COURT FILE NO.: C48/10-06
DATE: March 13, 2014
ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT
BETWEEN:
CHILDREN’S AID SOCIETY OF LONDON AND MIDDLESEX
Christine McLeod for the Society
Applicant
- and -
B.J.T. and D.M.
Edward J. Mann for B.J.T.
Salim Khot for D.M.
Respondents
HEARD: January 7, 9, 13, 14, 15, 16, 17, 2014
VOGELSANG J.
[1] This is a review of the status of three children: E.J.M. M., [age 7], and twins A.M. and T.M., [age 4]. The Children's Aid Society of London and Middlesex seeks an order making the children wards of the Crown and committing them to Society care. The parents of the children, B.J.T. and D.M.., argue that the Society has failed in its duty to support their family unit with appropriate services which adequately recognize the bonding and attachment between them and their children.
[2] For the reasons which follow, I am satisfied that the Society has made out its case and that a Crown wardship order should be made.
[3] Since both parents seem to argue that the integrity and maintenance of their family unit should be of primary importance, it is helpful to review the words of Katarynych J. in Children's Aid Society of Toronto v. R.D., [2013] O.J. No. 5891 (Ont. C.J.) where she says at paras. 17 to 19:
[17] All decision-making required by the Child and Family Services Act must be done in a manner that fuels the Act's "paramount purpose" to "promote the best interests, protection and well-being" of the child subjected to the decision-making. See CFSA, sub-section 1(1).
[18] Additional purposes catalogued for consideration are not permitted to undermine the Act's paramount purpose. Those additional purposes include recognition and consideration of the least disruptive available and appropriate course of action to help a child, recognition that help to a parent should give support to the autonomy and integrity of the family unit and wherever possible be provided on the basis of mutual consent, and recognition of a particular attitude to services to children and their families and how those services are to be rolled out to families and children. See subsection 1(2).
[19] It is legislation, in short, that tries to make plain that the child's needs and interests are distinct from the needs and interests of others, and must be the central focus of all decision-making. It is legislation that values a child's family and tries to protect a child within her family, but requires that option to be consistent with the best interests, protection and wellbeing of the child as the Act envisages those concepts. [emphasis added]
[4] When a Society applies for a review of a child's status under subsection 65.2(1) of the Child and Family Services Act, R.S.O. 1990, c. C.11 [ as amended], the only test is the child's best interests. Subsection 37(3) is formulated as follows:
Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall take into consideration those of the following circumstances of the case that he or she considers relevant:
The child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.
The child's physical, mental and emotional level of development.
The child's cultural background.
The religious faith, if any, in which the child is being raised.
The importance for the child's development of a positive relationship with a parent and a secure place as a member of a family.
The child's relationships and emotional ties to a parent, sibling, relative, other member of the child's extended family or member of the child's community.
The importance of continuity in the child's care and the possible effect on the child of disruption of that continuity.
The merits of a plan for the child's care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent.
The child's views and wishes, if they can be reasonably ascertained.
The effects on the child of delay in the disposition of the case.
The risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent.
The degree of risk, if any, that justified the finding that the child is in need of protection.
Any other relevant circumstance.
[5] The children were first taken from the parents in early March, 2010 when E.J.M. was almost four years old, the little twins then being only about eight months old. The Statement of Facts presented to the Court on November 15, 2010 (Ex. 1, tab 1) points to a very concerning circumstance for the children including inadequate food and housing, drug use and trafficking, Mr. M.'s recent incarceration, eviction, substance abuse on both parent's parts and a history of resistance to counselling or treatment. A finding was made that all three children were in need of protection as defined in s. 37(2)(b)(i) (risk of physical harm from failure to care for or protect). Templeton J. made a society wardship order for three months. Ms. T. and her counsel were present at the hearing.
