ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 11-1109
DATE: 20130206
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 C.L.D., born […], 2011
B E T W E E N:
Family & Children Services of Lanark, Leeds and Grenville
Karynn Von Cramon, for the Applicant
Applicant
- and -
T.D. (mother)
C.F. (father)
Norman Lee, for the mother, T.D.
Francis Aheto-Tsegah, for the father, C.F.
Respondents
HEARD: December 3, 4, 5, 6 and 7, 2012
REASONS FOR DECISION
Pedlar, J.
[1] This is an action regarding the child, C.L.D., date of birth […], 2011.
[2] T.D. is the child’s mother and C.F. is the child’s father. Each parent is seeking to have the child placed in their care subject to access by the other parent. The Family & Children Services of Lanark, Leeds and Grenville (hereinafter called the “Society”) is supporting the request of the father to have the child placed with him. In the event of such a placement being made, the Society is not seeking a supervision order as they have no protection concerns with the father’s plan of care.
[3] Much of the background evidence relating to this case is contained in a Statement of Agreed Facts, filed as Exhibit Number 1 in these proceedings. A summary of that information is helpful to put the issues in context. The mother is thirty-two years old and currently receives Ontario Works benefits. She has been diagnosed with an obsessive compulsive disorder.
[4] The father is thirty-four years old and currently resides with his mother, J.F., and his sister, K.F. He is employed in the construction trade and has no other children and no prior involvement with child protection authorities. C.L.D. is the mother’s sixth child. Her three eldest children, A. age 15, D.2 age 14, and W. age 9, are in the legal custody of their maternal grandmother. Her two middle children, D.1 age 5, and T. age 3, were, at the time of the trial of this action, the subject of a concurrent protection application and were currently in the temporary care and custody of Family & Children Services of Lanark, Leeds and Grenville.
[5] T.D. was involved with the Frontenac Children’s Aid Society in 1997, following the birth of her first child, A.. She moved to Leeds and Grenville in 1998 and became involved with the Society immediately thereafter. T.D.’s second child, D.2, was born in 1998.
[6] The Society initiated a Protection Application in relation to A. and D.2 in 1998. Psychologist Dr. Patrick Lynch completed a parenting capacity assessment in relation to T.D.’s parenting of A. and D.2 on February 8, 1999, (see Exhibit 1, Joint Exhibit Book). At that time, T.D. was a very young mother, involved in an abusive relationship. Dr. Lynch found that T.D. showed some problems on testing, indicating failure to accept responsibility, a tendency to blame others, difficulty with conflicts, hypersensitivity, rigidity and anger. He recommended that T.D. continue to have supervision from the Society, for the safety of the children. Dr. Lynch found that indications of poor coping skills, hostility, and reluctance to accept responsibility for her actions made T.D. a moderate to high risk parent, in light of allegations of her behaviour towards the children. He recommended that any pattern of unexplained bruising or deterioration in functioning in the children should lead to apprehension of the children.
[7] The Society ultimately terminated its supervision order in favour of voluntary service. T.D. subsequently placed A. and D.2 in the care of their maternal grandmother on a voluntary basis. She was not in a position to be their full-time caregiver. T.D.’s mother obtained a final custody order relating to A. and D.2 in 2005.
[8] T.D.’s third child, W., was born in 2003, and initially remained in her care.
[9] In August, 2005, T.D. dropped W. off at a friend’s home and did not return for a number of days. T.D. agreed to a Contract of Expectations with the Society whereby she agreed to voluntarily place W. with the maternal grandmother. The maternal grandmother subsequently obtained custody of W. in the spring of 2006.
[10] T.D. became pregnant with D.1 in 2007. The Society assigned a child protection worker with their specialized high-risk infants program, EPPII (Effective Permanency Planning for Identified Infants). T.D. worked voluntarily with the Society throughout the last few months of the pregnancy. She was cooperative and had a stable residence. T.D. was tested for drug and alcohol use on a regular basis, and the tests were negative.
[11] D.1 was born in […], 2007, and remained in the joint care of T.D. and that child’s father, T.M., following the birth of the child.
