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
T.B.L. born, […], 2010
B E T W E E N:
Children's Aid Society of Stormont, Dundas and Glengarry
Elizabeth MacLennan and Melanie Verdone, counsel for the Children’s Aid Society of Stormont, Dundas and Glengarry
Applicant
K.L., C.B., M.V., and E.E.
Penelope Gardner, counsel for the Respondent, K.L.
Respondents
Stephane Perreault, counsel for the Respondent, C.B.
Jocelyne Paquette-Landry, counsel for the Respondents, M.V. and E.E.
HEARD: November 14th, 2013
REASONS FOR JUDGMENT
LALIBERTE, J.
Introduction
[1] The Court is asked to make a temporary order for care and custody pursuant to Section 51 of the Child and Family Services Act. The proceedings revolve around 3 year old T.B.L. who was born on […], 2010. This child was apprehended by the Society on August 30th, 2013 on the strength of a warrant of apprehension issued on the same date. A without prejudice interim order for the care and custody of T.B.L. was granted by this Court on September 11th, 2013 in favour of the Society. This temporary order provided for access at the Society’s discretion.
[2] T.B.L. was placed by the Society in the care of her paternal grandmother, B.B. The following individuals were allowed access to the child by the Society:
K.L.: biological mother
C.B.: biological father
M.V.: maternal grandmother
E.E.: maternal grandmother
These four individuals are parties to these proceedings.
[3] The Society’s claim, as articulated in an application issued on September 4th, 2013, is that T.B.L. is in need of protection under clause 37(2)(g) of the Child and Family Services Act, namely: the risk that she will suffer emotional harm.
[4] The parties to this section 51 temporary care and custody hearing are seeking the following respective orders:
Society
T.B.L. should remain in the care and custody of the Society subject to access at its discretion.
K.L.
T.B.L. should be returned to her care or, in the alternative, in the care of her maternal grandparents. This should be subject to the Society’s supervision.
C.B.
The child’s care and custody should be granted to the paternal grandmother, B.B., subject to Society’s supervision.
M.V. – E.E.
They should be granted care and custody under Society’s supervision.
The Law
[5] The test to be applied by the Court was articulated as follows by Justice Blishen in Children’s Aid Society of Ottawa-Carleton v. T. [2002] O.J. No. 2273 at paragraph 10:
“The Children’s Aid Society must establish, on credible and trustworthy evidence, reasonable grounds to believe that there is a real possibility that if the child is returned to his parents, it is more probable than not that he will suffer harm. Further the Society must establish that the child cannot be adequately protected by terms and conditions of an interim supervision order to the parents.”
[6] The Court must be mindful of the paramount purpose of the child protection legislation which is to promote the best interests, protection and well-being of children. If available and appropriate, the least disruptive course of action should be considered.
Discussion
[7] T.B.L. is 3 years old. Thus far, her life has revolved around her parents, her maternal grandparents and more recently, her paternal grandmother. It is fair to say that M.V. has been the primary caregiver since the child’s birth. She describes herself as T.B.L.’s “surrogate mother”.
[8] There is uncertainty and debate as to the involvement of the biological parents in their daughter’s life. Depending on who you believe, it varies from minimum involvement to co-parenting with M.V.
[9] According to the Respondent mother, K.L., T.B.L. was 3 weeks old when a worker from the Society attended her home to warn her not to leave C.B. alone with their child as there were allegations that he had sexually assaulted his niece. K.L. states that it was the need to constantly supervise the father that prompted her to bring the child to her mother’s home.
[10] On July 7th, 2012, the Society was contacted by the Cornwall Community Police Services in regards to a physical altercation between C.B., M.V. and her other daughter, J.C. While the versions vary, all describe a fairly violent encounter. Two year old T.B.L. was in a neighbor’s arms watching these individuals fight.
[11] T.B.L.’s next encounter with the Society was triggered on June 21st, 2013, when K.L. contacted the Society to report that her daughter had made utterances suggesting that C.B. had touched her vaginal area. M.V.’s version of the circumstances surrounding these alleged utterances was found to be substantially different than what had been provided by K.L.
[12] In July and August 2013, T.B.L. was subjected to two physical examinations at M.V.’s request to uncover evidence of sexual abuse at the hands of C.B. These examinations did not reveal evidence that T.B.L. had been touched sexually. At most, Dr. Vanhees noted mild irritation on the child’s vulva. More troubling for Dr. Vanhees who examined T.B.L. on August 5th, 2013, was M.V.’ behavior who was providing other patients in the waiting room with details of how T.B.L. had been sexually abused. Out of concern for T.B.L., Dr. Vanhees contacted the Society.
[13] The high level of animosity and conflict between the adults in T.B.L.’s young life is further evidenced by the following:
i) M.V. describes C.B. as a “scary” and “dangerous” man who had physically abused K.L.;
ii) M.V. describes an incident where C.B. charged her with a baseball ball calling her an old bitch;
iii) B.B. states that the maternal family lies all the time;
iv) On the date of the apprehension, M.V. was observed approaching B.B., pushing her bangs and stating she wanted to know what she looked like; she then raised her finger and would have stated that she knew where she lived;
v) Allegations that M.V. is making negative comments about C.B. in front of T.B.L.; the suggestion is that she on one occasion yelled at C.B. that he was an animal while T.B.L.was in her arms;
vi) Allegations that the maternal family members are harassing and stalking B.B. and C.B. since the apprehension;
vii) On October 17th, 2013, C.B. was charged with an assault which involves the use of a crowbar; the complainant K.L. describes that “…we were at the corner waiting at the light, C.B. gave me the finger and went after us with a crowbar.”