[6] By mid-April, 2011, the parents had separated. Although Mr. M. was sometimes incarcerated, Ms. T. seemed to have stabilized somewhat. She was receiving treatment for her depression and counselling for her addictions. The three children had been spending increasing unsupervised access times with her at her residence for about two months. B.J.T. had agreed to work with the Society worker as well as a transitional family support worker who was to have come to her home twice a week commencing in April, 2011.
[7] When the status of the children was reviewed in early February, 2012 there had been a serious and unfortunate decline in the circumstances of the family, especially the children. Only two short weeks after the supervision order imposed by Marshman J. in the Spring of 2011, B.J.T. and her daughter E.J.M. has been napping after getting up early in the morning to watch the Royal wedding on the television. D.M.. entered the unit intoxicated and a considerable domestic altercation occurred. B.J.T. was injured in her face and ribs and called police. Mr. M. was later arrested and incarcerated until July 14, 2011. He was charged with assault and breach of an undertaking, and received a sentence of 60 days in jail.
[8] The Society worker met with B.J.T. a short time thereafter. They agreed to put in place a safety plan whereby D.M.. would not be allowed in the home after his release, a plan to which D.M.. subsequently explicitly agreed when the social worker met with him on two different occasions at the jail.
[9] Unfortunately, only one week after the father’s release from jail, the social worker arrived at an unannounced visit to the children's home and found D.M.. visiting with the children. He tried to run away, but a warrant was issued for his arrest. Regrettably, B.J.T. refused to cooperate with police and initially denied that D.M.. was in the home. She made excuses for his conduct, saying that it was too hot to meet with the children in the community and that it had been a long time since he had seen the children. Subsequently, B.J.T. again agreed with the Society to a renewed safety plan where she would not let D.M.. into the house again and she would abstain from alcohol while in a caregiving role. She firmly vowed that she would not let D.M.. in the home.
[10] Only four months later, B.J.T. was arrested for assaulting D.M.. Although she had previously agreed in the Statement of Facts admitted by the Court at the status review that she had assaulted him in front of the three children and hit him several times in the head, at this trial she tried to minimize her conduct. Police, however, were called and D.M.., as well, was arrested for violation of his probation order because he had contact with B.J.T. He was again taken to jail. Statements that E.J.M. made at the time indicated that D.M.. was seeing the children on a regular basis, contrary to the very specific safety plan agreed to by both D.M.. and B.J.T. The Society was very concerned.
[11] These serious setbacks led to Mitrow J. making a further six month supervision order on February 2, 2012. It was very specific in prohibiting D.M.. from attending at or residing at the home of B.J.T. with the children or being there at any time that the children could reasonably be expected to be in attendance. B.J.T. herself was specifically ordered not to allow D.M.. to attend at or reside in the home with the children or to be there at any time the children could reasonably be expected to be there.
[12] B.J.T. and D.M.. both had signed the Agreed Statement putting these facts, and their mutual commitments, before Mitrow J. before his order.
[13] By the end of 2012 the Society workers were feeling great concern about the – again – deteriorating family situation. The physical state of the home had again fallen off dramatically and B.J.T. had stopped meeting with the family support worker supplied for her by the Society, citing a personality conflict. E.J.M. and the twins had lost their daycare spots because B.J.T. was refusing to answer repeated, increasing concerns expressed by the daycare organizers concerning the poor hygiene of the children and their mother’s consistent failure to pick the children up on time or to remove them quickly from the school – as Provincial regulations require – when they were sick. Although their respective probation orders required it, neither parent had then completed the Changing Ways programme.
[14] I had the benefit of the evidence of Cheryl Montgomery, a Society team member with the principal worker, Kellie Ball. As well, Theresa English, the programme coordinator of Pond Mills Children's Connection, where B.J.T. obtained taxpayer subsidies for daycare for all her three children, gave evidence. So did Marta Vander Hoof, a 26 year educator at the public school where E.J.M. eventually was registered. I accepted and believed the evidence of these three witnesses with respect to the dire circumstances of the children as 2012 ended.
