children were removed from her care for a few days due to lies told by Vince. She apparently let Vince back in again after separating in 2001 and he assaulted her in front of the children. This reconciliation lasted only two weeks. She said she let him back in because he said things would be better and she had a fantasy about family life.
The witness described her relationship with Rick B. as being very good, very positive, and that they are supportive of one another. They met in January 2009 and began dating in June 2009. They stopped seeing each other in April 2011 but were back together in July 2011. She said they had some issues to solve during those three months and they did that by talking it through. They moved in together in July 2011. They became engaged on November 19th, 2011 and were married on April 6th, 2013. Prior to getting married the couple had some relationship counselling for eight sessions. This was just to make sure they went into the marriage strong she said and it was more of a pro active action and not the result of any problems.
She spoke about the presence of her father in her home who now lives with her. He has cancer, and as of trial, he was quite self- sufficient. He was still showering on his own and driving a car. A nurse comes into change his catheter. Tracie S. takes him to his medical appointments. His health is expected to deteriorate considerably within the next year. The witness said she will have to decide at some point in the future on whether or not she can handle his care in her home. The father of Tracie S. was described as being rather stubborn by nature. For example, he refused to consent to a criminal record check which was required for the kinship assessment.
Both Tracie S. and Richard B. are employed in the health care section and are trained as Personal Support Workers. At present, Tracie S. is off work on long term disability. When she last worked it was in the field of medical office administration. Her job involved scheduling and she said it could be stressful. For example, she scheduled 250 people at St. Peter’s Hospital and more recently she scheduled 700 people. If someone calls in sick she has to find a replacement quickly.
She said that her medical leave was initially caused because her father was diagnosed with cancer and was deemed to be terminally ill. Then there was the stress at work with a few mistakes made and the issues surrounding the process with C-L. All of this led to a time off work. She has two medications that she takes. One is to help her sleep and one is to treat anxiety and depression.
The long term disability ends in September 2014 at which time Tracie S. hopes to return to work. She says she does not feel ready yet as she is still feeling anxiety. When she last worked she was having trouble focusing.
The witness said she feels anxiety when she is in groups. She was off work as of March 2012 and noticed this in June 2012. She can get the sweats and starts to breathe fast when around people and feels claustrophobic. It does not take a large crowd she said, and it can feel like a panic attack.
The depression is different and she believes this is connected to the realization that her father is going to die. She was scheduled to start group sessions in May 2013 to deal with the anxiety. This would be like a support group. It was reported that the family doctor for Tracie S. said she was in good general health, but acknowledged that the same doctor would had to have described her as being completely unable to perform her duties in order to qualify for long term disability.
She had a gastric by-pass surgery a while ago and lost one hundred pounds. She also had some shoulder problems and a hysterectomy, but expressed no ongoing problems from any of these issues and none were reported by anyone else.
Tracie S. said that her current medications for anxiety, depression and sleeping are working well and that she absolutely feels able to handle the needs of her ailing father, 12 year son, and C-L on a full time basis.
She said she has no physical or emotional limitations that would prevent her from looking after all of the above.
If she returns to work there are Day Care Centres near her residence for C-L.
The witness described the home that she has lived in for three years and she provided photographs. It is a five bedroom home and there is a big yard and a dog and cat. There were no concerns about the home and it appears to be a very appropriate place to raise children. Tracie S. said she quit smoking years ago and that Rick B. never smokes in the house. She believes he could quit smoking all together however as he did it a couple of years ago.
[177] There was testimony about her relationship with Wanda H, and her disappointment in the reference given by her during the kinship assessment. Wanda H. clearly gave a negative reference for Tracie. She described Tracie as an acquaintance, and not a friend, whom she has known for about six years. She said that Tracie S. only told her of using her name for the application after the fact. The comments attributed to Wanda H. include:
Tracie does not like to be tied down to a routine required for a full time caregiver.
Tracie did not do a good job of raising her own children and she is “never there” for her 12 year old son, who is always left with somebody else.
Tracie uses alcohol excessively, has poor money management, and struggles with depression.
Tracie wants to obtain custody of C-L for the wrong reasons which is to spite the child’s mother and obtain money from the C.C.A.S.
Tracie left her ill father alone while she was at a trailer and Wanda H. had to help out.
Tracie allows C-L’s Father, A.S-A, to live at her house.
Tracie yells and swears at her 12 year old, as does Rick B.
Tracie will not follow through with all the appointments C-L will need.
She never helps her son with his homework and he struggles in school.
[178] Wanda H. said she would have asked Tracie S. to find another reference person if she had been asked ahead of time.
[179] It is important to point out that Wanda H. was not called as a witness. The comments from her set out above were contained in the SAFE Reference Form. They are included because the C.C.A.S. relied on all the reference responses in coming to their conclusion regarding qualification for kin care and because Tracie S. was asked about all the comments by the various references.
[180] In response, Tracie S. pointed out that:
Wanda H. actually asked to be a reference because she herself was a foster parent and knew the process.
They had a falling out about a year ago which involved Wanda telling a mutual friend lies about Tracie.
They patched things up and Wanda H. was going to be a bridesmaid in the wedding of Tracie S. and Rick B., but they had another falling out prior to the wedding when the same mutual friend told Tracie S. that Wanda H. planned on giving a negative reference.
Wanda H. cared for Tracie S.’s oldest son Richard S. for a while several years ago when Tracie’s mother was having difficulty with him as a teenager.
She thought of Wanda H. as a friend but grew to realize that she tells lies.
She does not drink alcohol due to the by-pass surgery and rarely parties.
The comments made by Wanda H. are not true. She is always there for her 12 year old and she does not drop him off for hours. She has a good relationship with C-L’s mother and is not motivated by money.
Wanda H. yells a lot at foster children and she (Tracie S.) once saw her coaching foster children about what to say to a worker regarding an incident with another foster child.
She was clearly surprised to learn of the negative comments from Wanda H.
[181] Testimony was given regarding the references given by Laura F. and Gordon F. Tracie S. says that their names were given because you had to give the names of a couple who have known you as a couple for the kinship process and they did not have a lot of couple friends at the time since she and Rick B. only met in 2009. The reference from this couple was given by way of a telephone conversation between Laura F. and Jennifer Liscombe. Overall as reported in the SAFE Reference Report there was more negative than positive comments attributed to Laura F. which included:
Tracie is impulsive and does not think through decisions.
Tracie does not like or want to work and is lazy.
Tracie S. and Rick B. are good people but not fit to raise kids. Two of Tracie’s own children are really bad kids.
Tracie does not stay in a relationship when the going gets tough.
Rick B. stabilizes Tracie. He is committed and dependable.
Tracie told her that she is hiding her son A.S-A from the C.C.A.S. when they come. Laura F. worries that Tracie would not protect C-L from A.S-A.
Tracie is motivated out of spite to the birth mother and she is not child focused.
[182] In response to the above comments attributed to Laura F., Tracie S. testified that:
The two couples have been together for several social functions and they were all acquainted because the two men (Rick B. and Gordon F.) worked together.
She has not asked Laura F. to babysit her 12 year old son. He has been included in dinners, etc, but as a group. She said it was Ms. F. who offered to take the boy on a bus tour when they were all in Vancouver.
If her son A.S-A. came to her home it was not secret or hidden from the C.C.A.S. and she did not comment on that to Ms. F.
She is not motivated by spite of C-L’s mother but out of genuine desire to provide C-L with a loving family home.
She and Rick B. do not have many parties or a party lifestyle. Rick B. has maybe two or three alcoholic drinks in a week.
Now that she and Rick B. have been together longer they have more couple friends whom they might have asked.
Overall she was quite surprised by the position taken by Gordon F. and Laura F. as they had been in each other’s company several times.
[183] The witness feels that she and Rick B. are well suited to navigate the health care system because she and Rick B. have worked in the health care system for many years. She said she is aware of C-L’s special needs, that she has delays, and that it is very important that C-L not hit her head again. She says that her only motive is to provide C-L with a family and loving home. She would follow recommendations from the physiotherapist and occupational therapist.
[184] Tracie S. said that she and the Mother had a relationship prior to the child’s hospitalization. She said she would visit the Mother for a brief time about once a week. She described the Mother’s residence during that time as being very busy with up to twenty people coming and going along with various dogs.
[185] She said her relationship with the Mother became strained after the hospitalization because of everything that happened. However, she said that they have a good relationship now and that if the court orders a type of shared parenting that she could co-parent with the Mother. She also said she would have no problem with the Mother coming over for access visits even if it was daily. She also was asked if she would supervise access for her son, the Father herein, and she said she would, if it was required. Tracie S. said her relationship with him is “on and off” due to the choices he has made and she would respect any order made regarding his involvement with the child, or lack thereof. She said she would call the police if he came and tried to take C-L without authorization.
[186] She would prefer that the C.C.A.S. not continue to be involved but would co-operate if that is ordered.
[187] When asked why having C-L would not be too stressful giving that work was, she said “there is only one of her - there are 700 at work”.
[188] When asked if she had any difficulty with the Mother herein coming for the child, she said “no”.