[12] Beginning in late 2007, T.D. reported domestic conflict with T.M. The couple had serious verbal arguments as he was financially controlling of T.D. They separated in or about January, 2008.
[13] In August, 2008, T.D. resided with D.1 at Leeds and Grenville Interval House women’s shelter for a short period. Interval House staff made child protection reports on August 19, 25 and 31, 2008.
[14] T.D. continued to have frequent contact with T.M. following their separation. She conceived her fifth child, T., with T.M. in the summer of 2008.
[15] T.D. and T.M. continued to engage in frequent conflict following separation. In November, 2008, T.M. was charged with harassing T.D. and was ordered not to have any contact with her. T. was born in […], 2009.
[16] T.D. was charged with two counts of assaulting T.M. in December of 2009 and released on an undertaking that she not have any contact with him. She was acquitted of the assault charges on June 15, 2010 following trial.
[17] T.D. was involved in custody proceedings related to D.1 and T. from 2009 to 2011. They remained in her primary care throughout these proceedings. On January 17, 2011, a final order was made placing D.1 and T. in T.D.’s custody, subject to access as agreed upon. Thereafter, T.D. arranged access for T.M. in her home, under her supervision.
[18] T.D. and C.F. engaged in a relationship in the summer of 2010. C.F. did not become aware of T.D.’s child protection history during this relationship, during which C.L.D. was conceived. Following the relationship, T.D. informed C.F. of the pregnancy. They had limited contact during the pregnancy.
[19] During her pregnancy with C.L.D., T.D. received appropriate prenatal care and followed her doctor’s recommendations. C.L.D. was born on […], 2011 and resided in T.D.’s care. C.F. exercised day access visits in T.D.’s home. He typically visited every other weekend. He requested access outside of T.D.’s home but she refused, stating that she was breastfeeding.
[20] T.D. commenced a relationship with E.S. in or about August, 2011. During this relationship, he had contact with D.1, T. and C.L.D.. The Society did not become aware of this relationship until October, 2011.
[21] E.S. has a history of physically harming children. The Children’s Aid Society of Stormont, Dundas and Glengarry completed a joint investigation with the Cornwall City Police in November, 2008 in relation to E.S.’s physical harm of three children to whom he was in a care-giving role. These children reported that he dragged one child down a set of stairs. This child had several ligature marks around his neck and small clusters of broken blood vessels and bruising under his arm. Another child reported that E.S. had thrown one child against the wall, causing a bump to the child’s head. The Children’s Aid Society of Stormont, Dundas and Glengarry verified E.S.’s commission of physical abuse causing injury on a balance of probabilities.
[22] On November 2nd, 2010, E.S. was criminally convicted of one charge of assault and found not guilty of the other. The Reasons for Decision and Sentence related to the charges against E.S. were filed as Exhibit 7 in this proceeding. It is important to note that the complainants in that case were teenagers who had carried on a long and noisy argument while their mother was attempting to sleep. E.S. was not the father of either teen. There was no evidence to support a conviction with regard to the one teen. He was convicted for grabbing the other boy by his clothing and pulling him up off the floor to get him out of the house. In the Reasons for Judgment, the judge commended E.S. for tremendous patience up until the point of the action that caused the injuries suffered by the one boy that resulted in a conviction. The injuries are described as more than can be expected and accepted in these kinds of circumstances. His frustration was described as understandable but it went just a bit too far. His actions were described as not those of an angry person trying to hurt somebody but, rather, a corrective measure that went too far. He already had one previous conditional discharge for assault involving an altercation between himself and his father. In spite of that, he was granted a three month conditional sentence for this offence.
[23] In October, 2011, the Society informed T.D. of their child protection concerns regarding E.S. T.D. refused to limit E.S.’s contact with her children. She refused further voluntary involvement with the Society. No one from the Society met with E.S.
[24] The Society initiated concurrent Protection Applications in November, 2011, seeking supervision orders relating to C.L.D., D.1 and T., maintaining the children’s placement in T.D.’s care. With the initiation of that application, the Society learned of C.F.’s identity as the father of C.L.D..