[15] All the children had many unexplained absences from their subsidized daycare placements. E.J.M., after she started school, missed a great number of days, again without adequate explanation. When in school the children were unkempt, untidy, dirty and ill-clothed. E.J.M., particularly, presented with a bad odour, smelled of urine and was shunned by the other students. Attempts by the daycare coordinator to remonstrate with B.J.T. were met with angry outbursts and accusations.
[16] At home the residence maintained by B.J.T. for the children was often in a desperate state. Ms. Montgomery described the squalor apparently in the home and the uncontrolled behavior of the children who acted "like animals." They were observed to run madly in all directions constantly. B.J.T. admitted they would take all of the available food from the refrigerator away to their rooms and eat it. She would find the wrappers. She said this was the reason there was so little food around: she had to shop for very small quantities so she could keep it from the children.
[17] Interestingly, Ms. T. had proved she was physically capable of cleaning the home and rendering it suitable for the care of her children; but, unfortunately, she could not maintain these standards for more than a fleeting period. She would only attempt to bring order to the residence after Kellie Ball issued very specific and strict orders and pointedly insisted on compliance.
[18] Emotionally, the children were showing signs of acute anxiety and withdrawal. A.M. was hiding and E.J.M. demonstrated that she was even more affected by the circumstances at home and the treatment she was receiving at school. She was sucking her thumb, withdrawing, hiding, repeating mantra-like words as much as 40 times, over and over. She was clenching her fists, rubbing her eyes obsessively and spontaneously spinning around and around.
[19] The school, the daycare and the Society were greatly concerned by the observations of emotional detriment and harm E.J.M. and A.M. were manifesting. They tried to intervene with B.J.T. to help, but she would have no part in any discussion about complaints or suggestions from the school or the daycare provider. She reacted angrily and abusively, refusing to recognize that her children were in serious trouble. Ms. English testified that, when A.M. and T.M. were finally asked to leave the daycare because of Ms. T.’s lack of redirection and compliance, it was the first time in 37 years of her involvement at the daycare where parental misbehavior or refusal to comply was the only cause for a child’s termination.
[20] Throughout this, of course, the overarching concern of the Society centred on the real difficulty in protecting the children from the recurring chronic domestic violence occurring between B.J.T. and Mr. M., which exposed the children to all the well-known, serious consequences for young persons exposed to assaults and domestic violence involving their caretakers.
[21] The order of Heeney J. dated October 18, 2012 had contemplated a slow increase in the access to the children afforded to Mr. M. Unfortunately, that was superseded by the next episode of domestic violence which occurred February 21, 2013. On that day, D.M.. had been at the home with Ms. T. and had been drinking throughout the day. In the evening it had turned into a physical altercation. The police took Mr. M. to jail. Ms. T. had a scraped nose and face the next day. At first she was very forthcoming with the Society worker, but then she tried to deny that there had been a physical fight. Ms. T. did agree with the worker that D.M., when drinking, would exhibit anger and lose control of himself. The worker discussed the role of both of the parents leading to the physical violence and the grave emotional risk to the children from being present and being aware of the assaults. Most importantly, Ms. Ball made it very clear to B.J.T. that D.M.. could not be in the home or with the children after his release from jail, and that he would only be able to see them in supervised access after he had engaged in a formal interview with her. Ms. T. agreed to those conditions.
[22] On February 27, Ms. Ball was informed by Ms. T. that D.M. was to be released from jail on March 14, 2013. B.J.T. was reminded in the strictest terms that Mr. M. could not be in the home or be with the children before an interview and a period of supervised access with the Society. She was reminded of the risk to her and the children if D.M. was in the home or with any of the children, and specifically told that the children had previously been in care for more than a year and that there would be grave consequences (leading to an unavoidable Crown wardship application) if they were apprehended after being found with Mr. M. The worker reviewed that warning with B.J.T. on March 13.