[189] Richard B. (also referred to as Rick B. testified). He and Tracie S. were married on April 6th, 2013. He has known her for about four years. This is his third marriage. He has one child, being an adult son, Bradley who he is close to and who provided a positive reference for the kinship assessment. He was married to Valerie (his son’s mother) for 12 to 13 years and they still get along. He was married to Donna for 14 years and is still close to her three children, now ages 19, 22, and 23. Rick B. is now 53 years of age and Tracie S. is 41 years of age. Some highlights of his evidence are as set out below:
He has a good relationship with Tracie’s 12 year old son B. and helps him with his homework and acts as a parent. The child calls him Dad.
He took the Accounting program at Humber College and worked as a Personal Support Worker (P.S.W) at Wentworth Lodge (a local long term care facility). He is a member of the Canadian Union of Public Employees (C.U.P.E) and has a pension through the Ontario Municipal Employees Retirement System (OMERS).
As a P.S.W. he would earn $26.00 per hour. However, he is currently on a temporary assignment with the C.U.P.E. and earns more (about $120,000.00 per year). His current position is a long term one while he replaces someone. He does not know if that person will return. If that individual does return, then Rick B. may have to go back to being a P.S.W.
This witness became acquainted with Gordon F. through work. Rick B. represents the Union at the national level and Gordon F. represents the Union for the City of Hamilton. There were several social get togethers mentioned during the trial where the wives of the men were included (Tracie S. and Laura F.) and that is how Gordon and Laura were proposed as references for the kinship assessment.
This witness was asked about many of the negative comments that were made during the kinship process. He said he is a modest social drinker and Tracie S. cannot drink due to by-pass surgery. They entertain a few times a year and he does not know where the label of partying and drinking came from.
He says he disagrees with anyone who said Tracie lacks in energy and is lazy. He says she has a very good energy level and is always on the go, looking after her son, helping her father, doing things for others etc.
Rick B. also described Tracie as having a good mood and does not agree that she is moody. He also said there are no problems with gambling or violence. In addition the home is tidy and clean, so he has no idea why anyone would say it was not.
The witness was asked questions about Tracie’s leave from work and possible stress factors. He said they were in Cuba in October 2012 when she learned her father had cancer and that she was a mess upon hearing the news. By the time she went on stress leave, she was dealing with a sick father and some financial problems. She thought she was going to lose her house. She was described as not being able to keep a straight thought when she went on leave. At first she was on short term disability (for about 8 weeks). In January 2013 it was converted to long term disability. He said she seems much better at home now, unlike before when she cried a lot.
The witness acknowledged in cross-examination that other stress factors in the home would include dealing with Tracie’s two older sons who have caused stressful relations in the home. A.S-A. for example has been a source of stress and anxiety for years he agreed.
When asked if it would be stressful dealing with the Mother herein, if they obtain custody of C-L, he said he did not know her well. He said that the Father would not be there to live, so there should not be extra stress for that.
Rick B. acknowledged that Tracie S. is not ready to go back to work yet as she could not yet handle the conflict at work, and her doctor will not give her leave to return to work yet. However, he believes she is doing better and able to handle the demands of a 2 year old child with delays in the house. In addition to her current duties (dealing with her father and a 12 year old).
Rick B. acknowledged that financial difficulties were a source of stress for Tracie S. when this process began, so he was not surprised that several of the references mentioned this. However, he said it is no longer a factor. Tracie had debts after her separation from Mr. White in early 2009. As such the couple had financial problems during the homestudy for a while. He believes the debts were caused by Mr. White and that Tracie S. was unfairly burdened with them. She declared bankruptcy and the debts were extinguished. She received nothing for her Fairfield Avenue home. Tracie S. pays $266.00 per month for the bankruptcy he said and is nearly finished.
Given his increased salary the elimination of the debts and the progress of the bankruptcy, he believes that no one would have reason now to question their financial ability to raise C-L.
Rick B. spoke positively of his relationship with Tracie S. Since both had been in broken marriages or relationships in the past, they had eight sessions of counselling to help make them a stronger couple.
The witness discussed the frustration the parties felt when the access they had in the home with C-L was put on hold due to an investigation that was closed with the complaint deemed unverified. He said it was difficult to commit to all the visits at the agency because they were at set times and Tracie S. had appointments for her father, they were down to one car for a while, and Tracie S. was busy preparing for the wedding. He said that if Tracie S. did indeed say, “I want to cancel all the visits because I am getting married and I am run ragged”, it was just because of the above mentioned factors and not a reflection on their desire to parent C-L.
He indicated that he and Tracie S. were very disappointed to learn that they were not going to be approved as kin care providers. He said they had been led to believe that they were going to be approved and they even started preparing by buying things like a stroller. He denied that the couple told Ms. Liscombe that they were not going to proceed with their plan once the results of the kinship assessment were known. He said if that impression was left, it could only be because in a moment of frustration, Tracie S said during the difficult and upsetting disclosure meeting, something like, “I don’t even know why we are bothering”. He added that they felt as though they had gone through hoops to co-operate and had completed the required PRIDE program, which stands for Parent Resources for Information, Development and Education.
Rick B. added that they did not appeal the decision because it would just be an internal process through the C.C.A.S. and they could not afford a lawyer. Also, they learned that their plan could still be presented by the Father through the Answer he filed.
The witness said that although he does not know the Mother well, he has met her and he would have no problem with her coming to the home to see C-L, if that was ordered. He also said he would have no difficulty in calling the C.C.A.S. if the Father came to the house when he is not supposed to, if that is required. He said that both Richard S. and A.S-A would leave if he asked them too. The Father lived there prior to the kinship assessment being done, but moved out Rick B. said when Jennifer Liscombe recommended it. A.S-A was problematic in the past he said, and he stole his (Rick B.’s) car and stole other things from their home. He argues with his mother. However, Rick B. believes both older sons will leave if requested. Richard S. does not come over often he said.
Rick B. acknowledged that he smokes but that it is less than a half a package a day and he never smokes in the house. He believes he can quit without difficulty if C-L comes to live with them.
The witness said that he believes he and his wife are up to the challenges of raising a special needs child. He attended an appointment with the child’s physiotherapist and occupational therapist. He knows how to navigate the local health care system. He was present for many of the four hour visits in the home and is aware of the child’s developmental delays. He said they can handle it, if the child were to be in diapers for many years. He observed that C-L has progressed a long way but she is still behind other children of the same age. He appeared to be aware that C-L could have behaviour issues when she is older, but this is not known yet. Like Tracie S. he is of the view that it is in the best interests of C-L that she be in the care of himself and her paternal grandmother.
[190] Lorraine C. testified. She has known Tracie S. since she was about 7 years old. She was maid of honour at the wedding of Tracie S. and Rick B. Her name was given as a reference and she gave a very positive reference for Tracie S. She sees her as a good mother, a good friend, level headed, caring, etc. Lorraine C. said she sees Tracie S. being affectionate with her children. When asked about “poor money management, Lorraine C. said that it would have been difficult to be a single parent but that Tracie S.’s money management problems were due to the debts she was left with from her former spouse Mr. White. Lorraine C. was aware that Tracie S. filed for bankruptcy. She said that her children were always well cared for however. Lorraine C. pointed out that she volunteered for the C.C.A.S. for seven years and once made a complaint about someone who was inappropriate. Her point was that she would speak up if she had any concerns about Tracie S.’s parenting, but she does not have any concerns.
[191] Lorraine C. is of the view that Tracie S. is capable of handling her 12 year old, her ill father, the bankruptcy, and having her granddaughter C-L in her home. It would be difficult for anyone she acknowledged, but she believes Tracie S. is up to the task. She described Rick B. as a wonderful man. Lorraine C. also said that she hears Tracie S. mention C-L often and that she wants to provide C-L with a home.
[192] Laura F. was called to testify by counsel for the Father, A.S-A. Since the Father’s position is said to be that his mother Tracie S. should have custody of C-L, this witness was relevant as she had been contacted as a reference.
[193] Laura F. knew Rick B. through employment many years ago and then ran into him 20 years later. Her husband would see him through their Union work. Although the two couples socialized somewhat the greatest contact was between Rick B. and Laura’s husband Gordon F. Gordon and Laura F. were married in 1979 and have two children in their forties and grandchildren through both of these children. Laura F. works as an office administrator in an installation firm and she has been there since 1998.
[194] It was clearly difficult for Laura F. to testify. She had been assured that her conversation with Jennifer Liscombe regarding the kinship assessment would be confidential, but she has found herself identified as having made the comments she did to Ms. Liscombe and having to testify. This was a result of my Ruling.
[195] Evidence was given as to how Gordon and Laura F. became involved in the reference process. Laura F. said that they were asked for their full mailing address and they both thought it was for the upcoming wedding of Tracie and Rick. A month later a package arrived that contained the SAFE reference questionnaire. Laura F. said that had they known they were being asked to give a reference they would not have agreed. Laura F. said she was reluctant to say anything or to complete the form and send it in. Laura F. then received a call from Ms. Liscombe who wanted to know why she had not completed, and mailed in the forms. Laura F. said she responded by saying she had some concerns and when assured it was confidential she agreed to a telephone interview. She said she discussed the answers with her husband.
