ONTARIO
SUPERIOR COURT OF JUSTICE
**COURT FILE NO.:**385/11
DATE: January 29, 2013
BETWEEN:
Family and Children’s Services of Frontenac, Lennox and Addington Applicant
- and –
C.H.
Respondent
Ayana Hutchinson, for the Applicant
Douglas Haunts for the Respondent,
WARNING
This is a case under Part III — Child Protection, of the Child and Family Services Act, R.S.O. 1990, c. C-11 and is subject to subsections 45(8) and 76(11) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, R.S.O. 1990, c. C-11, which deals with the consequences of failure to comply with subsections 45(8) and 76(11), read as follows:
45(8) PROHIBITION: IDENTIFYING CHILD — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.
76(11) PUBLICATION — No person shall publish or make public information that has the effect of identifying a witness or a participant in a hearing, or a party to a hearing other than a society.
85(3) OFFENCES — A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
REASONS FOR DECISION
Preliminary Matters
[1] This trial was scheduled to commence on September 24, 2012, at 10:00 a.m. The Respondent mother, C.H. (“the mother”), did not attend. Her solicitor of record, Mr. Douglas R. Haunts (“Mr. Haunts”) was, however, in attendance. Mr. Haunts confirmed that his client was aware of the trial date and time.
[2] Out of an abundance of caution, the matter was stood down to allow inquiries to be made regarding the mother’s whereabouts.
[3] The matter was called back into Court at 12:15 p.m. The mother was paged with no response. There was some indication that she was at the Frontenac Mall during the morning hours when the trial was to commence. Further, there was some indication that she had a ride to the Court and that she would attend in short order. For reasons that were unclear at the time, the mother failed to attend.
[4] Ms. Hutchinson, for the Family and Children’s Services of Frontenac, Lennox and Addington (“the Society”), was prepared to proceed with the trial, all of her witnesses being present. Ms. Hutchinson contended that, in the mother’s absence, the matter should proceed as an uncontested trial, to which Mr. Haunts objected. Notwithstanding the objection, an Order was made for the matter to proceed as an uncontested trial.
[5] Ms. Hutchinson advised that an Agreed Statement of Facts was executed by the parties on September 26, 2011, finding the children; A.M.H., born […], 2008 and C.J.H. born […], 2010 (“the children”) in need of protection. Accordingly, Ms. Hutchinson contended that the issues for trial were essentially two-fold:
(i) Should the children be made Crown Wards with no access?; or
(ii) Should the children be returned to the mother’s care under a supervision Order?
[6] Ms. Hutchinson was part way through her opening statement when the Court was alerted to the fact that the mother had finally arrived.
[7] Mr. Haunts was given an opportunity to meet with his client to review matters and seek instructions. Upon returning to the court room at approximately 12:45 p.m., Mr. Haunts advised that his client wished to proceed with the trial. Accordingly, the earlier Order for an uncontested trial was set aside and the trial proceeded as originally planned.
BACKGROUND
[8] The mother is the biological mother of the children. Mr. A.L. is the biological father of the child A.H. He is not a parent within the meaning of the CFSA. Mr. E.C. is the biological father of the child C.H. He is not a parent within the meaning of the CFSA.
[9] On April 28, 2010, the mother contacted the Society advising that she was feeling overwhelmed and that she could not provide the children with the necessities of life. Specifically, she could not access the food bank as she had already done so that month. The mother requested help from the Society and received help by way of vouchers, referrals to public health, Healthy Baby Healthy Children and support from the family service worker assigned to her file. Further, the Society worked with the mother in an attempt to support her engagement with other community support services.
[10] The children were subsequently apprehended on June 23, 2011, at the Kingston General Hospital while the mother was in the emergency department complaining of ankle pain. There is no quarrel that the mother created a disturbance as a result of what she determined to be in adequate care. The hospital staff became concerned to the point that they called the Society, particularly given the mother’s conduct in the presence of the children.
[11] On June 28, 2011, a temporary Order was made placing the children in the temporary care and custody of the Society, subject to access in the discretion of the Society.
