CITATION: The Children’s Aid Society of Ottawa v. K.F., 2013 ONSC 7207
COURT FILE NO.: FC-11-1819
DATE: 2013/11/21
ONTARIO
SUPERIOR COURT OF JUSTICE
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT
IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990
AND IN THE MATTER OF L.L., born [...], 2010 and J.L., born [...], 2012
BETWEEN:
The Children’s Aid Society of Ottawa
Applicant
– and –
K.F., J.L., L.F. and L.F.(2)
Respondents
Marguerite Lewis, for the Applicant Society
Karen Leef, for the Respondent Mother, K.F.
Ezioma O. Nnorom, for the Respondent
Maternal Grandparents, L.F. and L.F.(2)
HEARD: September 23, 24, 25 and October 21, 22 and 23, 2013
REASONS FOR JUDGMENT
J. Mackinnon J
[1] This is a status review application in which the Children’s Aid Society (“CAS”) seeks an order for Crown wardship for the purpose of adoption. The children are L.L., age three, and J.L., age 21 months. Competing plans are proposed by the mother, K.F., and by the maternal grandparents, L.F. and L.F.(2). The mother seeks the return of the children to her. Alternatively, she supports the grandparents as caregivers for the children. Or, if the court does not return the children to her or her parents, she seeks a four month Society wardship order to allow additional time to prepare for the return of the children. The grandparents seek placement of the children with themselves, under either a supervision order or custody order.
[2] The father was served with the application but did not deliver an answer or plan of care. Nor did he participate in any way in the case.
Brief Overview
[3] Both children resided with their grandparents from birth, with the exception of a brief period when J.L. was in his mother’s care at St. Mary’s Home, until their apprehension on February 4, 2013. Since then, they have resided in foster care. From time to time, the mother also resided in her parental home; however, the grandparents were always the primary caregivers. The mother and father had a troubled relationship. The father was physically abusive to the mother on a number of occasions. He seemed to abuse substances, have an anger problem and a lack of stability in his life. The mother did not seem willing or able to completely sever her relationship with him. At times, she also had a transient lifestyle and was inconsistent in her visitation with the children. At other times, she demonstrated focus and commitment to parenting her children.
[4] Up until the apprehension in February 2013, the CAS was moving in the direction of approving a permanent placement with the grandparents. The Society’s status review application issued on January 18, 2013 sought a three month supervision order to the grandparents. The application stated, “While there are outstanding issues necessary for the Kinship assessment to be completed, and the maternal grandparents have demonstrated some motivation in addressing these issues, both children present as bonded to their caregivers.” The application went on to say that the CAS was no longer prepared to consider a plan involving the mother as primary caregiver, but was requesting the three month extension in order to assess the grandparents’ ability to provide safe and stable long term care to the children.
[5] Two of the conditions of the Supervision Order were that the grandparents not allow the mother any access to the children without the prior approval of the CAS and that they notify the CAS immediately of any changes at the family home. The apprehension occurred when the CAS learned that a third party had been living in the home without its prior knowledge or approval and that the mother had also been in the home, including when at least one of the children was there. At the time of the apprehension, the grandmother became hysterical and threatened to suicide if the children were removed, and then pushed L.L. towards the CAS worker, saying “take him, take him.” She also seemed to justify events by stating that the Order was unfairly restrictive on her daughter’s access.
[6] This application initially came on for trial in April 2013. At that time, the parties negotiated a consent adjournment on terms. The family was presenting the mother’s plan as the primary plan. The focus of the agreement was to allow her mother the period between the April and September trial dates to try to demonstrate that she was able to assume full-time care of the children. In that case, the grandparents would seek access to the children. If the mother was unable to provide permanent care for the children, the grandparents would propose their own plan to do so.
[7] The conditions of the adjournment required the mother to attend for a hair follicle drug test, to attend an addictions assessment and follow any recommendations made for treatment, to refrain from the use of alcohol and illegal drugs and to use her best efforts to obtain independent accommodation. She was to reside in a women’s shelter in the meantime. Other conditions required her to complete anger management counselling, counselling for victims of violence against women and family counselling with her parents.