[25] On November 16, 2011, The Honourable Mr. Justice Quigley granted temporary supervision orders relating to C.L.D., D.1 and T.’s placement with T.D. These supervision conditions included a requirement that T.D. ensure that E.S. not have any contact with the children.
[26] The Society did not locate C.F. for service of C.L.D.'s Protection Application until December, 2011. The child protection worker, Ms. Cassell, met with C.F. for the first time on December 14, 2011. C.F. advised that he would be willing, and able, to care for C.L.D. on a full-time and permanent basis, should T.D. be unable to care for her.
[27] On December 16, 2011, Ms. Cassell advised T.D. that she would be attending her home on December 29, 2011 to take D.1 and T. to access, (see Exhibit 4 in the Joint Exhibit Book). When she attended, as planned, T.D. was in bed and D.1 and T. were alone in the living room. C.L.D. was crying. Ms. Cassell was unable to rouse T.D. for half an hour. When awake, T.D. ordered the child protection worker from her home. Ms. Cassell and police returned shortly thereafter and T.D. refused them admittance to the home. The children were apprehended. T.D. subsequently explained that she was suffering from a migraine at the time of apprehension. She explained that she believed that Ms. Cassell was not scheduled to attend her home until later in the day (see Exhibit 5 of the Joint Exhibit Book).
[28] C.L.D. was initially placed in a foster home following apprehension. D.1 and T. were placed in a separate foster home. The Society informed C.F. of the apprehension, and he reiterated his willingness and ability to assume full-time care of C.L.D..
[29] The Society requested that the Children’s Aid Society of Ottawa conduct a Non-Custodial Parent Assessment of C.F. Ottawa child protection worker, Michael Baker, completed the assessment on an urgent basis. C.F. and his family members cooperated fully with the assessment. Mr. Baker provided a verbal approval of the placement on January 4, 2012. A written assessment was provided on February 2, 2012, (see Exhibit 6 of the Joint Exhibit book). As part of the assessment, it was confirmed that C.F. does not have a criminal record, nor any pardons for sexual offences. Further, no residents in the home have any previous involvement with child protection authorities.
[30] On January 4, 2012, The Honourable Mr. Justice Quigley granted a without prejudice order placing C.L.D. in the temporary care of C.F. subject to the Society’s supervision. C.L.D. has remained in C.F.’ temporary care to date.
[31] On January 4, 2012, The Honourable Mr. Justice Quigley granted a separate without prejudice order placing D.1 and T. in the temporary care and custody of the Society.
[32] C.F. was temporarily unemployed at the time of C.L.D.’s placement and initially provided full-time care. He soon returned to work, and arranged for his mother, J.F., to provide care for C.L.D. during his work hours.
[33] C.F. and his family members have cooperated fully with the Society. They have attended all visits as requested and are receptive to, and follow, the child protection worker’s recommendations. They have transported C.L.D. to access visits with T.D. and a volunteer driver brings her home.
[34] C.F. and his family provide a positive home environment for C.L.D.. The Society has no protection concerns for C.L.D. in that home.
[35] Following apprehension, D.1 said to his foster mother, “I don’t like my mommy because she smacks me”. In a subsequent interview with Ms. Cassell and her supervisor, D.1 reported that his mother smacks him on the hands and cheeks and that T. got smacked on the bum and on her cheeks. He reported that C.L.D. cried a lot when his mother was sleeping and that he tries to wake his mother up.
[36] T.D. responded that she only “smacks” the children in circumstances where they are doing something very wrong, such as touching the stove burner. She denies using regular physical discipline and denies that she has had to be woken up by D.1.
[37] On February 22, 2012, D.1 and T. returned to T.D.’s care and custody subject to a further temporary supervision order. The order was amended on February 28, 2012 relating to the father’s access. Supervision conditions included that T.D. would ensure that E.S. not have any contact with the children.
[38] On March 6, 2012, at the conclusion of the visit, T.D. and T.M., the father of D.1 and T., scheduled an access exchange at a MacDonald’s restaurant. A community member who witnessed the exchange reported the incident to the Society. The caller reported that T.D. was stumbling and appeared intoxicated.