[196] Evidence was given about the times the parties spent together. There some answers to questions that were positive, such as:
Tracie is a good mother to her 12 year old son B. and he is a “good kid”. B. adores Rick. B.
Rick B. is committed to Tracie S and loves here. He has also been trying to repair some damage in his own extended family to widen the family circle.
She has no concerns about finances or gambling.
While she recalls being at the home of Tracie S. for a party and feeling there was too much drinking going on, she realizes the gastric by-pass surgery probably eliminated alcohol for Tracie S. now.
Both Laura F. and her husband enjoyed their time at the wedding of Tracie and Rick and other events.
[197] Some questions were put to Laura F. regarding the SAFE Reference Form that resulted in less favourable responses. Her answers included the following:
She felt a little used when she had the 12 year old son much longer than she expected during a conference in Vancouver when she thought Tracie S. was ill, but learned she had lunch with a friend. (Tracie S. explained she felt better and went out). Also, Laura F. felt they were hints about dropping the child off at her home which was intended to be a request for babysitting.
She has an impression of Tracie S. being one who lacks energy and does not plan any activities for the 12 year old when he is off for the summer.
Her older sons were not likely raised very well as they have serious problems. Laura F. is aware that Richard S. has anger problems and he needs help with it. Laura F. saw him act out at Tracie’s house during a party.
She overheard part of a conversation on a telephone at a function at her own home between Tracie S. and her son A.S-A. Laura F. said that Tracie S. sounded aggressive and was egging him on in a loud voice. Others could hear she said including the 12 year old. The conversation was said to have been about A.S-A. coming that weekend and paying rent. To Laura F. it showed a lack of discretion. She has also heard to speak aggressively about her boss, Laura F. said.
Concern was raised about A.S-A. who Laura F. understood has stolen a few times. He has stolen from Tracie and Rick including a GPS device out of her car, a car, and jewellery.
The witness said she is afraid of Richard S. and A.S-A. and that they make her uncomfortable. She says she would have done things differently if these two were her children.
The witness said that she was informed by Tracie S. that the Father was not supposed to be at her home and that, “when the worker comes they have to hide signs of him”.
Once Laura F. gave the 12 year old an electronic game station because his was believed to have been stolen by A.S-A.
Laura F. was asked about the stresses in Tracie S.’s life and she said she knew Tracie S. was off work on stress leave and that could be due to (i) stress from her job, (ii) stress from her father having cancer, (iii) stress from having her father in her house and he is difficult and has bullied the 12 year old (the boy apparently told Laura F. this). In addition there is stress because the 12 year old suffers from anxiety, and there is stress due to the older two sons and their issues. Also, it was noted that Tracie S.’s mother has health issues and their relationship has some issues.
[198] In all, Laura F does not see Tracie S. as someone who could cope with a special needs child. She said it would take a very special kind of parent to raise a child like C-L, and she does not think Tracie is the one. She also said she did not think Tracie could do it without Rick.
[199] Despite her answers to the above questions Laura F. said that she would not have said anything if she knew the result was that the child could be removed from her family. She did not know that there was a court proceeding and that Crown wardship was an option. She thought the kinship reference was about fostering. She said this whole process began for her with just some questions on a form. With hindsight she would never have participated. Nevertheless, she said she likes Tracie S. and does not want to keep her from her grand-daughter.
[200] Gordon F. was also called to testify by counsel for the Father A.S-A. He was asked about the reference given by him and his wife Laura F. and his knowledge of Tracie S. and Rick B. He said he only spoke to Ms. Liscombe once and that was when she called during the trial to say that I had ordered the release of the SAFE Reference Form. Clearly this was awkward for Gordon F. as it was for Laura F. He said that they would never have gone ahead with the reference if they had known that the confidentiality would be removed.
[201] Gordon F. said that he has known Rick B. through work for about 2½ years. They are business acquaintances and casual friends. They have gotten together socially with their wives several times.
[202] It was the evidence of this witness that he and Laura were not asked by Tracie S. or Rick B. to be references. The first they heard about it was when they received the form in the mail. He did not complete the form or contact Ms. Liscombe for a verbal interview, but he said he and his wife discussed the questions and he probably would have agreed with the answers Laura F. gave.
[203] During the course of his evidence this witness answered many questions that gave either a positive or neutral view of Tracie S. and Rick B. For example he acknowledged that:
Rick B. is a responsible and a hard worker.
He and Laura were just at Tracie and Rick’s wedding and had a good time.
Rick is good with Tracie’s 12 year old son and recently got reconnected to members of his own family.
Tracie and her 12 year old son have a good relationship.
He has no financial worries about them and their ability to care for another child.
He does not know if they had enough information to comment on the couple’s ability to parent. Likewise he does not have enough information to say if Tracie S. is capable of providing stability to a child. He agrees that Tracie is capable of providing love to a child because he sees her with her 12 year old son.
[204] In terms of the negative comments that were contained in the reference form, Gordon F. was asked to give examples. He had concerns about Tracie S. not being very motivated. He had an image of her from some gathering that she appeared to let others do the work. He said she commented before her wedding that she did not know how much longer she could work. He did not see her as energetic and thought she was quick to look for babysitters on a couple of occasions.
[205] When asked if he saw the couple as having a committed relationship, he said it was too early to tell.
[206] Gordon F. expressed some concerns about the two older sons of Tracie S.
[207] The witness said he did not recall disagreeing with anything his wife said in her interview with Ms. Liscombe. However, he said she was very upset at having to testify and he was very concerned for her.
[208] Richard S. testified. He is the oldest son of the paternal grandmother Tracie S., and the brother of the Father herein. He is 23 years old. He completed the SAFE Reference Form and gave a negative reference for his mother and Rick B. He said in his questionnaire that:
His mother was never home and that she was aggressive, confident, emotional, moody, serious and stubborn. He said his mother was never there for him and that she has a really bad temper. In addition, he said she acts like a child and has violent behaviour and poor money management. When asked in the form if the couple have a strong, loving, and stable relationship, he said he disagreed. When asked if he would feel comfortable in allowing the applicants (Tracie S. and Rick B.) care for his own child, he said he would be very uncomfortable. This witness said that his mother “is never home and barely has enough time for my younger brother – she always makes my gramma watch him whiles she goes out partying or drinking.”
This witness also said when asked if either of the applicants were capable of providing love and security to a child, that he “agreed” Rick B. could and he “disagreed” that Tracie S. could. Overall his comments were somewhat more positive about Rick B. whom he described as calm, active, friendly, hardworking, serious, stubborn, and compassionate.
[209] This witness completed his reference questionnaire in March 2012. He was called to testify by the Father’s counsel. He said that at the time he completed the questionnaire he was fighting at the time with his mother. They had an argument the day before or thereabouts and he was angry. He said she appeared aggressive to him but she is not like that all the time.
[210] He was asked about all the comments he made in his SAFE form and he put a more positive emphasis on his responses (ex-moody, stubborn, emotional). This witness was raised by his maternal grandmother and he said he felt that Tracie S. was not around a lot when he was younger, but that she came for birthdays, etc. He says he has a much better relationship with her now and that he now understands why he was raised by his grandmother. He said he likes Rick B. and feels he has grown up a lot in the past year. He attended his mother’s wedding to Rick B. in April and walked her down the aisle. When asked why he said his mother had a really bad temper he said it was because they had a fight over a motorcycle.
[211] His comments about poor money management related to things in the past he said. The expression “violent behaviour” related to the many arguments they had when he was younger. He said he does not know why he said she parties and acts like a child because he has not seen her party in years. He said he only said he would be uncomfortable in having a child in his mother’s care because he was angry at her.
[212] The witness said that he did not mean to say that his youngest brother was being looked after too much by Tracie S.’s mother. He just said that because he was angry.
[213] Richard S. Said that if he were to give his opinion today, it would be that Tracie S. could care for C-L very well.
[214] This witness said that he has never met C-L or the Mother. He said he does not fight with his mother, Tracie S., now but that her relationship with the Father (his brother) is a little rocky.
[215] When asked in cross examination why she said his mother had a really bad temper, he said that he would get really nasty and say mean things to her and she would say mean things back, and these were fights. These fights were only a couple of times per year he said and were mostly when he was younger. It would happen whenever he did not get his own way.
[216] Richard S. has a criminal record he said but no offences since he was a youth. The court asked him if this entire negative reference was over the incident with a motorcycle. He answered “pretty much”. He said he just wanted to drive her motorcycle around and she said no because it was broken or something. He said it made him angry because he used to work with motorcycles so he could have fixed it.
[217] Overall the evidence of this witness appeared to be for the purposes of changing his negative reference of his mother to a positive one and to support her position.
THE LAW
[218] In coming to a decision in this matter, I must follow the provisions of the Child and Family Services Act (R.S.O. 1990, c.C11, as am.).
[219] The relevant sections are set out below:
Section 1 reads as follows:
1(1) PARAMOUNT PURPOSE - The paramount purpose of this Act is to promote the best interests, protection and well being of children.