[8] The mother was to have no contact whatsoever with the children’s father.
[9] The mother was to attend her access with the children three times weekly unless she had a doctor’s note or evidence of a verifiable emergency. She was also to sign up for a parenting course.
[10] Conditions were also imposed upon the grandparents. The conditions placed on the grandparents were essentially to assist them in addressing the reservations noted in the Kinship assessment, to attend counselling with their daughter and take a parenting course.
[11] Events during the period of adjournment were such that no resolution was achieved.
Positions of the Parties
The CAS
[12] The CAS submits that Crown wardship and adoption is in the best interests of the children. Although the children have been in care less than one year, the CAS has been involved with the family for nearly three years. The CAS says the statutory timeline of one year should not be regarded as something the parents are entitled to make use of in all cases, rather, as a maximum beyond which the children should not remain without a permanent placement.
[13] The Society does not support a plan to place the children with their mother. She has not obtained independent accommodation. She is back in residence with her parents. She has had contact with the children’s father off and on except for during his incarceration. His release date is not in evidence. The mother used cocaine, ecstasy, marijuana and alcohol during the months while the trial was adjourned. She did not exercise all of her access to the children during this time.
[14] The CAS says the mother’s proposal to move to Petawawa to reside with her cousin lacks detail and planning. The cousin appears generous and responsible but has not seen the mother for over one year. She has had very little contact with the children. She works full-time and is not proposing to supervise the mother with the children. The mother says she will return to school at the nearest community college in Pembroke, which is admirable from the mother’s point of view but creates logistic and childcare issues not yet addressed.
[15] The CAS opposes the grandparents’ plan because they did not comply with the most recent supervision order. The CAS says that despite the grandparents’ undoubted love for the children, they have been unable to put the children’s needs ahead of those of their own daughter. The grandmother is the key to their plan yet she needs to return to work in order to support the family financially.
[16] The CAS also points to L.L.’s tooth decay and need for oral surgery as a poor reflection on the grandparents physical care. Several examples were described of the very high activity level of the children and difficulties the grandparents had in physically keeping up with them.
[17] The CAS opposes a team plan involving the mother and the grandparents. Despite the high level of conflict in the home, the parties have only attended one family counselling session. The view that everything is much better in the home now ignores the fact that the children are not living there. The grandmother’s statement that her daughter is totally different when the father is not around is unrealistic.
[18] The CAS acknowledges that it was their intention in January 2013 to put a teaching social worker into the home to assist the grandparents to acquire the additional skills needed to handle the two active children with their individual needs. This did not happen because the children were apprehended. It is too late in the day to try this now, says the CAS, and the outcome too unpredictable to keep the children on hold for the few remaining months between now and when the twelve month timeline comes to an end.
The Mother
[19] The mother has put forward a series of plans for the court to consider. First, she asks for the children to be placed with her under a supervision order on the basis that she would live with her parents, or in a shelter, or with her cousin in Petawawa.
[20] Second, she seeks a supervision order to her parents that would allow her to live with them and the children. Alternatively, the children could be placed with her parents, she would move to Petawawa for a year or two to get her life together, and would only exercise access to the children as approved by the CAS.
[21] Third, she seeks a short order for Society wardship to enable herself or her parents to be ready to receive the children.
[22] Finally, if the order is for Crown wardship, she seeks an order for access to the children for herself and for her parents.
The Grandparents
[23] The grandparents adopt the submissions made on behalf of the mother. In addition, they say they have been unwavering in their commitment to the children. Both children are bonded to them and have spent the vast majority of their lives with them. The grandparents say that there were only two issues outstanding from the Kinship Assessment and they have completed both of them. They have always cooperated with the CAS and will continue to do so. They acknowledge some difficulty in setting boundaries for their daughter, but note that if she moves to Petawawa, this will be a much diminished concern.