[12] On September 26, 2011, the parties signed the aforementioned Statement of Agreed Facts consenting to a protection finding and a parenting capacity assessment under section 54 of the CFSA.
[13] Thereafter, the mother brought a motion for the return of the children to her care. The temporary care and custody hearing was held on October 13, 2011. The mother’s motion was dismissed and the children were ordered to remain in care, pending trial.
[14] The mother was previously involved with the Society in relation to her son, J.T., for the period of August 14, 2004 to November 8, 2007. Admittedly, the mother was using methamphetamines while she was providing care for her son. Thereafter, the mother was incarcerated on a number of occasions for breach of probation as well as a charge of assault with a weapon, the victim of the assault being her son’s biological father.
[15] The Society closed its file when the son from the earlier relationship began living with his father. There was additional progress in the mother’s circumstances in that she stopped using illicit substances and began to follow through with her probation conditions, which resulted in the mother eventually having overnight access visits with her son.
[16] The mother’s self admitted use and abuse of marijuana, as well as her abuse of prescription medications for pain relief, causes the Society great concern.
[17] Moreover, the mother has a pattern of being unable to properly budget her funds, despite support from the Society, in order to ensure safe sleeping arrangements for the children. Further, there have been incidents of inadequate supervision of the children by the mother.
[18] The Society is also concerned with the mother’s inability to cope with routine challenges of day to day living and parenting, her inability to manage her anxiety and depression, as well as her difficulties with emotional self-regulation.
[19] The Society’s Amended Protection Application dated March 26, 2012, seeks an Order finding the children in need of protection pursuant to section 37(2)(b)(ii) and 37(2)(g) of the Child and Family Services Act (“CFSA”) and an Order making the children Crown Wards, with no access.
[20] The Society contends that the mother has exhibited a failure to fully utilize or to benefit from numerous available resources, either medical or social services, including: direct service provided or available in-home by CAS workers, Public Health nurses, Public Health Unit’s social services to assist with budgeting, Better Beginnings to assist with parenting skills, Ontario Works the “Right from the Start” program, Dr. Sangster-Gibson the family physician for assistance with her mental health and appropriate medication to manage her pain, the child development centre of the Hotel Dieu Hospital and the Elizabeth Fry Society.
[21] There is no quarrel the mother has exhibited extreme hostility toward the Society, coupled with a self confessed inability to work with the Society.
[22] It is against this general background that the matter came on for trial.
ISSUE
[23] Given the prior finding that the children are in need of protection, should the children be made Crown Wards pursuant to section 57(1)3 of the CFSA or returned to the mother’s care under a supervision Order, as the least intrusive Order that is in the children’s best interest?
EVIDENCE AND ANALYSIS
[24] Subsequent to the apprehension, the family services worker was changed as it was apparent that the mother was resistant to working with Mr. Josh Roy (“Mr. Roy”). Unfortunately the change did not correct the situation. Rather, the mother continued in her refusal to work with the Society.
[25] Moreover, the mother persisted in her attempts to contact Mr. Roy by leaving voicemail messages for him that were both threatening and abusive.
[26] As evidence of the mother’s refusal to work cooperatively with the Society, she would, from time to time, engage in unprovoked outbursts, would threaten to sue the Society, have individual workers fired, and “make sure they never had children”. In the circumstances, it was necessary for the Society to contact police to have the mother removed from the Society property on more than one occasion.
[27] The mother asserted that she would not work with the Society because, in her view, the children were being beaten, burnt, raped and tortured while in the Society’s care. During the trial, the mother indicated, on more than one occasion, that she still holds these beliefs. Further, the mother called the police on at least two occasions to complain of criminal acts allegedly perpetrated by the Society. The mother contacted the mayor of Kingston to make the same complaints. Finally, the mother picketed the Society’s offices.
[28] The mother was not receptive to working with the Society in terms of signing consents for the Society to be able to contact Frontenac Community Health Services, nor was she initially prepared to subject herself to drug testing.