(2) OTHER PURPOSES - The additional purposes of this Act, so long as they are consistent with the best interests, protection and well being of children, are:
To recognize that while parents may need help in caring for their children, that help should give support to the autonomy and integrity of the family unit and, wherever possible, be provided on the basis of mutual consent.
To recognize that the least disruptive course of action that is available and is appropriate in a particular case to help a child should be considered.
To recognize that children's services should be provided in a manner that,
i. respects a child's need for continuity of care and for stable relationships within a family and cultural environment,
ii. takes into account physical, cultural, emotional, spiritual, mental and developmental needs and differences among children,
iii. provides early assessment, planning and decision-making to achieve permanent plans for children in accordance with their best interests, and
iv. includes the participation of a child, his or her parents and relatives and the members of the child's extended family and community, where appropriate.
To recognize that, wherever possible, services to children and their families should be provided in a manner that respects cultural, religious and regional differences.
To recognize that Indian and native people should be entitled to provide, wherever possible, their own child and family services, and that all services to Indian and native children and families should be provided in a manner that recognizes their culture, heritage and traditions and the concept of the extended family.
Section 57 of the C.F.S.A. reads as follows:
ORDER WHERE CHILD IN NEED OF PROTECTION - Where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders or an order under section 57.1, in the child's best interests:
That the child be placed in the care and custody of a parent or another person, subject to the supervision of the Society, for a specified period of at least three months and not more than 12 months.
That the child be made a ward of the Society and be placed in its care and custody for a specified period not exceeding twelve months.
That the child be made a ward of the Crown, until the wardship is terminated under section 65.2 or expires under subsection 71(1), and be placed in the care of the Society.
That the child be made a ward of the Society under paragraph 2 for a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding an aggregate of twelve months.
(2) COURT TO INQUIRE - In determining which order to make under subsection (1) or section 57.1, the court shall ask the parties what efforts the Society or another agency or person has made to assist the child before intervention under this Part.
(3) LESS DISRUPTIVE ALTERNATIVES PREFERRED - The court shall not make an order removing the child from the care of the person who had charge of him or her immediately before intervention under this Part unless the court is satisfied that alternatives that are less disruptive to the child, including non-residential services and the assistance referred to in subsection (2), would be inadequate to protect the child.
(4) COMMUNITY PLACEMENT TO BE CONSIDERED - Where the court decides that it is necessary to remove the child from the care of the person who had charge of him or her immediately before intervention under this Part, the court shall, before making an order for Society or Crown Wardship under paragraph 2 or 3 of subsection (1), consider whether it is possible to place the child with a relative, neighbour or other member of the child's community or extended family under paragraph 1 of subsection (1) with the consent of the relative or other person.
(5) IDEM: WHERE CHILD AN INDIAN OR A NATIVE PERSON – Where the child referred to in subsection (4) is an Indian or a native person, unless there is a substantial reason for placing the child elsewhere, the court shall place the child with,
(a) a member of the child’s extended family;
(b) a member of the child’s band or native community; or
(c) another Indian or native family.
(6) [Repealed, S.O. 199, c.2, s15]
(7) IDEM – When the court has dispensed with notice to a person under subsection 39(7), the court shall not make an order for Crown wardship under paragraph 3 of subsection (1), or an order for society wardship under paragraph 2 of subsection (1) for a period exceeding thirty days, until a further hearing under subsection 47(1) has been held upon notice to that person.
(8) TERMS AND CONDITIONS OF SUPERVISION ORDER – If the court makes a supervision order under paragraph 1 of subsection (1), the court may impose,
(a) reasonable terms and conditions relating to the child’s care and supervision;
(b) reasonable terms and conditions on,
(i) the child’s parent,
(ii) the person who will have care and custody of the child under the order,
(iii) the child, and
(iv) any other person, other than a foster parent, who is putting forward or would participate in a plan for the care and custody of or access to the; and
(c) reasonable terms and conditions on the society that will supervise the placement, but shall not require the society to provide financial assistance or purchase any goods or services.
(9) WHERE NO COURT ORDER NECESSARY – Where the court finds that a child is in need of protection but is not satisfied that a court order is necessary to protect the child in the future, the court shall order that the child remain with or be returned to the person who had charge of the child immediately before intervention under this Part.
Section 37(3) reads as follows:
(3) Best interests of child - Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall take into consideration those of the following circumstances of the case that he or she considers relevant:
The child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.
The child's physical, mental and emotional level of development.
The child's cultural background.
The religious faith, if any, in which the child is being raised.
The importance for the child's development of a positive relationship with a parent and a secure place as a member of a family.
The child's relationships and emotional ties to a parent, sibling, relative, other member of the child's extended family or member of the child's community.
The importance of continuity in the child's care and the possible effect on the child of disruption of that continuity.
The merits of a plan for the child's care proposed by a Society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent.
The child's views and wishes, if they can be reasonably ascertained.
The effects on the child of delay in the disposition of the case.
The risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent.
The degree of risk, if any, that justified the finding that the child is in need of protection.
Any other relevant circumstance.
Section 57.1(1) and (2) reads as follows:
57.1 CUSTODY ORDER – (1) Subject to subsection (6), if a court finds that an order under this section instead of an order under subsection 57(1) would be in a child’s best interests, the court may make an order granting custody of the child to one or more persons, other than a foster parent of the child, with the consent of the person or persons.
(2) DEEMED TO BE ORDER UNDER CHILDREN’S LAW REFORM ACT – An order made under subsection (1) and any access order under section 58 that is made at the same time as the order under subsection (1) shall be deemed to be made under section 28 of the Children’s Law Reform Act and the court,
(a) may make any order under subsection (1) that the court may make under section 28 of that Act; and
(b) may give any directions that it may give under section 34 of that Act.
Section 58(1) reads as follows:
- ACCESS ORDER – (1) The court may, in the child’s best interests,
(a) when making an order under this Part; or
(b) upon an application under subsection (2).
Make, vary or terminate an order respecting a person’s access to the child or the child’s access to a person, and may impose such terms and conditions on the order as the court considers appropriate.
Section 59(2.1) reads as follows:
(2.1) ACCESS: CROWN WARD - A court shall not make or vary an access order with respect to a Crown Ward under section 58 unless the court is satisfied that,
(a) the relationship between the person and the child is beneficial and meaningful to the child; and
(b) the ordered access will not impair the child's future opportunities for adoption.
Section 70 reads as follows:
70(1) TIME LIMIT – (1)Subject to subsections (3) and (4), the court shall not make an order for Society wardship under this Part that results in a child being a Society ward for a period exceeding,
(a) 12 months, if the child is less than 6 years of age on the day the court makes an order for Society wardship; or
(b) 24 months, if the child is 6 years of age or older on the day the court makes an order for Society wardship.
(2) SAME - In calculating the period referred to in subsection (1), time during which a child has been in a Society's care and custody under,
(a) an agreement made under subsection 29(1) or 30(1) (temporary care or special needs agreement); or
(b) a temporary order made under clause 51(2)(d),
shall be counted.
(2.1) PREVIOUS PERIODS TO BE COUNTED - The period referred to in subsection (1) shall include any previous periods that the child was in a Society's care and custody as a Society ward or as described in subsection (2) other than periods that precede a continuous period of five or more years that the child was not in a Society's care and custody.
(3) IDEM - Where the period referred to in subsection (1) or (4) expires and,
(a) an appeal of an order made under subsection 57(1) has been commenced and is not yet finally disposed of; or
(b) the court has adjourned a hearing under section 65 (status review),
the period shall be deemed to be extended until the appeal has been finally disposed of and any new hearing ordered on appeal has been completed or an order has been made under section 65, as the case may be.
(4) SIX MONTH EXTENSION - Subject to paragraphs 2 and 4 of subsection 57(1), the court may by order extend the period permitted under subsection (1) by a period not to exceed not to exceed six months if it is in the child’s best interests to do so.
[220] I was provided with a few cases which I have reviewed.
[221] The case of Children’s Aid Society of London and Middlesex v. S.(L), [2006] W.D.F.L. 572 (Ont.S.C.) was provided by the C.C.A.S. It is an Ontario Superior Court of Justice case from 2005. In this case Justice Aston did not believe the 3 year old child could be returned to the mother who he believed was either lying or wilfully blind to injuries done to the child by a partner. By trial a friend came forward with a plan. It appeared to the Judge that the purpose of the friend offering her home was to provide a transition whereby the mother would ultimately get her back. Both testified that they would abide by any conditions or terms of supervision.
[222] Justice Aston said at paragraph 28:
- It seems evident that the rationale for placing M. with Ms. S.F., from the prospective of both Ms. L.S. and Ms. S.F., is to provide a transition whereby M. might ultimately return to her mother’s care. They each testified that they would abide by any access order, including any terms of supervision or other conditions. I am prepared to give Ms. S.F. (if not Ms. L.S.) the benefit of the doubt on that point but M.’s life should not be in a holding pattern to see whether she might someday be returned to her mother. The amendments to the Child and Family Services Act in 2000 shortened significantly the period that young children should be in care before an order for Crown wardship was to achieve the specific purpose of early long-term planning for children in need of protection. If M. cannot be safely returned to her mother within one year of her apprehension (and I find that to be the case), it follows that the long-term plan of care would exclude a plan for her return to Ms. L.S. A supervision order should not be used as a mechanism by which to subvert the important distinction between temporary society wardship and permanent Crown wardship.