[24] The grandparents deny breaching the previous Supervision Order. They concede that a third party (Chelsea) was living in their home temporarily but deny their daughter was. They explain the grandmother’s statements and actions on the day of apprehension as attributable to confusion arising from the intensely emotional situation.
[25] Both grandparents maintain they have good enough physical health and stamina to parent these two children and that they have demonstrated the ability to do so to acceptable community standards.
Discussion of the Mother’s Plans
[26] The mother is 21 years of age. She has completed high school. She would like to attend community college to obtain her nursing degree. She has completed a parenting course and anger management counselling. She has attended seven or eight sessions with a counsellor to address partner violence issues. She has had some sessions recently at Wabano Centre for addictions counselling. She and her parents attended one family counselling session together.
[27] The mother is routinely affectionate with the children during visits. The children greet her with open arms. She is well able to keep up with them. She can demonstrate techniques learned in parenting or attachment classes. She brings appropriate snacks or lunches for the children. She is pleasant with the CAS staff and is agreeable to their suggestions. The mother is calm in the face of difficult child behaviours. She praises the children and can soothe them.
[28] She has attended several appointments with the children, including for speech therapy, dental care and immunizations.
[29] The essential problem with the mother`s access is her inconsistency. She had gone almost seven months without seeing the children from August 2012 to March 2013. She explained this by saying that she felt she had to get her life back in order to have visits. She testified the children were happy to see her again. She said, “I guess they still knew I was their mother.”
[30] After the April adjournment, the mother was regular with access until mid-July. In June, the social worker was very happy with the mother’s motivation and observed that she was trying very hard. She had located a shelter in which to reside and had commenced and even completed some of the programming the consent Order required of her. In July, the mother reported to the worker that she had a single relapse with cocaine and marijuana. The mother was very upset with herself and attributed the relapse to the fact she had spent some time with friends who were a bad influence on her.
[31] In mid-July, she missed two visits without explanation. The terms of the consent Order stipulated that in these circumstances the mother would have to meet with the CAS to review the schedule and her ability to attend access. The mother acknowledged it took her a while to take this step because she knew she would hear horrible things about herself, so she thought, what is the point? Then she would see the social worker, resume access, miss another visit, access would be put on hold again and she felt she was going in circles.
[32] The mother was ill in August with a gastrointestinal problem. She missed two or three visits on this account. Then, she did not attend access between August 20 and the week of September 16. She missed her August 21 visit. Although offered several appointments to do so, she did not meet with her social worker for almost one month.
[33] One explanation the mother gave for missing a visit in September was that she set her alarm for 8:00 a.m. to call the CAS to confirm she was coming but then fell back asleep.
[34] Another explanation given was related to drug use. The mother said she started using hard drugs during the summer of 2013 to take away the pain of missing a visit with the children or of missing them at the end of a visit. She described the pain this way: “if you have your child ripped out of your arms and they are upset and you are upset and other parents have their children so why don’t [I]?”
[35] Shortly after signing the consent Order for adjournment, the social worker asked the mother to complete a urine screen. She refused. The date for the hair follicle test was August 19, but the mother did not show up. The test was rescheduled for September 17. The hair follicle test showed positive for MDMA, its metabolic MDA, cocaine, its metabolites benzoylecgonine and cocaethylene, and the marijuana metabolite, carboxy-THC. The conclusion from the results was that the mother had used ecstasy at least six times per month for the three month period tested (June/July to August/September). The concentration of cocaine and its metabolites suggested sporadic use of it at least four times per month. The presence of cocaethylene indicates that she also drank alcohol since it can only form inside the body if both alcohol and cocaine are present. The hair also tested positive for marijuana in concentrations suggesting regular and frequent use. In the most recent segment, this concentration increased significantly.
