CAS Niagara v. C.L. and E.V.

CITATION: 2014 ONSC 1462

COURT FILE NO.: 2/14

DATE: 2014-03-06

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Children’s’ Aid Society of the Niagara Region

AND: C.L. (mother)

AND: E.V. (father)

BEFORE: Mr Justice Ramsay

COUNSEL: Jason Witteveen for the Society; Marlene VanderSpek for the mother; Bernadette M. McCartney for the father

HEARD: 2014-03-04

ENDORSEMENT

[1] The Society moves for a temporary order under s. 51 of the Child and Family Services Act identical to the temporary order made without prejudice by Scott J. on January 6, 2014. That order places the children in the care of their mother subject to conditions involving supervision by the Society, and gives access to the father in the discretion of the Society.

[2] There are three children in question. The parents began living together in 2006. The mother had two children, a son who is now 13 and a daughter who is now 8. They had a daughter in 2007. She is now 7 years old. The father acted in a parental role toward all three children. The older daughter knows no other father. Her biological father was released from prison six months ago and has moved “up north.” He has no contact.

[3] The current involvement with the Society began in 2011 when the parents were having trouble coping with the son. By age 11 he was violent toward his sister and defiant toward his parents. He has also learned how to complain to the Society when things do not go his way. He showed no respect for his parents and they were not equipped to deal with such a challenging child. Evidence from the social worker shows at least one inappropriate comment by the father to the son. At the same time, affidavits from two neighbours or friends, T.M. and J.H., reveal that the mother was in the habit of using abusive and demeaning language to the children.

[4] The parents have their own challenges. The mother told the social worker that she has been diagnosed with borderline personality disorder. That seems consistent with some of the conduct in evidence. The father was made a Crown ward at age 6. He was abused by his father and then in the foster home. He was a serious behaviour problem in his teens. At age 21 a daughter with a previous partner was made a Crown ward. There is a comprehensive parenting capacity assessment in the file from those proceedings. Simply summarized, the father was far too immature even at 21 to parent a child. On the record as a whole I conclude that he is still immature for his age (35), but that he has matured since age 21. His employment record is not extensive due to physical health problems, but he has achieved the highest level in Scouting, he has gone to school to learn to be a chef de cuisine, he works part-time in that capacity and he has been involved in a significant way in raising the children.

[5] The main complaint about the father’s recent behaviour is his inability to control his temper. It mainly started when the son began acting out. The entire household got sensitised and the mother and children began feeling as if they were walking on eggshells. When the father loses his temper he yells and makes intimidating remarks. He has never actually used violence to the mother, the children or the Society’s personnel. Based on some of the comments he has made on these various occasions, I think that he overreacts to the Society personnel because of emotional wounds from his previous dealings with the Society. The Society personnel have acted appropriately. But through no fault of the Society’s, their very involvement adds great stress to the father’s life. He also needs to be careful to manage the medicine that he takes for depression. And his position is complicated by the physical health problems, including a recent heart attack. I believe his heart condition is being controlled by medicine.

[6] On August 9, 2013 the mother left the father. She and the children were taken to a shelter by a member of the Society’s staff. The father reacted poorly. Among other things, he made a number of unfounded complaints against the mother and others. There is reason to believe that he has involved the younger daughter in the parental custody dispute. She has come home crying. On the other hand, she told the worker that she wanted to spend time living with both parents.

[7] The father moved for custody and access under the Family Law Act. On August 22, 2013 Walters J. ordered that the youngest daughter should reside with each parent week about until the return of the motion. Walters J. also ordered that the father have access to the older daughter for one overnight visit. The Family Law Act motion was adjourned and has not yet been heard.

[8] On December 4, 2013 a new worker met with the parents and the youngest daughter. The father was agitated. He told the daughter to tell the worker what she had told him about one of his various allegations. The worker reminded him that investigations are not conducted this way. The father escalated things to the point that he said loudly, in the presence of the child, “She [the child] should never trust you guys because as a child I was in your foster care and was repeatedly abused and raped and workers like you did nothing about it.” It was the worker who had brought up the subject by telling the father that his previous advice to his daughter not to trust FACS was not helpful.

[9] In further meetings with workers, the father was agitated but he demonstrated that he could calm down enough to make some progress. He was upset that he had not had further access to the second daughter. It became apparent, however, that he was resorting to the younger daughter to advocate on his behalf. The Society was right to be concerned about the potential for emotional harm. On December 28, 2013 it came to the Society’s attention that the father had complained about a bruise on the younger daughter allegedly caused during a visit to the mother. The police found no evidence to substantiate the complaint. Shortly thereafter the Society brought the present proceeding.

[10] The Child and Family Services Act provides:

51. (1) The court shall not adjourn a hearing for more than thirty days,

(a) unless all the parties present and the person who will be caring for the child during the adjournment consent; or

(b) if the court is aware that a party who is not present at the hearing objects to the longer adjournment.

(2) Where a hearing is adjourned, the court shall make a temporary order for care and custody providing that the child,

(a) remain in or be returned to the care and custody of the person who had charge of the child immediately before intervention under this Part;

(b) remain in or be returned to the care and custody of the person referred to in clause (a), subject to the society’s supervision and on such reasonable terms and conditions as the court considers appropriate;

(c) be placed in the care and custody of a person other than the person referred to in clause (a), with the consent of that other person, subject to the society’s supervision and on such reasonable terms and conditions as the court considers appropriate; or

(d) remain or be placed in the care and custody of the society, but not be placed in,

(i) a place of secure custody as defined in Part IV (Youth Justice), or

(ii) a place of open temporary detention as defined in that Part that has not been designated as a place of safety.