[23] Mr. M. was released on March 14. He called Ms. Ball in early April with a request to start access to the children. There was a meeting where Ms. Ball informed him that he would need to have a bout of supervised access before any other plan could be implemented and he was reminded strictly that he was not to be in the home or with the children. He was told that the children would be apprehended if he was found in their presence, with a resulting Crown wardship application instituted because of the statutory limits on the time young children were allowed to be in Society care.
[24] Remarkably, the Society received information on May 8, 2013 that E.J.M. and T.M. had been taken by their mother to Mr. M.'s residence and spent the past weekend with him. The children were apprehended and taken into Society care. Throughout their evidence, B.J.T. and D.M. treated the weekend incident as unimportant and the Society reaction unjustified. Ms. T. admitted to only a "mistake" and an “error in judgment.” She said she felt sorry for D.M. because he had not seen the children for a long time, and she decided she wanted to spend a weekend alone with A.M. who had been demanding her attention. Ms. T. freely admitted that she had initiated the weekend contact between Mr. M. and the children.
[25] Both Mr. M. and Ms. T. treat their refusal to comply with the clear Society direction as insignificant. They had and have no understanding of the seriousness of the repeated domestic violence and the future consequences for the children. They treat the apprehension as a mean and inexplicable action on behalf of the Society to cause prejudice to them. B.J.T. says the Society witnesses always “judged” her, disliked her and wanted to hurt her.
[26] The children have done well in foster care following the apprehension. E.J.M. continues to struggle at school, but needs and receives considerable assistance from staff. She is sleeping, eating better and has reduced the number of incidents of spontaneous urination. She is demonstrating less anxiety since the apprehension. The worker has noticed less clenching of her hands and rubbing or touching her eyes. Physically, she appears clean and better rested. While A.M. was unruly and engaged in frequent temper tantrums before the apprehension, and would grab at anything within reach and act out, she is now more reserved, calm, and well-behaved. The worker testified that A.M.'s demeanour and behavior, at the time of trial, was better than at anytime during the last four years.
[27] Both B.J.T. and D.M.. gave evidence. Their testimony was congeries of denial, blame and finger-pointing. Ms. T. sees herself as the victim of malice and mistreatment by the Society workers, and by everybody who was involved with the care of her children. For his part, D.M. is beset by a sad past involvement with the Children's Aid Society many years ago when a child of his - who exhibited many many special needs and disabilities - died while in Society care. He appears to ruminate about that almost constantly. He sees a personal animus against him on the part of Kellie Ball and the other Society employees. He reacts negatively to them, admitting: “I'm making it a little bit difficult for them because they are making it difficult for me." There were several areas of his evidence which were not believable and, at times, where he sought to mislead me, for example, his denial that he had ever been convicted of trafficking illicit drugs when his record displays such a conviction. Sadly, D.M. was particularly frank in his admission that, despite many past courses of treatment and counselling for alcoholism, he turns to alcohol when "speed bumps are put in [his] way." In his evidence he demonstrated angry, nasty and unstructured thinking and, like B.J.T., he blames everybody else for the difficulties with which his children have lived. Asked in examination-in-chief about the domestic violence and the constant physical altercations with Ms. T., he weakly answered: "unfortunately, people butt heads."
[28] B.J.T.. T. did call witnesses to the box. The first was a supporter of hers, Susan MacPhail, the Director of a specialized support centre called "My Sister's Place" where there can be as many as 150 women being supported and counseled. Ms. MacPhail was an excellent, articulate witness who chose her words thoughtfully and carefully. She has many years of experience in various fields of social work, social service and mental health. In her position as Director of the centre, she has been involved with B.J.T. over eight years although her contact, admittedly, usually involves Ms. T. being in a period of crisis. She described her relationship with Ms. T. as being "very strong and close."
[29] Ms. MacPhail testified about the many different structured courses and interventions offered by the centre on an informal "drop in" basis. She said that, all through the years, Ms. T. has taken part in most or all of those courses. She did say that at annual open houses or centre functions like a family picnic, she had occasion to see Ms. T. with the children so B.J.T. could "show them off." It appeared to Ms. MacPhail that Ms. T. made an effort to prepare the children for these visits. She described them as "well cared for, clean and with good clothing."