[36] The mother agreed the hair follicle test was accurate as to her drug and alcohol use. She did not take responsibility for her drug use. She suggested it was not a self-motivated choice where she went out and sought drugs. Rather, she would be with friends and their drugs would be there in front of her, so she took them. She also stated, “I don’t need drugs if I have my kids.”
[37] My finding is that the mother’s inconsistent exercise of access, her drug use over this specific period of time, and her rationalizations for both, show her immaturity and inability to take responsibility for her own actions. It is unrealistic for her to expect a court to place her children with her at this time having regard to this track record over what she might realistically have regarded as a “last chance scenario” during the adjournment of the trial from April to September. I concluded from her comment that she would go to Petawawa even without the children for a year or two to get her life together that, in her heart of hearts, she knows this.
[38] The mother also has difficulty distancing herself from the children’s father. She admits to “running into him” a few times and pausing to chat with him for fifteen minutes or so despite the prohibition in the court Order. She felt sorry for him and saw no harm in it since the children were not there. In addition, she explained that one reason she spoke to him is that he is the closest thing she has to her children and she misses them. She says, if she had them back, she would have no problem staying away from him. The mother also thought that, by moving to Petawawa, she would no longer run into him.
[39] There is a discrepancy between the testimony of the mother and the grandmother with respect to the nature of the relationship between the mother and father over the period of adjournment. It seems the grandmother thought that her daughter was still involved with the children’s father and reported her suspicions to the social worker. The social worker asked the mother, who denied seeing him. The social worker had a receipt for ten dollars given to the mother by the detention centre where the father was incarcerated. She confronted the mother with the receipt. The mother replied that she had not seen him on that occasion. She admitted she had taken him the money because no one else would. She also testified that she had thought that going to the detention centre and leaving the ten dollars for him would give her closure so she could move on with her life. I found this difficult to understand.
[40] The mother was then confronted with the existence of a Police Occurrence Report describing a heated argument between her and the father at a bus stop. She then admitted they had run into each other on that occasion. She disagreed with the accuracy of some of the contents of the police report. The report was not in evidence. I concluded that the mother was less than forthcoming about her true feelings and her contact with this man.
[41] Explanations given by the mother for other non-compliance with the court Order were similar. For example, while she was living in the shelter, she was not to spend any overnights elsewhere without prior approval of the CAS. This term spoke to the mother’s history of transience. Nonetheless, she did spend her weekends at her parents’ house without notifying the CAS. Her testimony was that it was hard living with sixteen other women. When it came to light that she was spending more of her time at her parents, she told the CAS social worker she was leaving the shelter because it bothered her that most of the other mothers there had their children with them.
[42] In terms of obtaining her own living accommodation, it is admittedly very difficult to obtain public housing. Even acknowledging this, the mother’s evidence at trial was that she could move into a room at a friend’s apartment in Ottawa for November 1, or, she would move to Petawawa for September 1, 2014 but could move there in a day, if necessary. The point is that she had not actually done either, rather is still living with her parents.
[43] The reason why the CAS does not support the mother living with her parents is that there have been many arguments and disagreements between mother and grandmother. Family counselling may have helped, but one session on its own is not likely to make a significant impact. The mother testified that a lot of the conflicts between them were related to the CAS and to her relationship with the children’s father, of which her parents disapproved.
[44] The common theme is that an extraneous source is or was causing the problems, and noncompliance with terms of an Order she agreed to can be explained away by circumstances as they arose.
[45] In order to extend the mother another opportunity to prepare for full-time parenting of these children, a court would have required as a minimum recognition of her own responsibilities and compliance with the terms of the Order she negotiated and consented to in April 2013.
[46] Having said that, I do think the idea of moving to Petawawa to live with her cousin is a good one. The change in environment might help the mother break her old habits of transience, drug use and shifting responsibility on to others, especially on to her parents. Her cousin is not going to look after her or tolerate immature or illegal behaviours. The mother could attend community college in Pembroke and complete her nursing diploma. This is an opportunity for her to, as she says, turn her life around. She needs to do that before she can successfully parent children.
