SUPERIOR COURT OF JUSTICE – ONTARIO

FAMILY COURT

COURT FILE NO.: C390/13-01

DATE: June 5, 2014

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT

RE: Children’s Aid Society of London and Middlesex, applicant

AND:

I.C., J.R.A. and A.A., respondents

BEFORE: MITROW J.

COUNSEL:
Christine McLeod for the Society

Brenda D. Barr for I.C.

J.R.A. in person

A.A. not appearing

Robert Ninham for the Children’s Lawyer

HEARD: May 30, 2014

ENDORSEMENT

[1] The Society and the respondent, I.C. (“the mother”), bring a motion to place the children, A.A., age 8, and J.A., age 7, in the temporary care and custody of the mother subject to Society supervision. This is also supported by Mr. Ninham on behalf of the children.

[2] All parties have appeared before me a number of times as I have remained seized of the recent motions. The background of the stormy relationship between the parents and the negative impact of the parents’ conflict on the children is summarized in my endorsement released December 19, 2013, at which time it was ordered that the children remain in the temporary care and custody of the father, J.R.A. (“the father”), subject to Society supervision with access as set out for mother.

[3] At the time of that order, the Society was supporting the interim supervision order in favour of the father.

[4] The father then relinquished the care of the children and a further temporary care and custody motion came on before me on March 21, 2014. All parties except the father sought to place the children with the mother pursuant to an interim supervision order.

[5] At that time, I found that the children continued to be in emotional distress and I ordered the children into care with access to both parents. Pursuant to the order, the mother’s access was more than the father’s access.

[6] The temporary care and custody hearing was then adjourned before me to May 30, 2014 for the purpose of reviewing the order made March 21, 2014. The order also required various information to be filed, including reports from Dr. Bell and the children’s pediatrician, Dr. McNeill.

[7] I agree that since the last order the risk of emotional harm to the children has subsided. In particular, the evidence supports a preliminary conclusion at this time that the mother has made very positive strides in addressing the issues previously identified. Dr. Bell’s current report dated May 28, 2014 (Dr. Bell is a certified play therapist, among her other qualifications) indicated that both children now feel safe in their mother’s home. This report was in marked contrast to the children’s negative feelings as to whether their mother’s home was a “safe” place as set out in an earlier report of Dr. Bell.

[8] It is also apparent from the evidence that the mother acted appropriately when the children were apprehended from her care pursuant to the order dated March 21, 2014. The mother has a positive relationship with the Society worker and this assists in promoting an improved environment for the children.

[9] In her recent report, Dr. Bell notes that the period that the children were in foster care has provided an opportunity for third party observations of the children’s adjustment at home and school when they were removed from their parents’ conflict and placed in a neutral and supportive environment (see page 6). Of concern, as identified in Dr. Bell’s updated report is that the child A.A. has ongoing anxiety regarding her perception of Ms. A.A.’s (A.A.’s stepmother) anger towards A.A.

[10] Dr. Bell states that the children’s recent acting out behaviours are likely reactions to family stressors and custody and access issues. Dr. Bell indicated she remains concerned about the cumulative impact of the children being exposed to parental conflict or the children experiencing further placement disruption (see page 7).

[11] Although Dr. Bell commented that both mother and father have presented as genuinely loving their children and wanting them to be happy and successful in life, Dr. Bell expressed a concern about the parents having a limited understanding of how exposing their children to their ongoing mistrust and animosity has emotionally harmed them (see page 7).

[12] A further positive step taken by the mother is to engage the services of Dr. Louise Sas, a very experienced psychologist, in custody and access issues.

[13] Dr. Bell noted in her report that she fully supports Dr. Sas’ involvement in this matter and Dr. Bell noted in her updated report that the children’s counselling needs now are better served through family therapy with Dr. Sas.

[14] During argument on the motion, the father agreed that he would be prepared to share the costs of Dr. Sas’ involvement in this matter. The father submitted that it might be preferable to have a therapist who has not been previously involved (the father was indicating that Dr. Sas had provided some counselling to the mother and would not be independent).

[15] Given the evidence on this matter, I do not perceive any conflict. In her affidavit, Dr. Sas indicated that she is prepared to see the children for therapy and to see the father as well regarding the children’s emotional needs, “with the goal of ensuring smooth transitions, reduced stress and healing.”

[16] The father did in fact sign consents for information to be released to Dr. Sas so she could better understand the background of this matter.

[17] The father submitted that the children should remain for some further period of time in Society care but I do not accept that submission. I find that the appropriate order pursuant to s. 51 is to place the children in the mother’s care subject to an interim supervision order with terms and conditions.

[18] The court was urged by the mother and the Society to consider eliminating the father’s overnight access. Dr. Bell had made a recommendation that the court consider a request of the children to have day visits rather than overnight visits with their father until the children are reporting an improved relationship with their stepmother, Ms. A.A.

[19] I do note Dr. Bell did clarify in her report that she has had little involvement with either parent and cannot speak directly to parenting capacity and that any recommendations made by Dr. Bell are based on her clinical work with the children. Dr. Bell is not doing a custody and access assessment, as she has acknowledged.

[20] It is critical and in the children’s best interests for there to be continual oversight of this case by an experienced professional such as Dr. Sas. The children need to have some therapeutic involvement. It is clear from Dr. Bell’s reports that the children have benefited substantially in having therapeutic sessions with Dr. Bell.