[39] The Society’s after-hours emergency child protection worker, Angele Lefebvre, attended T.D.’s home with officers from the O.P.P. Grenville detachment. E.S. was found sitting on the couch in the living room and D.1 and T. were in bed. There was a wine bottle on the floor near the couch. A half-empty bottle of cold “Vex Hard Lemonade” was found in the kitchen and a case of it under the kitchen counter containing empty bottles. Ms. Lefebvre believed T.D. was intoxicated. D.1 and T. were again apprehended from T.D.’s care (see Exhibit 9 of the Joint Exhibit Book).
[40] On March 7, 2012, Justice Quigley granted a temporary order, placing D.1 and T. in the care and custody of the Society. They have remained in the Society’s temporary care to date.
[41] On March 13, 2012, Justice Quigley granted a temporary order, maintaining C.L.D.’s placement with C.F. and requiring C.L.D.’s access to T.D. be supervised by the Society, the Rosegarden Family Support Centre, or a supervisor to be approved by both the Society and C.F.
[42] T.D. commenced the Level 3 Triple P Positive Parenting Program provided by Robyn Holmes of the Leeds, Grenville and Lanark District Health Unit in February, 2012. She completed the program in June, 2012 (see Exhibit 10 of the Joint Exhibit Book).
[43] T.D. also continued to receive services from the Healthy Babies Healthy Children Home Visiting Program offered by the Leeds, Grenville and Lanark District Health Unit, (see Exhibits 11 and 12 of the Joint Exhibit Book).
[44] In the spring of 2012, T.D. completed intake for the Anger Program offered by the Elizabeth Fry Society of Ottawa. On May 17, 2012, Anger Program Counsellor, Yoshie Martinez, determined that T.D. did not need to take the program (see Exhibit 16 of the Joint Exhibit Book).
[45] On June 26, 2012, T.D. brought a new partner, D.F., to a Society appointment. T.D. advised that she wanted to include him in access visits. Ms. Lynk directed T.D. not to include him in visits until the Society approved otherwise. On August 10, 2012, they broke up.
[46] On August 13, 2012, D.F. attempted to force his way into T.D.’s residence. Neighbours contacted police and he was charged with criminal harassment. D.F. reported previous physical conflict in their relationship.
[47] T.D. continues to have contact with both D.F. and E.S.
[48] Dr. Patrick Lynch completed a Parenting Capacity Assessment of both T.D. and T.M. on August 24, 2012 (see Exhibit 17 of the Joint Exhibit Book). In that report, starting at page 68, Dr. Lynch states as follows:
“In summary, the picture seems mixed with respect to T.D. She has a number of areas of strength, and her mother appears to see areas of improvement in the recent past. There are some concerns about her compulsive style, and her tendency to become more so under stress. Other concerns include her difficulty with corrective input, and her tendency to be very reactive against it. Despite various allegations, there was no clear indication regarding substance abuse. The biggest problems seem to be a denial of responsibility that was very broad and pervasive. She completely failed to acknowledge any responsibility for the first three children being in care, blaming it all on her mother. Her thinking seemed hazy and her recollections unclear, especially around issues like this. She could not seem to see that it would be close to impossible for somebody who did not have problems to lose custody of her three children in this fashion. This is one of her greatest weaknesses. Similarly, in the current situation, she tended to minimize or explain away her breach of the first item in the contract of expectations. Thereafter, she has clearly maintained some sort of a link with E.S., and her denials that a relationship exists are somewhat dubious, given that he recently drove her to see her grandchild.
T.D. has a quite clear pattern of unstable relationships, and appeared to have no recognition of this. At least two of the five men who are the fathers of her children assaulted her or were involved in domestic disputes. E.S. had a history with another CAS regarding treatment of children, and the latest potential partner was involved with a domestic dispute with her. Her position seems to be that these things just happened to her, and she projects blame on to others, such as CAS, her lawyer, and members of the community. The children appeared to have deficits in social skills and perhaps academics. Their tendency to show some bonding with the foster parents, and to give less signs of attachment than expected to their mother, hints at attachment difficulties.