Discussion of the Grandparents’ Plan
[47] There is no doubt about the grandparents love for and commitment to the children. L.L. lived with them from birth until February 2013. J.L. lived with them from age six weeks until February 2013. Both children were meeting their milestones in June 2012. In November 2012, the social worker wrote, “the kin placement continues to be stabilizing and permanency seems more and more possible”.
[48] The children were still well in February 2013 with three provisos with respect to L.L. to which I shall return later. The grandparents have attended all of their access visits. In fact, they have also exercised most of their daughter’s access during the times when she has not done so. They are always on time. The children are always glad to see them. The grandparents are receptive to advice from the CAS. For example, they have modified the type and quantity of food they bring for the children to eat at visits. There was some suggestion that, at times, the grandparents may be slow to incorporate advice or need to be reminded at subsequent visits.
[49] The grandmother has taken a parenting course, as required of her by the consent terms of adjournment of the trial.
[50] There are some legitimate concerns arising from the grandparents’ ages and health. They are 59 and 61 years of age. The grandfather suffers from chronic obstructive pulmonary disease. He uses an inhaler and medications. He has bipolar disorder and is under the care of a psychiatrist but takes his medications and does not experience mood swings. One of the outstanding requirements of the Kinship assessment was for him to provide a current mental health assessment. After some delays, this was provided. The grandfather has been observed to be out of breath and fatigued at some points during access visits. He receives ODSP, CPP disability and also works part-time as a security commissionaire.
[51] The grandmother has high blood pressure. She has also been observed during access to have some difficulties keeping up with the children from a physical standpoint. One of the social workers told the grandparents that, since they can’t outrun the children, they will need to outsmart them.
[52] Their son, age 35, also resides in the grandparents’ home. He suffers from an anxiety disorder and is schizophrenic. He is treated for his illnesses, but only infrequently leaves the home. He occupies the basement room and seems to spend much of his time there. One of the outstanding requirements of the Kinship assessment was to obtain his historical criminal records check and finger printing. This was provided after much confusion and delay.
[53] The physical concerns are also evident when the grandparents will sit and watch a play activity rather than standing right beside the child in case physical intervention is needed, e.g. on a play structure. Or they will sit and give verbal cues rather than to actually get up and go after the child if the child is heading away from a safe area. On one occasion, the grandmother did run after L.L. but struggled and fell. On another occasion, she was briefly alone with him and he “escaped” to another floor in the building before being located.
[54] On both occasions when L.L. actually “got away”; the children were with only one, not both, of the grandparents.
[55] It was apparent to me that the grandparents tried to take a team approach to parenting these children, as much as possible. The grandmother described a typical day in which one would take L.L. to daycare and the other stay home with J.L. Then they would both take the younger child to daycare. Pickups were done together as were most outings and trips to the park. My impression was that the activity level of the children is quite high and that the presence of both grandparents most of the time was important to their ability to provide safe care.
[56] This is an important factor because the grandmother is looking for work. She worked previously as a personal support worker. The grandparents say they can get by on their current sources of income, but I inferred that the reason she would return to work was financial. One of the requirements of the Kinship assessment was to address financial issues. The grandmother did attend financial counselling and was given budgeting advice which she follows and finds helpful. Their son contributes $500 per month to the family expenses, which is also an important source of income for them.
[57] As of January 2013, the daycare would no longer keep L.L. He was too rough with the other children. The grandparents had been alerted to this earlier by the daycare provider. He has also been rough with J.L. at home. And some observations of rough play with other children have been made during community visits. I find the grandparents were having difficulty controlling L.L.’s behaviour.
[58] In addition, in late 2012 or early 2013, concerns emerged with his speech development. He was referred for speech therapy. After some delays, the grandmother got him to the assessment and took the follow-up steps recommended to assist L.L. in this regard.