[30] After the apprehension, Ms. MacPhail referred Ms. T. for help. The mother was very concerned about D.M.. and his effect on the children, primarily the well-being of the family and, secondly, on her efforts to keep the family together. Through it all, B.J.T. said that she loved Mr. M. very much and Ms. MacPhail could tell that she was obviously anguished about their situation and the apprehension of the children. In the end, Ms. MacPhail testified that, in her view"Ms. T. loves her children above all else".
[31] Peter Kennedy, a chartered accountant, gave evidence. Mr. Kennedy is a friend of a woman who assists and has befriended Ms. T. A very honest and careful witness, he testified about the two occasions on which he attended at B.J.T.’s residence when the children were present. He described her "doing her best to keep the children under control" in a house that was "messier than [he] would have had" but he interpreted any mess and clutter to be the result of the very active children’s behaviour, as opposed to pernicious neglect. He did not see the squalor which the Society social workers saw several times. On his third visit to the residence – to deliver a used freezer he was donating – he made similar observations.
[32] Mr. Khot and Mr. Mann made much in their arguments about the importance of maintaining a family unit wherever possible. They stressed what they said was a strong emotional tie evident among the children, Ms. T. and Mr. M. For the purposes of their argument, I will accept their view of the attachment of these children, although there are certainly some contradictory indications in the testimony of Leah Healey, the Society supervised access worker.
[33] More important to me, in deciding this case, is the sad inability the parents have demonstrated in learning how to change their behaviour and conform to the instruction and counselling they have received from the Society workers and, over time, so many other sources. A significant example is Changing Ways, a recognized effective course of counselling about issues of anger-management and avoidance of violence, which was completed by each of B.J.T. and D.M.. as terms of past probation orders. Notwithstanding this specialized instruction, their chronic participation in domestic violence continued, as did their seeming inability to understand the long-term negative effect of the violent episodes on the children. These failures to change were not failures of knowledge or teaching. They were examples of an inability to effect a change of the lifestyle these two adults have chosen.
[34] Neither of these parents has put forward a meritorious plan which would lead me to believe that there is a chance of positive change which could lead to a reduction of continuing real risk to the children or, alternatively, the intervention of any other relative or family member to assist. On the other hand, the evidence does show that the children have responded well to their foster care placement and demonstrate real progress and improvement.
[35] Recalling the primacy of the best interests of the child underlined by Katarynych J. in Children's Aid Society of Toronto v. R.D., (supra) and the clear statutory considerations in s. 37(3), I am quite unable to see that the presence of bonds, attachment and emotional ties can itself determine the result where: the children have had their need for a proper, clean home frequently neglected; the children have been poorly nourished; the children have been unkempt and presented in a dirty and smelly state; the children have been kept from attendance at daycare and school with only a flimsy excuse or no excuse at all; the children have been allowed to drift into a state of severe emotional withdrawal and stress; the children have been permitted to be out of control most of the time and apparently bereft from discipline; and, instead of enjoying a secure place as members of a family, the children have been subjected to episodic, chronic domestic violence and mutual physical abuse between parents who cannot learn from counselling.
[36] In these circumstances any return of the children to B.J.T. is quite impossible. An order will go committing these three children to the care of the Children's Aid Society of London and Middlesex as wards of the Crown. Pursuant to the request of Ms. McLeod, the order will be silent concerning access.
“Justice Henry Vogelsang”
Justice Henry Vogelsang
Released: March 13, 2014
COURT FILE NO.: C48/10-06
DATE: March 13, 2014
ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT
BETWEEN:
Children’s Aid Society of London and Middlesex
Applicant
- and -
B.J.T. and D.M.
Respondents
REASONS FOR JUDGMENT
VOGELSANG J.
Released: March 13, 2014