ONTARIO SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FC-13-2249
DATE: 2014/03/04
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
N.A.-R., born […], 2010 and
I.A.-R., born […], 2011
BETWEEN:
The Children’s Aid Society of Ottawa
Applicant
– and –
V.A. and M.R.
Respondents
Lara Malashenko, for the Applicant
Wendy Rogers, for the Respondent V.A.
David Hughes, for the Respondent M.R.
HEARD: January 30, 2014
DECISION ON MOTION
Madam Justice B. R. Warkentin
[1] This matter was originally scheduled for a care and custody motion. That motion was adjourned on consent pending the hearing of a records motion and a motion for a parenting assessment sought by the Society.
[2] The mother (V.A.) and father (M.R.) consented to the disclosure of their police records from the year 2010 forward but objected to any disclosure prior to 2010, alleging that disclosure would amount to a fishing expedition by the Society.
[3] The Society sought occurrence reports on both parents from the time they were no longer youths up to the present time on the basis that all information in those occurrence reports that might relate to domestic violence, other conflicts, or substance abuse and violence were relevant and necessary for their review. The Society confirmed that it would not utilize any records that were not relevant to their investigation. In addition, the Society sought a parenting assessment on both parents pursuant to s. 54 of the Child and Family Services Act, R.S.O. 1990, c. C.11 (“C.F.S.A.”). Both parents objected to participating in a parenting assessment prior to the hearing of a care and custody motion.
[4] It should be noted that Mr. Hughes had recently been retained by the father and he filed an Answer and Plan of Care over the bench on behalf of the father.
[5] On February 13, 2014 I delivered a brief decision granting both motions of the Society and indicated written reasons would follow.
[6] Subsequent to my decision, the parties consented to the assessment being completed by Dr. Nitza Perlman, and that assessment, as I understand, is now underway.
Background
[7] There are two children who are the subject of this proceeding, N.A.-R., born […], 2010, and I.A.-R., born […], 2011. At the time of this hearing, Ms. A., born […], 1991, and Mr. R., born […], 1981, were expecting their third child, due sometime in February or March, 2014.
[8] Child protection agencies in both Quebec (Gatineau) and Ottawa have been involved with this family on several occasions. The concerns by the agencies have been with respect to domestic violence, neglect, parenting abilities and substance abuse. Additionally, the parents have a history of not cooperating with child protection agencies. In April, 2013, Les Centres jeunesse de l’Outaouais (Gatineau) (“C.J.O.”) obtained an order placing the children with the mother subject to a variety of conditions.
[9] In May, 2013 the children were briefly apprehended because the parents were not respecting the conditions, specifically that the parents could not be together in the presence of the children.
[10] By September, 2013, the file was transferred to the Society in Ottawa because the parents had moved to that jurisdiction.
[11] The Society’s position was that, while the parents have recognized that there are conflicts and violence in their relationship, they have demonstrated minimal insight on the impact of that domestic violence on their children.
[12] On October 24, 2013, Madam Justice Aitken made an order placing the children in the care and custody of the Children’s Aid Society pending a care and custody motion. Before bringing that motion, the Society had attempted to obtain the voluntary cooperation of the parents with respect to a variety of conditions relating to the care of the children. Both parents refused to cooperate with the Society.
[13] On October 23, 2013, there was an incident of domestic violence between the parents and others in the presence of the children. By this time, the parties had separated and the father was residing with family members. It was due to this incident together with the history of domestic violence that the children were placed in the care and custody of the Society. Since that time, the parties have attended scheduled visits with the children. Due to conflict between the parents, the Society has scheduled visits separately.
[14] The observations of workers at the Society has been that the children do well with their father when he visits; however, Mr. R. has been overheard making inappropriate comments about the children’s placement in care, such as: “The C.A.S. will pay for every tear shed by the boys.” Comments of this nature have been made in the presence of the children. With respect to the mother, the Society has ongoing concerns about her conduct during the visits. Visits between Ms. Andrews and the children tend to focus around food with minimal engagement in play. Nonetheless, both parents demonstrated an ability to engage with the children and the children are excited to see the parents and often sad when the parents’ visit is over.
[15] Difficulties are significant with respect to the cooperation by the parents with the Society. With respect to the mother, it is the Society’s position that the mother does not acknowledge the historical conflict with the father and has a lack of insight and an unwillingness to cooperate or work with the Society in any meaningful way.
[16] Most significantly the mother has not taken any steps to work on the issues identified by the Society in order to have the children returned to her care. The mother has worked with some organizations such as the Sexual Assault Support Centre and the mother also claims to have been attending counselling at the Young Women at Risk Program on a weekly basis since January, 2014, as well as with the Elizabeth Fry Society.
[17] The mother also attended a ‘Discipline that Looks for Solution’ workshop at the Ottawa-Orleans Early Years Centre in December, 2013, and has registered for a parenting course at St. Mary’s but is on a waiting list.