She appears to have an historical pattern of putting her own needs first, such as the instances where she turned over her first three children to her mother. Her insistence on maintaining the relationship with E.S. was another example of putting her needs first. T.M.’s [redacted] gained the impression that she had been manipulative about issues of access to the children, another probable instance. Yet another was her foot-dragging about the urgently-needed consents for D.1’s dental surgery.
Despite the history and difficulties shown, there does seem to be some potential for T.D. to resume care of at least some of the children. The biggest obstacle appears to be her insistence that there is nothing that she needs to change. If she would acknowledge some responsibility for the difficulties that the six children have faced, she would appear to be a very much better prospect to become a good-enough parent. At the moment, her energy seems to be going into defending herself, rather than into looking for and working with areas in need of development. She denies that she has ADHD, though her mother now thinks differently, but she definitely has a problem with impulsive decision-making, particularly around relationships. OCD characteristics may be present, and may become more pronounced under stress, but they do not appear to be a major factor in the situation.
Overt problem areas such as substance abuse and inappropriate discipline have been alleged, and probably played some part at times, but do not appear to be central to the situation. The 1999 parenting capacity assessment noted the history of concerns, of transience, substance abuse, neglect and experience of domestic violence. She was found to have failures in accepting responsibility, had a tendency to blame others, and had difficulty with conflict, hypersensitivity, rigidity and anger, along with poor judgment in relationships. While the situation today is not as dire, and the areas in which she needs to improve are not as clear-cut, there is ample reason to be concerned about the well-being of the children. She needs to continue work on areas which have already been started, such as some aspects of parenting skills, and personal counseling aimed at understanding the difficulties that she has in relationships, and her tendency to project blame on to others.
Given that her pattern of deficits is pervasive, but somewhat subtle at this point, the following is suggested as a potential course of action, in addition to measures already in place. If she was willing to sign a statement admitting responsibility for some of the difficulties that her children have encountered, it would go a long way towards creating reassurance that thing would be better in the future. If she were not willing to sign such a statement, there does not seem to be a lot of reason why the future would be much different from the past, and there would be an increased likelihood that the children would need to come into care permanently.”
[49] One would have hoped that, with the knowledge that this trial is pending regarding the custody of C.L.D. and with D.1 and T. still, at the time of the trial, in the care of the Society, that T.D. would have addressed the specific concerns raised in this assessment. She has failed to do so in any meaningful way. She certainly has made some improvement, for which Dr. Lynch gives her credit in the report, but she still fails to take responsibility for the part that she has played in the problems experienced in the raising of all of her children to date.
[50] As recently as the summer of 2012, she, again, chose a person to introduce into the children’s lives for a relatively brief period. That person ended up being charged with criminal harassment of her and he reported physical conflict within their relationship. Her lack of insight into the implications for the numerous partners and lack of stability together with exposure to a chaotic home environment characterized by either verbal or physical abuse is concerning.
[51] Based on the above statement of facts together with parenting capacity assessment, I find that the child herein, C.L.D., date of birth, […], 2011, to be a child in need of protection while in the care of her mother, T.D., pursuant to Section 37(2)(b)(g) of Child and Family Services Act. The child remains at risk if she were to be returned to the care of her mother, T.D.
[52] Having found the child herein to be a child in need of protection, I must look at the options available under Section 57, or Section 57.01, of the Child and Family Services Act, while keeping in mind the principles set out in Section 1, subsections (1) and (2), of the same legislation, which define the paramount and other purposes of the Child and Family Services Act.
[53] Based on the above set of facts, it is clear that the child has been in the care of her father, C.F., with the support of his mother and sister, for approximately one year and is thriving. The mother has had somewhat restricted access in the sense that it has been supervised, but an extraordinary effort has gone into providing her a significant number of hours of supervised access regularly.
[54] In many ways, that access has gone reasonably well and the mother certainly has demonstrated the capacity to nurture C.L.D., as well as D.1 and T. in many ways. The court heard evidence from access supervisor, Gloria Perry, who reported that about three times in the four weeks preceding the trial, T.D. had grabbed C.L.D. in a manner that was forceful. Most parents in the circumstances of supervised access immediately preceding a trial, even with all the stress that goes with that, would conduct themselves at their very best, knowing that someone in authority would be advised of how those visits went.