[29] The mother finally acceded to the request for a drug screen in respect of which she tested positive for methamphetamines and cannabinoids. Thereafter, the mother refused to submit to any further drug testing.
[30] The mother refused to sign an agreement with the Society regarding the rules and guidelines for supervised access. Visits with the children were, however, allowed to occur, despite her refusal to sign the agreement, with the expectation that the access would be child focused. That was not always the case. On more than one occasion the mother continued to express derision toward the Society during access visits and in the presence of the children. The mother would become angry and upset during or immediately after visits, which in turn posed a risk to the children, the staff and other visitors to the building.
[31] The mother did agree to attend Options for Change, through Frontenac Community Mental Health Assessment services. She signed consents to disclose information from the Frontenac Community Mental Health assessment services for a Dr. Hillen and Ms. Janet Pearse (counselor). The mother eventually attended for an assessment with Dr. Hillen. Dr. Hillen concluded that the mother has “borderline personality disorder”. As a result of the diagnosis, there was an expectation that the mother would engage in counseling with Ms. Pearse. On August 9, 2012, the Society received information that the mother had missed six appointments for counseling and had not had any contact with the Frontenac Mental Health Services since June 6, 2012.
[32] The mother initially refused to participate in supervised access visits with the children. Access visits eventually commenced on July 13, 2011. During the first visit, the mother became very upset and began sobbing and yelling in front of the children. The mother removed herself from the room, but continued to yell and sob in the reception area. Thereafter, the mother did not exercise any access with the children between July 14, 2011 and October 24, 2011, despite the fact that she was entitled to access every Monday and Wednesday for two hours for each visit.
[33] Upon the resumption of access in October 2011, the mother did not consistently exercise access. The mother cancelled ten visits between January 23, 2012 and June 18, 2012. The mother would often cite health issues as the reason why she was not attending access visits.
[34] On occasion, the mother presented with odd behaviour during access visits. For example, she would sit staring straight ahead, without moving or speaking, for ten to twenty seconds at a time.
[35] Following a pattern of missed access visits, the mother attended on August 13, 2012 and met with Ms. Monk and Ms. Kay in order to discuss ongoing access visits. Although the mother was initially pleasant, she soon began to yell, swear and visibly shake. As a result, the workers were not able to communicate with the mother.
[36] The aforementioned evidence is consistent with similar observations made of the mother during the trial. To recall, the mother failed to appear at the start of trial, with no reasonable explanation for her absence. When she did attend, the mother commented on more than one occasion that she believes Mr. Roy is engaged in a scheme to kidnap the children and keep them for himself.
[37] Again, the mother reiterated throughout the trial her fervent belief that the children have been tortured, molested, raped, beaten and burned while in the care of the Society. Further, the mother contends that the children’s bruises were mitigated by the Society placing them in “ice-baths”, in order to make the bruises look old.
[38] There is no quarrel that a kin placement is not available. In the mother’s own words, she has no one from her family to look to for support.
[39] The mother made it clear, on a number of occasions throughout the trial, that she is “done working with the Society”.
[40] It appears as though the mother is at odds with most everyone. That is to say, her conflict is not restricted to the Society. There was the example of her violent outburst at the KGH emergency department. She is admittedly fighting with the City transit system in respect of a number of issues, not the least of which is her difficulty taking strollers on City buses. Moreover, at the start of the second day of trial (or shortly thereafter), the mother asked if she could fire her lawyer. As a result, Mr. Haunts asked to be removed as the solicitor of record, citing an obvious breakdown in communication between himself and his client. Mr. Haunts was allowed to be removed from the record, at which time the mother took over carriage of her own case.
[41] The mother contended that the children were happy, healthy and loved while they were in her care.
[42] The mother asserted that she always provided a clean home with sufficient food and the necessities of life for the children, which is contradicted by her admitted request of the Society on April 28, 2010. The mother contended that the children were being taken from her by the Society simply because she “cried at a hospital”, which is a gross mischaracterization of her conduct that day.