[14] Unfortunately, the indications are that the high level of animosity and conflict are not relenting since the apprehension.
[15] Of significance, M.V. and E.E. are now clearly in conflict with the Society. They indicate the following in their affidavits:
“This very society, that claims itself to want to protect children, is the very same society that is breaking our home, protecting a pedophile, from being exposed by keeping T.B.L. hushed…”
[16] It is in such a context that the Court is being asked to determine who should care for T.B.L. pending the completion of these child protection proceedings. Are there reasonable grounds to believe that there is a risk that T.B.L. is likely to suffer emotional harm if returned to the setting that existed prior to her apprehension?
[17] The Court is of the view that the individuals who have cared for T.B.L. before her apprehension have collectively created an environment which is harmful to this young child. She has been exposed to physical violence and turmoil. She has witnessed punching, pushing, threatening, choking, yelling… As already noted, the evidence is that such behavior is not easing up.
[18] Is it reasonable for the Court to believe that the historical exposure and likely future exposure to such conflict and violence is likely to cause emotional harm to T.B.L.?
[19] In Jackson v. Jackson 2008 3222 (ON SC), [2008] O.J. No. 342, Justice Murray provides a summary of studies on how high conflict family dispute causes serious emotional harm to children:
Jekielek – 1998
“The results suggested that both parental conflict and marital disruption are critical predictors of children’s emotional well-being… Parental conflict had a consistently significant negative impact on child anxiety and depression four years later, suggesting that parental conflict has enduring effects on child well-being.”
Shaw and Emery – 1987
“…the level of parental acrimony was related to children’s behavioural problems… Parental acrimony was found to be significantly related to children’s perceived cognitive competence.”
Gilroy – 2007
“…A useful analogy is to think about emotional security as a bridge between the child and the world... When the marital relationship is functioning well, it serves as a secure base, a structurally sound bridge to support the child’s exploration and relationship with others… When destructive marital conflict erodes the bridge, children may lack confidence and become hesitant to move forward or may move forward in a dysregulated way, unable to find appropriate footing within themselves or in interaction with others.”
[20] The Court finds that the Society’s concerns for this child are based on reason. The Society has adduced credible and trustworthy evidence to support a finding that there are reasonable grounds to believe that T.B.L. will likely suffer harm if returned to the pre-apprehension family setting.
[21] This finding is also supported by the maze of uncertainty which stems from the affidavit evidence filed by the Respondents. The allegations raised by these individuals allows for a spectrum of possibilities of how T.B.L. is at risk of harm.
[22] The evidence of the maternal side of the family suggests that T.B.L. was subjected to sexual abuse at the hands of her father. The paternal side suggests that T.B.L. is being subjected to systematic alienation. At either end of the spectrum, she is being harmed and the harm is likely to continue.
[23] The final issue for this Court is whether T.B.L. can be protected adequately by the plans proposed by the Respondents, namely care and custody under the Society’s supervision.
[24] In deciding this issue, the Court is mindful that the least disruptive course of action should be favoured by the Court if appropriate.
[25] Having considered all of the circumstances, the Court concludes that care and custody of T.B.L. should remain with the Society subject to access in the Society’s discretion. This conclusion is based on the following considerations:
K.L.
-the Court is concerned with her obvious and repeated resistance at submitting to a drug test;
-the Court is concerned with her inability to manage her mother’s involvement in the child’s life;
-she is possibly part of the alienation and this risk cannot be managed through conditions;
-there is little concrete information about her proposed plan of care.
Maternal grandparents
-their stated position that the Society is “breaking their home”, “protecting a pedophile” and “keeping T.B.L. hushed” makes it such that this would serve to fuel more conflict in T.B.L.’s life;
-they are possibly the source of alienation and this cannot be managed through supervision and conditions;
-the Court is troubled by the fact that M.V. was charged with abduction in the Province of Quebec and the nebulous information provided by her;
-Dr. Crooks’ letter of August 29th, 2013, stating “I am writing to let you know that I have concerns about M.V.’s ability to care for her granddaughter;” the Court fails to see how Dr. Crooks’ subsequent letter changes this position; in the subsequent letter the doctor indicates that she is concerned with M.V.’s’ interests; the Court’s concern is with T.B.L.;
-there are many examples of conflicting information provided by M.V. which impacts on her reliability;
-she may have physically assaulted C.B. in front of T.B.L.
B.B.
-while it appears that T.B.L. is being properly cared for by B.B., the Court’s view is that the ultimate care and custody should, at this juncture, remain with the Society;
-the alleged harassment and stalking in the context of strong animosity and conflict, requires that control be vested in an entity which is faceless.
[26] The Court makes the following temporary order under section 51 of the Child and Family Services Act:
The child, T.B.L., born […], 2010, shall remain in the care and custody of the Society;
The Society shall allow access at its discretion.
Justice Ronald M. Laliberte Jr.
RELEASED: November 21st, 2013
COURT FILE NO.: C851-13
21/11/13
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
T.B.L. born, […], 2010
B E T W E E N:
Children's Aid Society of Stormont, Dundas and Glengarry
Applicant
- and –
K.L., C.B., M.V., and E.E.
Respondents
REASONS FOR JUDGMENT
Justice Ronald M. Laliberte Jr.
Released: November 21st, 2013