[59] Immediately after the apprehension in February 2013, the social worker noticed L.L. had very poor oral hygiene. She arranged an urgent referral. He had several rotting teeth that would need to be removed under general anesthetic and others that required capping. It was learned that the grandparents had difficulty getting him to brush his teeth and gave him too much juice and sweets. It was recommended that they only provide milk or water for L.L. to drink at visits and, after some resistance and delay, this has been adhered to.
[60] The grandparents suggested that L.L.’s dental problem was not noticeable until after apprehension. I disagree. The grandmother had approached a dentist to see if L.L. could be seen there, but that dentist did not take children of his age. I find they were or should have been aware of L.L.’s dental problem and did not deal with it adequately.
[61] In January 2013, the CAS had thought it suitable to place a family support worker into the grandparents’ home to provide hands-on assistance and instruction in child behaviour management techniques. The grandparents agreed. The apprehension intervened.
[62] Two of the conditions of the supervision Order in place in February 2013 were that the grandparents report any changes in their home to the CAS and that they not allow their daughter any access to the children without CAS approval. The CAS received information from an unnamed source which led to an unannounced visit to the home on February 4. The impression I formed was that the CAS came over to inquire whether the mother may have had unauthorized access to the children or perhaps was living in the house.
[63] On February 4, the CAS observed a woman named Chelsea living in the house. She was pregnant and was described as a friend of the mothers who had nowhere else to go and would be staying for about one month. The grandmother said she did not know this was a breach of the Order. She did know Chelsea had two other children not with her as result of CAS involvement. She also admitted at trial that Chelsea did have other places where she could stay. The grandmother maintained that her daughter had not lived in the house and had not seen the children there.
[64] The CAS continued to inquire if the mother was at the house and was told she was not. Eventually, the grandmother admitted her daughter did come to the front door or just into kitchen, one or two times per week, and had limited contact with L.L. only. The social worker told her this violated the Order. The grandmother responded she thought the Order was too restrictive. The grandfather then entered the home. The social worker testified he had four coffees with him whereas only three people were said to be in the house. The grandfather maintains he only had three coffees. He did acknowledge that their daughter was having some limited contact with L.L.
[65] During the visit, the grandmother became emotionally overwrought, bordering on hysterical. She was crying and threatening to kill herself if she lost the children. At one point, she pushed L.L. towards the worker crying, “take him, take him.” The social worker said she needed to go upstairs to look in the two bedrooms before she could leave. At this point, the grandmother said, “ok ok, [K.F.] is asleep up there.” The worker did not go upstairs given this admission. She called her supervisor for instructions and subsequently the apprehension went ahead.
[66] Not too long after the apprehension, the grandmother telephoned the social worker and said she had lied about her daughter being upstairs. I find that would be an unusual thing for the grandmother to have lied about and I do not accept it. In her testimony, the grandmother explained she was overwrought and confused the two names, Chelsea, and her daughter’s name. That is a more likely explanation. However, given what she said to the social worker both in the home and on the telephone, I find that in fact the daughter was in the home that day when one of the children was also present and this was a clear contravention of the court Order.
[67] Not having the mother in their home was an important term of the supervision Order. In part, it arose through her relationship with the children’s father, which had resulted in violence in the home and the police being called on more than one occasion. In February 2011, there was a physical fight between the father and a friend that started on the main floor and ended upstairs with them fighting on the grandfather’s bed in which he was sleeping. L.L. was in the house and was awakened, crying. The police were eventually called but not until after the father had left. He was never allowed to live there again but, nonetheless, there was an ongoing relationship of some sort between the parents that gave rise to legitimate concerns that if she was in the house, he might come over.
[68] In addition, the relationship between the mother and grandmother had been characterized by conflict and tension. Several explanations were given. I find that essentially the problem was that, from time to time, the mother was not pulling her weight with childcare, household responsibilities or financial contribution. The grandparents also disapproved of her relationship with the children’s father. The grandmother actually lost her job when L.L. was a baby. The parents were going out late and all the childcare fell to the grandmother. She became so tired, she fell asleep on the job and was dismissed.