[223] The C.C.A.S. provided this case in response to suggestions by the Mother that C-L could be in the care of Tracie S for six months or more and then be returned to her.
[224] The case of C.A.S. of Hamilton v. M.(A), 2012 ONSC 6190, 22 A.C.W.S. (3d) 135 was provided by the C.C.A.S. This was an Ontario Superior of Justice case from October 2012. This case involved a motion for summary judgment. The court found that there was no genuine issue for trial and ordered Crown wardship without access. This case was provided to show that the length of time in care needs to be considered and that the child’s needs should come before the parent’s potential progress.
[225] Justice Pazaratz said at paragraph 52:
- S.C.M. has been in care more than 22 months – longer than the amount of time permitted under s. 70, even including a potential six month extension pursuant to s. 70(4). At a certain point – and section 70 helps us in determining that point – primacy has to be placed on the child’s actual needs over the parent’s potential progress. (Children’s Aid Society of Hamilton v. A.D.L. [2009] O.J. No. 4390, paragraph 144 (S.C.J.)).
[226] The C.A.S. provided this case to make the point that C-L had been in care for over 21 months as of trial and the suggestions that a parent support worker would now work with the mother and that a gradual reintegration would be planned for a time over six months from now was not acceptable or in the child’s best interest.
[227] This case was also referred to in terms of access for a Crown ward. Justice Pazaratz stated at paragraphs 61 and 62:
- Access is dealt with in sections 58 and 59 of the CFSA. Section 58 permits one to seek an access order in respect of a child who is in the "care and custody or supervision" of a Society. But section 59(2.1) creates a presumption against access where the child is a Crown Ward. Section 59(2.1) has not been changed by the recent amendments, and reads:
(2.1) A court shall not make or vary an access order with respect to a Crown Ward under section 58 unless the court is satisfied that,
(a) the relationship between the person and the child is beneficial and meaningful to the child; and
(b) the ordered access will not impair the child's future opportunities for adoption,
- Once there is an order for Crown Wardship, the focus of the CFSA is to establish a permanent and stable placement for the child. There is a presumption against access to Crown Wards (Children's Aid Society of Toronto v. C. (S.A.) (2005) 2005 ONCJ 274, O.J. No. 2154 (O.C.J.). The person requesting access must provide evidence with respect to both requirements of s. 59(2.1). Children's Aid Society of Metropolitan Toronto v. A. (M.) (2002) 2002 CanLII 53975 (ON CJ), 2002 CarswellOnt 1923 (O.C.J.); D. (C.) v. Children's Aid Society of Algoma (2001) O.J. No. 4739 (S.C.J.) (pages 16, 17). The rebuttable presumption under s. 59(2.1) is conjunctive. A person must rebut both elements of s. 59(2.1) or the access cannot be ordered.
[228] Likewise, the C.C.A.S. believes that access for a child the age of C-L would not be in her best interests.
[229] The case of Re A.(R.), 1990 CarswellBC 1658 (P.C.) was provided by counsel for the Mother. This was a 1990 case of the British Columbia Provincial Court. Two young children were removed from the care of their parents after they had unexplained injuries being broken or fractured ribs of 4-6 weeks old. The children were twin boys. One also had a skull fracture. A court appointed psychiatrist interviewed all members of the family, and a court appointed psychologist assessed the risk for child abuse. Both of these professionals recommended the return of the children to the parents and that is what the court did. The judge noted that all witnesses including witnesses called by the Child Protection Agency had glowing things to say about the parents.
[230] Counsel for the Mother submitted this case is as example of how a court can return children to parents when there have been unexplained injuries.
SUBMISSIONS
[231] During submissions counsel outlined their clients’ positions and in some cases provided alternatives.
[232] The C.C.A.S. is of the view that an order should be made for Crown wardship without access for purposes of adoption. This is because they believe that such an order would be in C-L’s best interest, the length of time she has been in care, and weaknesses in the proposals of the other parties.
[233] Counsel for the Mother provided two proposals. Her first choice was shown as Alternative Number 2. This proposal would see the child placed with Tracie S. for twelve months subject to terms of supervision. The Mother would have a minimum of ten hours per week of semi supervised access.
[234] The Mother, Tracie S. and the C.C.A.S. would meet at six week intervals to discuss the expansion of access and related issues. After six months overnight access would commence, and provided things were going well a gradual reintegration of the child into the Mother’s care would be put into place.
[235] The Mother’s second choice was her Alternative Number 1, which provides for joint custody for the Mother and Tracie S with Tracie to have primary residence. Access for the Mother would be in the discretion of Tracie S. and supervised in her discretion. Access for the Father would be supervised by either Tracie S. or the local Supervised Access Centre.
[236] The Mother believes she is capable of caring for the child and that this is in the best interests of C-L and was recommended by Dr. Ashbourne.
[237] Her proposal to have Tracie S. have the residency of the child was very much a second choice, but she believes that the two women can work together and that C-L would be better off with the paternal grandmother than being made a Crown ward. Counsel for the Mother suggested that the C.C.A.S. needs to continue working with the Mother and to provide her with parent support workers for a time in order to give her the good parent modelling that she was not given as a child.
[238] The proposal of the Father, as provided by his lawyer, was that the child be placed permanently with Tracie S., either as a custody order or as part of a supervision order. The Father’s plan does not include a reintegration to the Mother or a significant expansion of access.
[239] Tracie S. and Rick B. are not looking to co-parent with the Mother, according to the Father’s lawyer, but they would co-operate in anyway if the court orders a joint arrangement or a reintegration.
[240] In presenting this position of the C.C.A.S., Ms. Anis made many points, including the following:
There are time limitations in Section 70 of the C.F.S.A. and C-L has been in care too long to allow for a lengthy reintegration.
There is no presumption in favour of a family member having the child. It is just a best interest test.
The child suffered serious brain injuries while in the care of the parents and has global delays as a result. The Mother will not be able to handle the child’s special needs given her own lack of skills.
The Mother has moved often and had relationships with two men (the Fathers of her two children) who have been in jail and have criminal records.
The Mother has not done much to follow up with counselling and her plan is limited. For example, she mentioned a day care but had no knowledge of the cost or hours.
Past history is always an important factor and the child could suffer further harm in the Mother’s care again.
The Mother allowed the Father to care for C-L even though she had concerns about him.
The Mother was not initially forthcoming with hospital staff or police in providing information regarding C-L’s injuries.
The Mother was slow to get medical help for C-L.
The description of what happened in the weekend leading to the trip to the hospital was confusing and contradictory to other versions.
The Mother is still smoking even though the child has asthma.
The Mother’s current plan was that Coty F. (the father of her second child) would be a kind of co-parent for C-L but she originally denied she was seeing him, and then he was convicted of a crime that landed him in jail for a lengthy time.
Despite the Mother’s insistence that she will not be involved again with either the Father or Coty F. she sent messages to the Father for a time, trying to encourage him to keep involved with C-L, and she still visits Coty F. Despite their criminal activities and the Father’s lack of care giving skills, she says it is important that they both be involved in their respective child’s life.
The Mother still suffers from a passive personality and Dr. Ashbourne said his concerns were elevated and that she needs to learn alternative parenting skills. Her counselling at Catholic Family Services was mostly to deal with her own situation such as the court case and being involved with C.C.A.S.
It could take about a year to accomplish the things recommended in the parenting Capacity Assessment and the court has no jurisdiction to allow this.
The Father’s plan is lacking because he never attended court but he was reported to have been at this Mother’s wedding on April 6th, 2013.
Ms. Liscombe had the impression that Tracie S. was no longer interested in pursuing custody by February 2012.
The C.C.A.S. offered to have Tracie S. included in the P.C.A., but she declined.
Neither Tracie S. or Rick B. felt that supervision was needed for the Mother or Father and as such they did not see a risk in either of them caring for the child. They did say however that they would follow any court order regarding access or terms of supervision.
Tracie S. has numerous sources of stress in her life at the present time and caring for a special needs child would be too much for her.
It would be difficult for Tracie S. to deal with the Mother or the Father over access and it will likely end in future litigation and therefore more uncertainty for C-L.
Tracie S. had serious relationship problems in the past and both of her older two children have been in trouble with the law.
Tracie S. showed poor judgment in her choice of references, some of whom gave negative references. She was not approved for adoption or as a kinship provider.
The proposal that the Mother and Tracie S. can co-parent is without any basis or evidence that it could work.
The proposal by the Mother to have the child placed with the paternal grandmother for several months is just a way to dodge the timelines set out in Section 70 of the C.F.S.A.
The child deserves permanency.