(3) The court shall not make an order under clause (2) (c) or (d) unless the court is satisfied that there are reasonable grounds to believe that there is a risk that the child is likely to suffer harm and that the child cannot be protected adequately by an order under clause (2) (a) or (b).

(3.1) Before making a temporary order for care and custody under clause (2) (d), the court shall consider whether it is in the child’s best interests to make an order under clause (2) (c) to place the child in the care and custody of a person who is a relative of the child or a member of the child’s extended family or community.

(3.2) A temporary order for care and custody of a child under clause (2) (b) or (c) may impose,

(a) reasonable terms and conditions relating to the child’s care and supervision;

(b) reasonable terms and conditions on the child’s parent, the person who will have care and custody of the child under the order, the child and any other person, other than a foster parent, who is putting forward a plan or who would participate in a plan for care and custody of or access to the child; and

(c) reasonable terms and conditions on the society that will supervise the placement, but shall not require the society to provide financial assistance or to purchase any goods or services.

(4) Where the court makes an order under clause (2) (d), section 62 (parental consents) applies with necessary modifications.

(5) An order made under clause (2) (c) or (d) may contain provisions regarding any person’s right of access to the child on such terms and conditions as the court considers appropriate.

(6) The court may at any time vary or terminate an order made under subsection (2).

(7) For the purpose of this section, the court may admit and act on evidence that the court considers credible and trustworthy in the circumstances

[11] The Society seeks an order under s.51 (2) (b) placing the children with their mother, who is the person who had charge of the child immediately before the intervention, with access to the father in their discretion. That discretion will require supervised access for some further time until the Society is satisfied that the father can behave himself in interactions with them, the mother and the children. The mother agrees with the Society’s position.

[12] The father submits that the two daughters should be placed with both parents, week about, but does not seek access to the son. The father recognizes that the boy’s wishes should be respected given his age.

[13] In the case of the older two children, the mother is the person who had charge at the time of the intervention. In the case of the younger daughter, both parents had charge under the order of Walters J.

[14] It appears likely that the son will be found to have suffered the sort of emotional harm that is described in s.37(2)(f)(iv) of the Act because of his aggressive behaviour. The daughters do not appear to have suffered emotional harm of the sort described in paragraph (f), but there is a prospect that they will be found to be at risk. I also think that they are at risk of physical harm from their brother.

[15] The paramount principle to be applied is the best interest of each child, taking into account the principles of preservation of family integrity where possible and use of the least disruptive appropriate course of action, and the factors set out in ss.24(2) and 37(3) of the Act.

[16] The son should stay in the care of his mother subject to conditions, with access to the father in the Society’s discretion, the exercise of which will take into account the son’s wishes.

[17] As far as the younger daughter is concerned, I do not think that supervised access is necessary. The parents both have deficits that must be worked on. It is in the child’s best interest to have a relationship with both parents. The less the father has to deal with the mother and the Society, the less agitated he will be. Both parents have been significant caregivers to this child. I think that she should remain in the care of both parents subject to supervision by the Society. I also think she should have a break from her brother. I think she is at much at risk in one home as the other.

[18] As far as the older daughter is concerned, I recognize that the father is her only psychological father and that most children like to be treated equally with their siblings. Those considerations might lead to week about residence. The fact remains, however, that she is not the father’s biological or adopted child and she has not seen much of him for several months. Finally, the father is not the person who had charge before the intervention. I think that the older daughter should be placed with her mother, with access by the father. I do not see a need for supervised access.

[19] In the case of both daughters, I accept the suggestion that the turnover should be at the beginning and end of the school day, so that the parents will not always have to meet during the exchange.

[20] The plans of care are contained in the continuing record, the Society’s at tab 5, the mother’s at tab 7 and the father’s at tab 11. I recognize that the father has a new partner in the house. With respect to the son I am applying the Society’s plan of care. With respect to the older daughter I am essentially applying the Society’s plan of care. With respect to the younger daughter I am essentially applying the father’s plan of care.

[21] A temporary order will go in the following terms:

a. With respect to the son, in terms of paragraph 1 of the prayer for relief in the Society’s notice of motion of January 2, 2014, provided that conditions be added to subject the mother to the same obligations as those of the father contained in paragraph 1 (g), (h) and (j) of the prayer for relief, and with provision for access to the father in the discretion of the Society, which in exercising its discretion will consider the wishes of the son;

b. With respect to the older daughter, in the same terms, but with provision for access to the father from Friday at close of school (or 3:30 pm if school is not in session) to Monday at commencement of school (or 9:00 am if school is not in session) on every weekend during which the younger daughter is residing with the father;

c. With respect to the younger daughter, an order placing the child with the mother and the father, with the same conditions as with the other children, and providing that the child shall reside with the father from Friday at close of school (or 3:30 pm if school is not in session) to Friday at opening of school (or 9:00 am if school is not in session) every other week, commencing at close of school or 3:30 pm on Friday, March 14, 2014;

d. The father is responsible for transportation when the turnover takes place on a day when school is not in session. On those occasions the children will be picked up and delivered at a time and place directed by the Society.

e. The application is adjourned to the assignment court of March 13, 2014 at 2:30 pm.

[22] I assume that no one is asking for costs. If I am wrong, the parties may get a date from the trial coordinator to speak to costs.

[23] To the extent that it deals with custody and access, the Family Law Act motion is stayed pending the disposition of the present proceeding.

J.A. Ramsay J.

Date: 2014-03-06