[69] The grandparents inability to insist that their daughter live elsewhere has become a chronic problem for them. They have articulated the understanding that she needs to live elsewhere so the house is peaceful for the children, but she is still there.
[70] By August 12, 2013, the mother was at her parents’ home most of the time. She was living there full-time by September 15 at the latest. The grandmother made many complaints to the social worker: the father was calling the house looking for her daughter; her daughter was in and out, coming home late or in the middle of night; she was passed out drunk on the sofa in July; she threw food and dishes on the floor; she said she wishes her parents would die.
[71] The social worker had several meetings with the grandmother about setting boundaries and gave specific advice. She told the grandmother not to let the daughter in the house, to change the locks, to tell her son not to let her in and to tell her if she did not leave the police would be called. No progress was made. On September 18, the grandmother phoned the social worker and whispered into phone, “I don’t know how to get rid of her.”
[72] It was also a concern to the court that neither grandparent knew their daughter was taking drugs in the summer, even though she was in their house so much of the time. Indeed, the grandfather did not accept that she had been using the drugs revealed by the hair follicle test even though his daughter admitted the contents of that report were true.
[73] I was also concerned by the grandmother’s testimony with respect to her daughter. She maintained that she would “throw her out” if necessary to keep the children, but she did not think she should have to. She thinks that her daughter is ready to make her children her priority now. Despite all of her complaints to the CAS over the second half of the summer, she now says it has been “great” having her daughter living with them since the father has been in jail, her daughter is “just wonderful”, and “now”, she is following the rules.
[74] Perhaps most telling was the grandmother’s closing testimony. She said she would like her daughter to live with them, to be a mother to her children and to try to get along as a family. She said their daughter needs her parents to help her out. I accept this as true and heartfelt.
Disposition
[75] I find the order in the children’s best interests is Crown wardship for the purpose of adoption. The option of a short period of Society wardship is not supported by the evidence before me. The mother has not yet established an independent residence. She has, at best, been off drugs since mid-September. In my view, she has not yet acquired the insight or maturity that would enable her to take sufficient steps in such short order to persuade a court it could safely and permanently place the children with her. That opportunity was provided when the trial was adjourned on terms from April to September.
[76] Regrettably, the mother’s case is still dependent upon telling the court what she plans to do, not upon showing the court what she has done.
[77] The fact that the mother has not yet moved out of her parents’ home whether to go Petawawa or to some other location in Ottawa, is also a reason why the children ought not to be returned to their grandparents now. Unless and until she has done so, for a demonstrated period of time, the court lacks the necessary confidence that it will actually happen.
[78] I have also considered the option of a short period of Society wardship as a potential precursor to a return of the children to the grandparents. The purpose of such an order would be to allow them time to do something necessary for the return of the children that they have not yet done. In this case, the primary step they needed to take during the period of adjournment was to put boundaries in place for their daughter and to enforce them. Despite all of the problems she encountered since mid–July with drugs and alcohol and failing to attend access consistently, they have not yet taken this step and in fact, do not actually feel the step is necessary. They take their daughter at her word that she has changed and is ready to priorize the children. In my view, this runs contrary to the evidence. Based on the evidence before me, I am not persuaded on balance of probabilities that the grandparents will require the mother to move out of their house, or that if she does, that it would be more than temporary.
[79] I have also considered the option of a short period of Society wardship given that the CAS plan to provide the grandparents with a family support worker focusing on child behaviour management techniques has not been implemented. I find the grandparents have shown that they could benefit from this type of assistance. But it would only prove fruitful if they also had the ability to say “no” to their daughter in terms of her coming into their house and abiding by terms of a court order as to any contact she may or may not be entitled to have to the children.