[55] The Society has been concerned about T.D.’s association with both E.S. and D.F. As noted above, E.S.’s risk factor may have been somewhat misinterpreted by the mere reading of his criminal record without getting the details, as set out in Exhibit 7, of what led to that single conviction of assault involving a teenager. D.F.’s criminal record is not related to any child protection issues directly, although one could be somewhat concerned about the risk he may be part of the criminal drug subculture. He has regular access to his own children. On behalf of the mother, her counsel suggests that the evidence of D.F., who was in custody related to the criminal harassment charges, in which T.D. is the complainant at the time of the trial, may be something that he is using to get back at T.D. through the C.A.S. Ironically, he may be more of a problem from a child protection point of view than E.S.
[56] A decision as to what is in the best interests of a child must be guided by the principles set out in the legislation as articulated in Section 37(3) of Child and Family Services Act. There are a number of factors spelled out in that subsection, and I consider factors number 1, 2, 5, 6, 7, 8, 10, 11 and 12 relevant in this case.
[57] Taking into account the evidence herein and applying it to those relevant factors spelled out under Section 37(3), I find that it is in the best interests of this child, C.L.D., pursuant to Section 57.1 of the Child and Family Services Act, to be placed in the custody of her father, C.F. There is no need for a supervision order as I find that a custody order is more appropriate than an order made under Section 57(1) of the legislation.
[58] The mother, T.D., is entitled to reasonable access to C.L.D.. Rather than continue the requirement for supervision, I would prefer to meet the best interests of C.L.D. by putting conditions on T.D.’s access to C.L.D., which would include that she not physically discipline the child, or allow any other adult to do so, during her period of access, that she not be under the influence of any illicit drug or alcohol, that she not expose C.L.D. to any domestic violence, that as long as the father, C.F., is totally responsible for all transportation that T.D. contribute $20 per month as a partial contribution toward the cost of such access. Such access to continue as daytime access with the approximate same frequency and duration as the access taking place prior to the trial, with a view to working towards overnight access.
[59] One of the complicating factors in this case regarding access is that as of the date of the trial, it was not yet determined if the other two children, D.1 and T., would be returning to the mother, T.D.’s care or remaining with the Society. That obviously has huge implications for access to C.L.D.. If the mother has those two children in her care, then it will be easier to coordinate access but also it may give C.L.D. a comfort level that would allow overnight access to take place more quickly than if they remain in care. Those are unknowns to me as of the date of this decision and will have to be taken into account as matters unfold relating to the care of those two children.
[60] I do not find E.S. to be a sufficient risk to this child, that he need be excluded from any access exercised by T.D. to the child. I would add a condition that he not be left with the sole responsibility for C.L.D.’s care at any time during access and that the mother should be present at all times if he is also present for any portion of the access visit. Given the history of poor choices in male partners, it would seem, however, to make sense that any adult male that T.D. wishes to have present during the access should be identified, in advance, to the Society so that they have a reasonable opportunity to determine if that person suitable to be present.
[61] Obviously, if the other two children are returned to her care, there will be supervision terms that would deal with many of these concerns, but that is an unknown at the time of this decision.
[62] If there are any issues relating to the access that need to be refined and the parties cannot agree on them, the matter could be brought back on reasonable notice to deal with that issue or it could be dealt with, by written submissions, by any party seeking clarity or additional terms.
[63] I thank counsel for their assistance dealing with this very important matter.
MR. JUSTICE KENNETH E. PEDLAR
Released: February 6, 2013
T.D. and C.F. 2013 ONSC 838
COURT FILE NO.: 11-1109
DATE: 20130206
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 C.L.D., born […], 2011
B E T W E E N:
Family & Children Services of Lanark, Leeds and Grenville
Applicant
- and –
T.D. (mother)
C.F. (father)
Respondents
REASONS FOR DECISION
Pedlar, J.
Released: February 6, 2013