[21] There was some recent evidence of the parents cooperating in having an access exchange at the physical location of the Merrymount Children’s Centre (although not part of Merrymount’s actual supervised access exchange program) and both parents indicate this was the first time in a long time that they were able to exchange the children without acrimony. Also, the father is to be commended because he relinquished some of his access weekend which fell on Mother’s Day and allowed the children to be with their mother for a portion of Mother’s Day.

[22] The access order set out below continues the father’s overnight access for now. However, it is important for the father and Ms. A.A. to engage with Dr. Sas in order to deal with any anxiety that the children are expressing in attending for visits at the father’s home.

[23] It should be noted, in fairness to Ms. A.A., that although she is a party to this court case, she has not filed any material setting out her response as to what the children were reporting to Dr. Bell regarding Ms. A.A.

[24] During the hearing of the motion, the parties agreed that 9:30 a.m. August 6, 2014 is acceptable for a “check-in” date should the court wish the parties to return and to provide an update. The “check-in” date was discussed more in the context of a situation where the children were not returned to the mother pursuant to an interim supervision order.

[25] However, it is in my view important for the mother and father to be keenly aware that their conduct and actions remain subject to court oversight. Accordingly, I require the parties to return to court on August 6, 2014.

[26] All the respondents need to know that they have to cooperate with Dr. Sas and abide by the terms of the order set out below.

[27] The attendance at that date will allow the court to assess the progress of the children in the mother’s care, whether there have been any issues while in the mother’s care or during access, whether all the respondents have been compliant with the order and whether there should be an expansion of the father’s access. The respondents need to be aware that the court can order the children back into the Society’s temporary care if there is evidence to justify such an order.

[28] There was a concern raised by the father that the children’s immunizations are not up to date. The mother states the immunizations are up to date. However, all parties agreed to an order that the mother shall take the children to their physician to ensure the immunizations are up to date and that has been added as a term of the order.

ORDER

[29] For reasons set out above, a temporary order shall issue as follows:

1. The children shall be placed in the temporary care and custody of the mother subject to Society supervision and terms and conditions as per the order sought by the Society filed as Ex. 1, and subject to the following additional condition:

m) that the mother, I.C., shall immediately make an appointment with the children’s physician, and ensure that the children’s immunizations are up to date, and if the immunizations are not up to date, the mother shall ensure the children are immunized as directed by the children’s physician and the mother shall provide confirmation of this to the Society and to the father.

2. The father shall have interim access to the children, J.A. and A.A., as follows:

a) alternate weekends from Saturday at 10:00 a.m. to Sunday at 3:00 p.m. (to be extended to 7:00 p.m. during July and August);

b) one weekday each week up to four hours to be arranged between the mother and the father or, failing agreement, as directed by the Society;

c) during July and August the father shall have one extra weekday visit for four hours during the week following the children’s access weekend with the mother, as arranged by the mother and the father or, failing agreement, as directed by the Society;

d) such other access as may be approved by the Society in consultation with the mother, the father and Dr. Sas; and

e) the father shall always be present during the access visits unless otherwise permitted by the Society in writing.

3. The access exchanges shall take place on the property of the Merrymount Children’s Centre in London, Ontario. The Society may direct that the access exchanges shall be supervised by requiring the mother and the father to enroll in the Merrymount supervised access exchange program or, alternatively, require that the access exchanges shall occur at the Society supervised access location and, if the Society directs, that access exchanges should be supervised, as many of the access exchanges as possible shall be supervised having regard to the hours of operation of the access supervision facility and the father’s access time.

4. All parents (and for the purpose of this paragraph “parents” means I.C., J.R.A. and Ms. A.A.) shall do what is ordered below in furtherance of the goals and objectives as described below:

a) to ensure that the children are seen by Dr. Sas for therapy as recommended by Dr. Sas;

b) the purpose of the therapy shall include assisting the children in relation to any issues they may have as a result of the separation of the mother and father, the conduct of the mother and father, and transitioning between the mother’s home and father’s home;

c) to assist the parents in identifying and pursuing appropriate strategies to lessen and eliminate any negative effects on the children as a result of any conflicts between the parents;

d) the parents shall meet with Dr. Sas as reasonably required by Dr. Sas to address any aspect of the children’s therapy and to address any aspect of the parents’ conduct that may be contributing to the children’s anxiety or any other consequences negatively affecting the children;

e) the parents shall be responsive to all reasonable recommendations made by Dr. Sas; and

f) the parents shall execute all consents reasonably required by Dr. Sas.

5. The fees of Dr. Sas shall be shared equally by the mother and the father and the fees shall be paid promptly by the mother and the father.

6. By July 31, 2014, Dr. Sas shall provide an interim report regarding her involvement in this matter and any recommendations and the Society shall ensure that this report is filed in the continuing record.

7. The Society shall immediately provide Dr. Sas with the endorsement and this order.

8. The children shall not be removed from the Province of Ontario.

9. The children shall remain within a 200 kilometre radius of London, Ontario unless otherwise agreed to by the father and the mother and approved, in writing, by the Society, but this paragraph does not permit removal of the children from the Province of Ontario.

10. The motions are adjourned to 9:30 a.m. Wednesday, August 6, 2014, before me, to receive an update from the parties as to the implementation of this order, to address any issues that have arisen, to address any increases in the father’s access and to set a settlement conference date. Prior to this court date, each party may file additional brief affidavit material dealing only with any matters arising subsequent to the date of this order.

11. Until the next court date, I remained seized with all motions in this case, except in the case of an emergency if I am not available to hear the motion.

“Justice Victor Mitrow”

Justice Victor Mitrow

Date: June 5, 2014