[241] In her submissions on behalf of the Mother, Ms. Williams highlighted the positive parts of the Mother’s case and addressed some concerns. Included in her comments were the following:
The court must consider the least disruptive option according to Section 57 of the CFSA and in this case this is placement with the Mother or with the grandmother.
The Mother has shown some positive parenting skills. She attends all her visits and has gone to every medical appointment. She uses appropriate skills during visits.
The P.C.A. was only received shortly before trial and the Mother did then take steps to obtain counselling.
She is not in a relationship with anyone at present and although she visits Coty F. in jail, they will not be getting back together. She will inform the Society if there is a new boyfriend. She said she does not want to end up like her sister Debbie, putting her children last.
Dr. Ashbourne had no difficulty with her living with her brother Cory. She and Cory have adequate housing and furnishings.
No one has proven how the injuries were caused or that the Mother was in anyway responsible. There is a not a high degree of probability that C-L would suffer harm in the care of the Mother.
The Mother has had no problems with drugs or alcohol.
There is a strong bond between the Mother and child.
The child has made progress and was walking with braces as of trial.
The Mother did have the help of a Public Health Nurse when she had C-L and she did have a family doctor, and no one expressed alarm about the child’s head size or about her health in general.
She took steps to get counselling after she received the P.C.A.
No consideration has been given regarding the separation of C-L and her younger sister B, should C-L be made a Crown ward. Also there is no evidence that C-L is adoptable given her special needs.
The Mother took steps to go back to school and get counselling.
Counsel for the Mother reviewed the concerns and recommendations of Dr. Ashbourne as set out in his report (pages 46-50). It was suggested that the Mother is capable of addressing the remaining concerns and working with the Society. Ms. Williams pointed out that her proposal will be expensive for the C.C.A.S. in that she is suggesting that a parent support worker be assigned to the Mother. Dr. Ashbourne said the Mother works better with a hands on approach and she could benefit from positive role modeling, which she did not receive from her own mother. The main thing she would need to work on is her passivity. She has no serious cognitive limitations that prevent her from learning according to Dr. Ashbourne and can learn with the right contact and support.
An expert appointed by the court (Dr. Ashbourne) thought the Mother should be given a chance to parent.
There were many moves by the Mother in the past, but all were explained and were for understandable reasons. Her home situation now is stable. It is true that she changed her plan three times during the course of this file, but her current plan shows that progress has been made and she is moving forward. The first plan was that she was living an apartment by herself. Then her next plans was to parent with Coty F. in the home of her brother Russell. Then the plan was to parent with just Coty F. Now her plan is to parent on her own, but in a home with her brother Cory.
The Mother’s lawyer pointed out they she has moved away from people like Russell and Coty F. because of their criminal activity and that this is progress and should be commended.
A joint custody order between the Mother and the paternal grandmother will work as both of these women have said they will co-operate with the C.C.A.S. and they have each shown that they can do so. It could be a year before the child is reintegrated to the Mother but she will co-operate and work with the Society and Tracie S. in the meantime. The paternal grandmother has shown that she will do what is best for C-L. She has taken the necessary courses and there are no concerns about her parenting of her 12 year old son.
Given the bond between the Mother and child and the positive qualities of the Mother, it would be a travesty if the child was taken from the Mother for something she did not do. (This was in reference to the injuries).
[242] During submissions for the Father, his lawyer, Ms. Katz said that although her client did not attend any part of the trial, she did have his instructions and has spoken to him during the trial. His position is that it would be in the best interests of C-L to be placed in the care of his mother, Tracie S. Among the points made by Ms. Katz during the submissions, were the following:
When Tracie S. had home visits with C-L they went well and there were no concerns. The visits were only moved to the Agency due to allegations that were not verified. It is true that she missed many visits once they were at the Agency, but she had difficulty fitting them in, due to her father’s medical appointments and the lack of a second car. She and Rick B. live in Winona and it would have been difficult to travel to the Agency without a car.
Everyone who commented on her 12 year old son says he was a good and likeable child and there were no concerns about his care.
Any concerns about money issues have been negated. Tracie S. declared bankruptcy but that was largely due to her former husband’s debts. She has no debts now as a result. Rick B. has a good job and Tracie S. will either continue to receive her disability benefits or she will return to work and have a part-time or full-time income. The couple can manage their finances now and have a comfortable lifestyle.
Tracie S. co-operated with the C.C.A.S. She took the required courses and signed the necessary consents. The fact that her father (who lives in her home) did not sign a consent for a criminal records check should not be a concern. He was described as being stubborn and he is not well. It would be difficult to see how he could harm C-L.
It was acknowledged that the paternal grandmother had some difficult relationships in the past, and even abusive ones. However, she left an abusive relationship and is now in a stable positive and committed relationship. Everyone had good things to say about Rick B. and he was perceived by many to have a very positive relationship with his 12 year old step-son.
C-L has special needs but Tracie S. has shown she can manage well with her 12 year old who suffers from anxiety and has an Independent Education Plan. In addition, both Tracie S. and Rick B. are in the health care field and are capable of navigating the health care system for C-L.
Before coming to the conclusion that Tracie S. and Rick B. would not be approved for kinship care, Ms. Liscombe stated in her affidavit that the couple had numerous strengths. She said they demonstrated maturity and commitment and knowledge about health care. Some references were positive and she said they were able to follow through with expectations and communicate with her effectively.
Although there were negative references, counsel suggested that the court keep in mind that:
(a) Tracie’s son Richard withdrew his negative comments at trial and gave a positive endorsement.
(b) Wanda H. gave a very negative reference, but she was the subject of a negative complaint to the Society about her own care of foster children and the two women had a falling out.
(c) Laura F. acknowledged that she does not know Tracie S. well enough to comment on her parenting and does not like her much. She did however say that Tracie and her 12 year old son are close. This particular reference was given by telephone. Counsel said that the explanation of the names of Laura F. and Gordon F. were given as references by Tracie S. was understandable. She had to give the name of a couple who knew them both and both Laura F and Gordon F. were at their wedding.
The fact that Tracie S. has co-operated fully with the process and gets her father to his appointments and attends C-L’s appointments and worked full time in the past should negate any comments by any of the referrals that she was lazy.
The fact that Tracie S. has been on stress leave is not necessary a negative thing and is probably a good thing. Her family doctor wrote a letter that was very supportive. She is about to start some group counselling. Her employment allows for the leave and it makes her available full time.
There is no evidence of Tracie suffering from a significant stress load as alleged. The C.C.A.S. would be welcome to supervise for a time in any event. She will also co-operate in following any terms of supervision.
Although Tracie S. was not added as party she has actively sought placement of C-L for quite some time and it was known that she was not going to be a party.
Tracie S. is open to more than one option. She would be willing to accept a custody order pursuant to Section 57(1) of the C.F.S.A. and she would be willing to have the child placed with her and Rick B. pursuant to a supervision order. Either way, she sees her home as a permanent placement for C-L. She will follow orders regarding the biological parents, but it is not her preference to co-parent with the Mother. There is no history of her or Rick B. working with the Mother in a co-operative way in the past.
Tracie S. can offer a permanent family placement for C-L, and that is in the child’s best interests and follows the legislation regarding “the least disruptive alternate”.
ANALYSIS AND CONCLUSION
[243] This is not an easy decision because both proposed caregivers have many good points and each has a clear desire to provide C-L with a loving home. However, having considered all the evidence presented at trial, submissions from counsel, and the law, I am of the view that it is in the best interests of C-L that an order be made for Crown wardship without access. My reasons are set out below:
(i) It is true that Dr. Ashbourne recommended the return of C-L into her mother’s care. However, this was to be part of a process which could take up to a year. The youngest child B.B. was to be returned first on a gradual basis, with a parenting plan in place. Once B.B. was there for six months and stable full time adequate care had been given, then access to C-L would become unsupervised. When continued positive progress by the Mother and two children is evident, then a gradual reintegration of C-L into her mother’s care could begin.
There are two significant problems with this plan. Firstly, Dr. Ashbourne said in his report that he is less optimistic that this end result (both children in her care and doing well) will be achieved. He also said during the trial that he was doubtful it would work. He said he was more optimistic that the plan would work for B.B. who does not have any special needs. When asked by one of the lawyers if the entire process could take less than a year, he said this was possible, but that the plan could be derailed if rushed.
He pointed out that C-L requires very patient parenting, very skilled parents, and flexible parents who can be strong advocates with schools and other professionals. Dr. Ashbourne said the Mother does not have a lot of these qualities, but could learn by having hands on parenting and by having B.B. returned first.
Secondly, the suggested process would take much longer than the statutory timelines permit. Section 70 of the C.F.S.A. states that I cannot make an order for Society wardship if the child has been in care for more than 12 months. As of the conclusion of the trial C-L had been in care for nearly 22 months. This is more than the time limits even if I add the six month extension set out in paragraph 70(4).
When asked if he kept the timelines in mind Dr. Ashbourne pointed out that the process may have moved more quickly without the second pregnancy.
While the Parenting Capacity Assessment addressed some strengths on the part of the Mother (love of child, bonding with child, basic skills with feeding, affection, diapering etc) the assessor concluded that more time was needed for the Mother, and a gradual schedule of separate reintegration for both children was needed. Even with that he was doubtful it would all turn out with C-L being fully integrated. The plan is contrary to the statutory timelines. I must return the child now or make her a Crown ward.