[18] Notwithstanding these steps, the mother has refused to consent to the Society contacting the counsellors and others with whom she has been meeting. Additionally, the Society noted that none of these programs or therapeutic environments involves observing the mother with the children or addressing the mother’s parenting issues.
[19] With respect to the father, it was the Society’s position that the father has a stronger bond with the children than the mother, whose level of attachment with the children was of concern to the Society.
[20] It was the Society’s concern that the father’s resentment toward the Society and his inability to work with the mother whenever the parties have joint visits with the children that caused the Society to recommend a parenting assessment for both parents.
[21] The Society was of the view that an assessor would provide guidance particularly with respect to the issues of domestic violence which remains a live issue between the parents, as well as their roles in moving forward in parenting these children.
[22] Counsel for the mother claimed that the assessment should not be granted prior to a care and custody hearing. It was her position that the assessment at this early stage would be intrusive and used by the Society for purposes that would not be appropriate in the circumstances.
[23] While counsel for the mother admitted there had been a lack of cooperation by the mother with the Society, it was her position that the mother felt continually under attack by the Society and that the Society glossed over the fact that there had been many instances of cooperation.
[24] Mr. Hughes for the father took the same position with respect to the assessment as the mother.
The Law
[25] Section 54 of the C.F.S.A. states:
(1) In the course of a proceeding under this Part, the court may order that one or more of the following persons undergo an assessment within a specified time by a person appointed in accordance with subsections (1.1) and (1.2):
The child.
A parent of the child.
Any other person, other than a foster parent, who is putting forward or would participate in a plan for the care and custody of or access to the child.
[26] Ontario Regulation 25/07 also includes the following with respect to ordering an assessment:
Criteria for ordering an assessment
- An assessment may be ordered under section 54 of the Act, if the court is satisfied that,
(a) an assessment of one or more of the persons specified in subsection 54 (1) of the Act is necessary for the court to make a determination under Part III of the Act; and
(b) the evidence sought from an assessment is not otherwise available to the court.
Timing of assessment
- (1) A court may order an assessment under section 54 of the Act if the criteria set out in section 2 are satisfied and,
(a) the court has received evidence, held a temporary care and custody hearing and made an order pursuant to subsection 51 (2) of the Act;
(b) the court has made a finding that a child is in need of protection pursuant to subsection 37 (2) of the Act; or
(c) all parties to the proceeding consent to the order being made. O. Reg. 25/07, s. 3 (1).
(2) An order under clause (1) (c) may be made at any time during the proceeding.
[27] In The Children’s Aid Society of Hamilton v. E.P., D.T., L.M., Six Nations of the Grand River, 2013 ONSC 707, Mr. Justice Pazaratz wrote at para. 31:
31 Court-ordered assessments by independent mental health professionals play an important role in the resolution of child welfare cases. However, they are not automatically mandated or justified in every case. In deciding whether an assessment is appropriate in a particular case, the court must consider many factors including:
a. The nature of the issues or dispute.
b. The extent to which expert opinion is required to assemble or interpret information or evidence which would not otherwise be available for the trial judge.
c. The delay that may result from an assessment.
d. The potential intrusiveness for the parents and children involved.
e. The availability of qualified assessors, and time estimates for the completion of reports.
f. Controversy which may arise about professional qualifications, methodology, and standards in the assessment field.
g. The cost of assessments in an era of increasingly limited resources.
Analysis
[28] This is a case where the parties have two young children, a third either newly born or on the way, and a long history of domestic violence with a lack of apparent awareness of the effects of that conflict on the children.
[29] Madam Justice Aitken was sufficiently concerned that she ordered the children be placed in the care of the Children’s Aid Society pending a care and custody hearing. Since that order, while both parents have diligently visited with their children, neither parent appears to have taken steps to address the issues raised by the Society with respect to their conflict; nor have the parties acted appropriately in cooperating with the Society.
[30] In my review of the entire record, it is apparent that both the C.J.O. in Gatineau and the C.A.S. in Ottawa have attempted to work with the parents to facilitate their continued parenting of their children. For reasons that are not entirely clear to me, the parents have continually resisted all intervention by the Society notwithstanding that most of that intervention attempted to assist the parents in becoming better parents and developing a parenting plan whereby the children would be returned to the parents.
[31] This may still be the case and it is anticipated that with the assistance of the assessment, the parties will receive some insight into the manner in which they have been parenting the children as well as providing the Society and the Court with some information regarding the best interests of these children.
[32] It was for these reasons I ordered the assessment and the records disclosure.
Madam Justice B. R. Warkentin
Released: March 4, 2014
COURT FILE NO.: FC-13-2249
DATE: 2014/03/04
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
N.A.-R., born […], 2010 and
I.A.-R., born […], 2011
BETWEEN:
The Children’s Aid Society of Ottawa
Applicant
– and –
V.A. and M.R.
Respondents
DECISION on MOTION
Madam Justice B. R. Warkentin
Released: March 4, 2014