[43] The mother further contended that, with the help of the Elizabeth Fry Society, she was doing her best to be a mature and productive adult in this community.
[44] The mother asserts that the Society has caused more harm to the children than what they were subjected to while they were in her care. To be more specific, the mother contends the children were never beaten, burned or sexually abused while they were in her care, which, of course, she fervently believes to be the case while the children have been in the Society’s care.
[45] The mother concluded that the Society has “messed up her babies” and that now she should be the one to help them. To that end, the mother said: “I don’t know why people don’t see what I see. Maybe I am delusional”.
SUMMARY
[46] The mother contends that the children should be returned to her care pursuant to a Supervision Order with conditions. In that case, the mother asserts that she is prepared to abide by conditions. Sadly, that has not been the situation in the past.
[47] The mother adamantly expressed her intentions not to work with the Society throughout these proceedings. The mother affirmed that position at trial when she said I am “done working with the Society”. At the conclusion of the trial, she suddenly resiled from that position by agreeing to abide by conditions imposed in a Supervision Order. The mother’s tendency to vacillate between positions is consistent with the observations of Society workers and those made by the Court throughout the trial.
[48] That the mother should be inconsistent in both her approach to parenting and her interaction with community resources should be of no surprise, particularly given Dr. Hillen’s assessment that she has borderline personality disorder. Moreover, her failure to connect with Frontenac Community Mental Health assessment services in the months leading up to the trial could only have exacerbated her situation. Finally, there is no question that her continued use and abuse of illicit substances has served to aggravate her mental health issues.
[49] The Court is left with the impression that when the mother is well, she can be a good and loving parent. However, when the mother is suffering from mental health issues, which appears to be more often than not, she is simply unable to take care of herself, let alone parent and provide for the children.
[50] The mother continues to believe that the Society, and in particular Mr. Roy, kidnapped her children for a purpose that is too bizarre to even contemplate.
[51] The mother continues to assert, as she did throughout the trial, that the children are being tortured, raped, beaten and burned, while in the care of the Society.
[52] While these beliefs may be painfully real to the mother, there is not a scintilla of evidence to support any of the allegations made against the Society generally, and in particular Mr. Roy. Rather, there is evidence that the mother failed to fully utilize, if at all, numerous resources made available to her by the Society, in hopes that she could continue to parent the children.
[53] It is unfortunate that the mother, by her own conduct, has poisoned the relationship with the Society to the extent that she cannot work with the Society, which she affirms she is no longer prepared to do.
[54] By the mother’s own evidence, a kin placement is not available. The mother alleges that her father abused her physically and that her mother is not in a position to care for the children.
[55] The mother’s refusal to participate in access visits does not bode well for access in the future.
[56] In child protection proceedings there is an overriding statutory imperative to commence permanency planning for children in a timely fashion.[^1]
[57] The Society has begun its permanency planning for these children. The children will be placed in the same home for purposes of adoption.
FINDING
[58] The Court could return the children to the mother’s care subject to a Supervision Order, however, for the reasons set out above, that would not be in the best interests of the children, particularly given the mother’s demonstrated inability to work with service providers and her debilitating mental health issues.
[59] The Court is of the view, therefore, that the only alternative to adequately protect the children is an Order for Crown Wardship, without access, for purposes of adoption.
January 29, 2013 ______________________________
Abrams, J.
Lennox and Addington v.. 2013 ONSC 642, 2013 ONSC642
COURT FILE NO.:385/11
DATE HEARD: DATE: January 25, 2013
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Family and Children’s Services of Frontenac,
Lennox and Addington
Applicant
- and –
C.H.
Respondent
BEFORE: JUSTICE BRIAN W. ABRAMS
HEARD: SEPTEMBER 25, 2012
REASONS FOR DECISION
Abrams J.
Released: January 29, 2013
[^1]: CAS Ottawa v. C.(S)., 2003 67754 (ON SC), 2003, Carswell Ont 9373 at para. 32 and CAS of the County of Lanark v. M.(A), [2005] WDFL 4001 (SCJ) at para. 12