While I could return the child to the Mother with terms of supervision, I note that this is not at all what the assessor was recommending. So in terms of the assessment, I have a report that the assessor doubts will work for C-L, and that is designed to contravene the statutory timelines by over a year.
(ii) I am mindful that the Mother has a proposal that would allow me to follow the spirit of Section 70 by sending the child to live with Tracie S. immediately and then work towards a reintegration to the Mother. The child would be immediately placed with Tracie S. subject to a supervision order with the C.C.A.S. This proposal requires certain things of the Mother and Tracie S. It also requires a Parent Support Worker to be assigned to the Mother, and a maximum 10 hours of semi supervised access per week and meeting at six week intervals to discuss expanding access with any concerns of the C.C.A.S. put in writing. After six months (or less if possible) access would likely be overnight and a gradual reintegration would be planned provided there were no further concerns.
This proposal of the Mother appears to be a way of avoiding Section 70 of the C.F.S.A. I am reminded of Justice Aston’s comments in C.A.S. of London and Middleton v. L.S. wherein in a plan was presented (somewhat late in the day) for a 3 year old child to go to a friend’s home until the mother in that case could take her. This is like a transition period. When the legislation was amended in 2000, the length of time children can be in foster care was significantly shortened in order to provide for permanency and long term planning for children. The following comments made by Justice Aston apply to the case at hand in my view:
“ If M cannot be safely returned to her mother within one year of her apprehension (and I find that to be the case), it follows that the long term plan of care would exclude a plan for her return to Ms. L-S. A supervision order should not be used as a mechanism by which to subvert the important distinction between temporary society wardship and permanent Crown wardship”.
The case before me is also similar to the one Justice Aston dealt with in that the proposal of the Mother to allow Tracie S. to have the child for several months while planning a reintegration was never part of the Mother’s original plan. Initially, she was opposed to having C-L placed with the paternal grandmother and her husband. I also note that this plan will lead to almost certain future litigation. When I asked Ms. Williams if this plan would likely lead to an application to vary she said, “yes – probably”. In addition there would be a Status Review. The present positions of the parties are that Tracie S. wants the permanent placement of C-L with her, and the Mother wants it to be eventually with her. Tracie S. is not proposing a gradual reintegration to the Mother.
At one point counsel for the Mother indicated that even if the child is placed permanently with the paternal grandmother that they will negotiate and work things out themselves and the child may still end up with the Mother.
The proposal of the Mother, (the one that is her first choice and outlined above) is not workable in my view or in C-L’s best interests. As I stated above, it appears to be a way of avoiding the time limitations set out in paragraph 70. It is destined to be met with continued litigation, and it is not a joint plan by both the Mother and Tracie S. This situation takes this case beyond the concerns in C.A.S. of London and Middleton v. L.S. in that the 2005 case involved a family friend who was offering placement knowing that a reintegration to the mother was hoped for. That is not the case before me. It is not in C-L’s best interests, in my view, to make an order that will involve litigation and uncertainty within the year. There is no evidence that the Mother and Tracie S. will be able to work together and negotiate a resolution that will involve a change in residence in six to twelve months.
(iii) The Mother’s alternative plan was that she and Tracie S. would have joint custody of C-L and that the primary residence would be with Tracie S. Access would be in the discretion of Tracie S. This plan also gives me great concern. As I said regarding the Mother’s primary proposal, there is no evidence that the two women will be able to make a joint custody order work. When asked what a joint custody order would be like, Tracie S. said it would be like a situation where the child spends a lot of time with both of them. There is no history between the women of working together. It does not appear that they ever see each other, except for C-L’s medical appointments.
I have no reason to believe that they would be able to make decisions well together and agree on terms of access.
(iv) The Mother indicated that she would co-operate with any order made. Regardless of her proposals she is hoping to one day have C-L in her care. I am mindful that she loves C-L, that they are bonded, that she can provide basic skills, that she co-operates with workers, that she has attended visits and medical appointments on time. This is what makes it a difficult decision. However, I am also aware that C-L suffered a serious brain injury while in the Mother’s care and it was deemed to be non accidental. She was slow in getting help for C-L and not initially forthcoming with the relevant officials regarding what happened. She was also not immediately forthcoming with the C.C.A.S. when she denied she had a boyfriend or that she could be pregnant. While she co-operated with workers, there were also concerns about her not following up with all the Occupational Therapy exercises and the Physiotherapy exercises. The Mother did take steps to go back to school in February 2013 but this was recommended more than once and as far back as January 2012. There was also no serious steps taken to obtain counselling. I know she said that she did take steps to get counselling once she received the P.C.A., but there was evidence that this was previously recommended by the C.C.A.S. workers a few times and it was also recommended by the Public Health Nurse. Even if I were to find that the steps to set up counselling and schooling were adequate, I am still subject with the length of time needed to for her to complete the counselling and deal with her passivity and relationship issues. Dr. Ashbourne was not recommending that C-L be returned now and I agree that the Mother is not ready yet.
While this matter was in progress the Mother had contact with Coty F. and she continues to visit him in jail. Despite her fear that A.S-A. may have caused C-L’s injuries, she continued for a time to try and keep him involved. She stated that she thinks both men should be involved in their respective daughter’s lives and that a part of her still loves them. These comments suggest that counselling on relationship issues is still needed. It did not appear from her testimony that she had any relationship counselling as of the trial.
It is unfortunate for the mother because she had poor parent modeling as a child, being one of her mother’s eleven children with ongoing child protection involvement. Nevertheless, I agree with Dr. Ashbourne that the full time care of C-L would be too difficult for this Mother at this time. C-L has special needs and she needs a caregiver who has tremendous skills and patience, and who will be constantly watching to make sure she does not hit her head and who will be able to advocate for her with many professional people. When the Mother had C-L in her care, there were times when she was left in a swing that did not buckle up properly and she fell on the floor. She was not even found immediately. The Mother’s teenage brothers found her on the floor in the morning while the Mother was asleep. There were concerns by the visit supervisors and workers about missed opportunities to engage with C-L and follow the therapy techniques she learned and the signing for communication.
More parent modeling and more time for counselling may help, but we have run out of time for C-L.
This case is different than the Provincial Court case from British Columbia that the Mother’s lawyer provided. In A.(R), Re, two court appointed experts felt that the parents could have the children back and no workers (including society workers) had anything negative to say about them. The case before me is quite different. There are concerns about the Mother being able to handle a special needs child on a full time basis. There are concerns about her two relationships that produced her two children, with men who were involved in criminal activity. There were concerns about the number of people involved in the child’s different homes making it impossible to determine how the injuries were caused. In addition, there was the opinion of the medical professionals that the injuries were non accidental, which was not necessarily the case in Re A.(R). If C-L were much younger and had been in care for much less time, I might be inclined to order something like what was recommended by Dr. Ashbourne. However, I must deal with C-L now because the trial for B.B is not for several more months, and we have run out of time to wait for a gradual increase in access, followed by a slow reintegration, all the while with counselling and parent modeling taking place.
(iv) Having decided that the Mother should not have the care of C-L. I must look at the proposal made regarding Tracie S. It is important to note that Dr. Ashbourne was not asked to consider Tracie S. and she was not a participant in the P.C.A., although she could have been. The proposal that Tracie S. have the care of the child was part of the Father’s plan. There were numerous positive things that came out during the trial about Tracie S. She testified in stages during the trial in order to accommodate other witnesses which meant that she testified on different days. She was always on time and presented herself in a courteous and calm manner. This process must have been difficult for her because she was not anticipating not being approved in the kinship assessment or that some of her references would be negative. Nevertheless, she has continued with her plan and clearly believes it is best for C-L. Some of the concerns expressed by referents do not seem valid to me. For example, I did not get the impression that finances would be a problem. I did not believe that there has been a history of drinking and partying to excess as the evidence did not support this. While Tracie S. has had poor relationships in the past with men who were abusive or absent fathers, or both, there did not appear to be any concerns about Rick B., who by all accounts is kind, supportive, and hard working. Most people agreed that her 12 year old son is well cared for.
However, I am of the view that C-L should not be placed with Tracie S. for the following reasons:
C-L is a special needs child. As Dr. Ashbourne said, “C-L will be a challenging child to parent for even the most skilled of parents who have a team approach to support each other and offer occasional respite”. At the present time Tracie S. has a tremendous amount of stressful matters to deal with which would make it difficult for her to care for C-L on a full time basis. These matters are as follows:
(a) Her father resides with her and is considered terminally ill with cancer. She will likely be increasingly involved in his care and she and Rick B. have both acknowledged that it has been an emotional time for her in dealing with the fact that he is ill and will die. We heard that he could live for some years more, but it is unknown.
(b) She is currently on stress leave from work and receives Long Term Disability Benefits for the stress. She was described as crying a lot (over her father etc) and unable to focus at work with her stressful job. Her family doctor, although supportive of Tracie S., signed the paper work needed for the disability. At the present time she has no plan to return to work.