[80] In addition, there are other cracks in the grandparents plan. These include the non-compliance with the previous supervision Order in February 2013, L.L.’s dental problems, the slowness with which some of the steps required by the Kinship assessment were completed, and their own general circumstances. In my view, it would be essential for them to co-parent at virtually all times so that one of them is not alone and outnumbered, unable to ensure the safe control and management of these two young, active children. The grandfather already works part-time and the grandmother is looking for work outside the home. It is probable that one or the other of them would be required to look after the children on his or her own at various points in time.
[81] The mother and the grandparents all seek access to the children as Crown wards. I am not prepared to order access for the mother having regard to the provisions of Child and Family Services Act, R.S.O. 1990, c. C. 11, as am., section 59(2.1) and her inconsistent track record with respect to the exercise of access.
59(2.1) A court shall not make or vary an access order made under section 58 with respect to a Crown ward 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. 2006, c. 5, s. 17 (2).
[82] In my view, the grandparents do meet the criteria of section 59(2.1)(a) in terms of their relationship with the children being beneficial and meaningful to the children. With respect to (b), access to a Crown ward no longer prohibits the CAS from seeking an adoption home or from placing a child for adoption. An access order would require the CAS to give notice to the grandparents of an adoption placement. The grandparents would then have an opportunity to seek an openness order. The CAS has advised the court that it would allow access to the grandparents on a voluntary basis until an adoption placement is found and would seek openness in an adoption placement. They ask the court to accept this undertaking rather than making an order for access.
[83] The real issue in this case is whether an access order would impair the children’s future opportunities for adoption. The onus is on the grandparents to satisfy the court of both of the statutory requirements for access to a Crown ward. In my view, to the extent this is within their power, they have done so. The grandparents have established that they are cooperative with the CAS, they are not disruptive and they are motivated by the children’s welfare. Other than consequences of snacks with too much juice and sugar, now satisfactorily addressed, there has been no feedback from the foster parents that might disincline prospective adoptive parents from openness. The grandparents have not said or done anything during access that would lead a court to consider that their approach to seeking an openness order or their conduct if one were granted would be an impediment to an adoption placement. There might be other reasons why potential adoptive parents might oppose an openness order, but not any facts specific or personal to the grandparents on the record before me.
[84] It seems to me that in this case, the evidentiary onus has shifted to the CAS. I will not attempt to exhaustively delineate the type of evidence a Society might bring forward to meet the shift of the evidentiary onus to itself. It might be special needs suggesting a child may be difficult to place. It might be from foster parents to show bothersome or inappropriate contact from the applicant for access, or that existing access is disruptive or unsettling to the children on their return to foster care. An access supervisor might report disparaging remarks or refusal to follow foster parent’s routines during access. A Society may be in a position to lead some evidence to show that individual prospective adoptive parents under consideration or adoptive parents in general may be discouraged by the possibility of an openness hearing or an openness order. I did not receive this type of evidence. The court cannot presume that all Crown wardship orders with access will automatically deter potential adoptive parents.
[85] The ultimate onus of satisfying the court of both of the statutory requirements for access to a Crown ward remains on the applicant for access. In my view, such an applicant is not required to lead evidence to establish that an access order would not deter potential adoptive parents except in reference to the applicant’s own conduct or attributes, always considered in relation to the needs of the particular children.
[86] In this case, I am satisfied that an access order, and the fact that it may lead to an openness hearing, will not impair the future opportunities for these children to be adopted.
[87] For all of these reasons, I order Crown wardship for both children, with supervised access to the grandparents, on a once weekly basis.
J. Mackinnon J
Released: November 21, 2013
CITATION: The Children’s Aid Society of Ottawa v. K.F., 2013 ONSC 7207
COURT FILE NO.: FC-11-1819
DATE: 2013/11/21
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990
AND IN THE MATTER OF L.L., born [...], 2010 and J.L., born [...], 2012
BETWEEN:
The Children’s Aid Society of Ottawa
Applicant
– and –
K.F., J.L., L.F. and L.F.(2)
Respondents
REASONS FOR JUDGMENT
J. Mackinnon J
Released: November 21, 2013