(c) Although she says she is doing better, she described having panic attacks which can be due to being in a crowd or under stressful situations. She was due to start a ten week program to deal with anxiety as of the end of the trial.
(d) She is on medication for anxiety; depression and for helping her sleep.
(e) Dealing with her oldest son Richard sounds like it is stressful. Both Tracie S. and Rick B. acknowledged that they fight and it is a difficult relationship. While Richard is not around a lot, he is a member of the family, and he gave a very negative reference for his mother in the kinship assessment (which he later said was done out of spite). Tracie S. sometimes has to ask him to leave and he does leave but slams the door on the way out. Tracie S. said they sometimes fight like a couple of kids.
(f) Dealing with her son A.S-A., the Father herein, sounds as though it is stressful. He comes over from time to time and he and Tracie S. had a relationship with conflict. She has bailed him out of jail and also withdrawn the surety. He usually seeks accommodation at her home when he has been released from jail and he has also broken into her home and stolen things.
(g) Dealing with the Mother and the Father over access would likely be stressful. While Tracie S. says she is prepared to follow up on any court orders regarding access, it remains to be seen if she could handle difficult negotiations for increased access, or parents wanting to come to see C-L at inconvenient times, etc.
(h) Despite his clear commitment and support of this proposal, Rick B. works long hours and sometimes is out of town and would not be available to help a lot.
(i) Ms. Anis stated during submissions that, “it is not hard to imagine a situation where Tracie’s father is in need of help and while she is tending to him, C-L is demanding something and bangs her head and hurts herself, all of which causes a panic attack”. (I have paraphrased slightly). While this comment may seem unkind to Tracie S who clearly wants to do her best for C-L and her father, it raises a valid point about the amount of constant attention C-L will need. A fall or bump in the head for C-L could be much more serious than a similar bump to a child who has not had a previous brain injury.
(j) While the 12 year old son is described as a well behaved child, I note that he suffers from anxiety and has a special education plan. He will be going through the teenage years soon and there can be stress associated with this. There certainly was stress for Tracie S. regarding her two older sons as they grew older. One of the medical professionals said that C-L could face behavioural problems when she becomes a teenager.
(k) While Tracie S. seems certain she can handle this now it needs to be remembered that C-L will require numerous medical appointments, therapy exercises and will need to be constantly watched. This seems like a difficult task for someone already on stress leave from work, because she was having trouble focusing at work and dealing with her father’s issues.
(l) When the visits were removed from the home of Tracie S and placed in the Agency in the fall of 2012, there were few visits in the Agency. I appreciate that Tracie S. was without a car as the second car was sold and the proceeds were put towards the wedding. In addition, there were medical appointments for Tracie’s father and she was very busy planning the wedding. These explanations made sense, but it does make me wonder how she will handle a full time special needs child with all that will be required. Ms. Liscombe said that as February 2013 she believed Tracie S. and Rick B. were no longer interested. Clearly, this was not the case, but that impression was left and it is not compatible with the amount of time and attention C-L will need. I also am mindful that the SAFE Homestudy Report was available to the couple in late February but they took no steps to obtain a copy until the trial started.
(m) The references were of some concern. Wanda H. had a rather negative impression of Tracie S. and this cannot just be explained away by saying there was a falling out over the wedding and that Wanda H. had a complaint made about her as a foster mother. I did not hear from Wanda H. so her written comments are relevant to the extent that her name was given as a reference and a good reference was not provided.
Laura and Gordon F. clearly had a difficult time with this process and would have preferred not to have been involved in the first place. Not all of their comments were negative, especially when their oral testimony is considered. However, they too would have preferred to have not been involved and they said they never were asked to participate. Ultimately, they found it difficult to give a supportive endorsement of Tracie S., although they did not want to see C-L taken away from her family.
(n) The reference from Richard S. (the eldest son of Tracie S.) was of concern. It was very negative as described earlier in this judgment. He said he was mad at his mother because she would not let him ride a motor cycle she had. He just wanted to ride it around. He said it was because it was broken, but he could have fixed it. She says it was because it was uninsured. Either explanation seems valid and it was her motor cycle in any event.
He wants me to accept that he was so angry about the motor cycle that he said his mother has a really bad temper, she parties and drinks and acts like a child, she is moody and aggressive and she is never home and barely has enough time for his 12 year old brother (his grandmother babysits etc). Once he was on the witness stand he said he did not mean any of this and that he said all of these things out of anger. He said he has grown up a lot in the year since he wrote these things and now believes that Tracie S. could care for C-L very well. He is now supportive of her plan and he likes Rick B.
This entire change in my view has left me to consider the reference from Richard S. as unreliable. He could have been sincere when he retracted it all or he could have been honest the first time.
(o) The reference from the Father was positive but he did not attend court to promote his own position. When I asked Tracie S. why her son A.S-A. did not come to court, she said she did not know why and that she had encouraged him to come. She acknowledged that it was disappointing. According to Colleen Richardson, the Father told her in March 2012 that he was not speaking to his Mother and wanted nothing to do with her. Several days later he said he was trying to patch things up with her and said she would be a great caregiver for C-L. I cannot put any weight on his current positive reference since he was not willing to put it forward at court.
(p) The fact that Tracie S. was not ultimately approved as a kin care provider is also a factor, but most of the reasons for that have been given herein.
(q) If I were to place C-L with Tracie S., I would need to do it pursuant to a supervision order to make sure that she was handling everything satisfactorily on a full time basis. This would be necessary given the child’s needs and the fact that Tracie S. has only had her for short visits so far. If this placement broke down, it could greatly delay the child’s opportunity for placement.
(r) In closing, I am of the view that Tracie S.’s plans for C-L are unrealistic given the amount of stress in her life at present and the foreseeable future. The fact that some references were negative was also a factor especially since the referents said they were not all asked to participate. However, of all the references, the ones of the most concern were those of the paternal grandmother’s oldest two sons. Richard gave a reference that was totally unreliable. Her second son, the Father of C-L, would not put himself out to attend court. The only reason that placement with Tracie S. was even considered is that it was part of A.S-A’s plan. The fact that he refused to attend court, even once, during this trial to support his own plan causes me additional concern about this plan.
For all of the above reasons, I decline to make an order placing C-L in the custody or full time care of her grandmother.
(vi) It is clear that the Mother and the paternal grandmother would accept a placement that involves both of them in the alternative to an order for Crown wardship. However, having said that I do not believe either should have the child in their primary care, I do not need to deal any further with a joint plan. As I stated earlier, there is no evidence that the parties could work together jointly and the same concerns about each would still exist.
(vii) I believe my order follows the requirement of the legislation. I did not allow for a family placement and I understand the obligation to consider a family placement prior to making a Crown Wardship Order. However, I am only obliged to consider it, which I did. The C.C.A.S. conducted a kinship study and a considerable amount of time was spent during the trial on the issue of placing C-L with her grandmother.
Likewise, I understand the argument that C-L would want to still see her young half sister.
However, I am only being asked to make an order for C-L. I have to make an order that I deem to be in C-L’s best interests. The two girls have never lived together and they are young, so if they are separated on a permanent basis, it will not have the impact it would, with older children who remember being in the same home together.
C-L clearly has an emotional tie to her Mother, but this factor does not stand alone. I also have to consider the impact of delays on the child. If I was to plan for a reintegration that could take up to a year, I would be “placing the Mother’s potential progress over the child’s actual needs” as pointed out in C.A.S. of Hamilton v. A.M., as quoted earlier herein.
The same paragraph of the C.F.S.A. (paragraph 37(3)) requires me to consider family relationships, emotional ties, continuity, etc., also requires me to consider the effects of delay in the disposition of the case, the risk of harm, if a child is returned to the parent. Since I have indicated that I agree with Dr. Ashbourne that the Mother is not ready to have C-L returned to her then I have to conclude that there is a risk of harm, if the child is sent now. Further delays in the disposition of the case would be contrary to the time limits set out in the C.F.S.A., and might deprive the child of finding a permanent placement.
[244] I will not order access as this would be contrary to the provisions of section 59(2.1) of the C.F.S.A. A relationship between the Mother or Tracie S. and the child could be seen as beneficial and meaningful to the child, but I must also find that any access ordered will not impair the child’s future opportunities for adoption. Given the age of C-L (now 31 months) an order for access would likely impair a chance for adoption.
[245] Although I have not placed C-L with either the Mother or the paternal grandmother, it is important to note that this is a decision that applies to the child C-L who has special needs and who had been in care for about 22 months as of the trial. A different decision might be made at a future time regarding a different child and different circumstances.
Final Order to Issue
- There shall be an order for Crown wardshp without access of the child C-L. S. born January 30th, 2011.
McLaren, J.
Released: September 13, 2013
COURT FILE NO.: C1130/11
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Catholic Children’s Aid Society of Hamilton
Applicants
-and-
C.C. (the Mother)
And
A.S-A. (the Father)
Respondents
REASONS FOR JUDGMENT
The Honourable Madam Justice M.J. McLaren.
Released: September 13, 2013