SUPERIOR COURT OF JUSTICE - ONTARIO
KINGSTON COURT FILE NO.: FC-13-579
DATE: 2014/08/06
RE: Family and Children’s Services of Frontenac, Lennox and Addington, Applicant
and
B.H., T.B., and S.F., D.H., Respondents
BEFORE: Mr. Justice Timothy Minnema
COUNSEL:
Ms. A. Hutchinson, for the Applicant Society
and as agent for Mr. D. Haunts, counsel for Respondent T.B.
Mr. P. McCullough, for Respondent D.H.
Mr. B. Bien, for Respondent B.H.
HEARD: July 24, 2014
ENDORSEMENT
Issue
[1] This was a temporary care hearing where the Society was seeking to move two boys out of its interim care and custody and into a kin placement. The mother opposed that plan, and sought to have the children placed with her.
Facts
[2] Ms. B.H. is the mother of the children in this proceeding. On […], 2007, she gave birth to the child Z.B., now age seven. The biological father was a Mr. W.S., deceased. Ms. B.H. led everyone to believe that Mr. T.B. was the father, including him and the child. Mr. T.B. has a history of trafficking and using illegal drugs, including cocaine and crystal meth, and resulting criminal involvement. Ms. B.H., it should be noted, has a very similar history.
[3] On […], 2009, Ms. B.H. gave birth to C.C.J., now age four. Mr. S.F. is his biological father. Mr. S.F. has not taken a role in this proceeding.
[4] On […], 2012, Ms. B.H. gave birth to her third child C.D.J., now age two. Mr. D.H. is her father.
[5] In August of 2013, it was confirmed by DNA testing that Mr. W.S.’s mother Ms. C.S. is the biological paternal grandmother of Z.B., confirming in turn that Mr. T.B., although his parent, is not his biological father.
[6] The Society had previous involvement with all the above noted family members except Ms. C.S. In September of 2013 it became involved with Ms. B.H. related to this application. Ms. B.H. and Mr. D.H. were separated. Ms. B.H. was living in Ms. C.S.’s basement apartment with the children. In October of 2013, she was arrested for trafficking illegal drugs and briefly incarcerated. The Society was contemporaneously investigating Ms. B.H. and noted a number of concerns with her parenting. Along with the drug issues, the boys reported physical discipline. A critical concern was her decision to place the children with a very unsuitable caregiver while she was incarcerated. The children were apprehended.
[7] The Society brought its protection application, which has now been amended a number of times. On October 25, 2013, an order was made placing the children in the temporary care and custody of the Society, subject to access to the fathers. All three children were placed in foster care, but the placement for the boys immediately broke down. The next day, Z.B. and C.C.J. were placed with Ms. C.S., and C.D.J. remained in care. Ms. C.S. had indicated that she could not provide a long term placement, and the plan was to find other caregivers.
[8] On December 5, 2013, an order was made placing C.D.J. in the temporary care and custody of her father Mr. D.H. subject to the Society’s supervision and with access to Ms. B.H. in the Society’s discretion. C.C.J. moved to a new foster home at the end of January, 2014. A home for Z.B. could not be found, and he remained with Ms. C.S. No foster home was available that could accept both boys together.
[9] It appears that around March of 2014, Ms. B.H. and Mr. D.H., who have had an “on/off” relationship over the years, reconciled. For a time they lived around others, such as with Mr. D.H.’s daughter, and then in a shelter. In May of 2014 they moved in together in a home on their own north of Kingston. This triggered a motion by the Society seeking to add new supervisory conditions. One was that, even though these parents were living together, Ms. B.H. was not to be left unsupervised with C.D.J. Ms. B.H. and Mr. D.H. were opposed to this condition and sought a modified version, namely that the requirement for continuous supervision be relaxed for two weeknights to accommodate Mr. D.H.’s work. A without prejudice order was made on May 29, 2014 which included the condition as requested by the Society, and the motion was adjourned to June 19, 2014 to argue that issue.
[10] Around this time, and even a bit before, Mr. T.B., who had engaged with services and with the Society, began having expanded access with Z.B. with a view to transitioning the child to his care. In the context of her facing the prospect of possible incarceration, Ms. B.H. approved of these steps. Mr. T.B.’s access expanded to also include C.C.J. He had stood in parental role to C.C.J. in the past. He began seeing both boys through the Society, and the transition plan changed to include C.C.J. being placed in his care as well. Again, Ms. B.H. approved, indicating only that she would prefer to see C.C.J. move to Mr. T.B.’s care first, as he was in foster care, before Z.B. who was still with Ms. C.S. The Society was proposing to do it in the reverse order. The Society then brought a motion to have the boys placed in the temporary care and custody of Mr. T.B. That motion was made returnable on June 19, 2014 as well.
[11] As noted, Ms. B.H. and Mr. D.H. obtained an appropriate home in May. Shortly afterwards Ms. B.H. learned that she would not be incarcerated as a result of her criminal changes, as she was entering into a diversion program directed at addressing her drug use. This program requires attendance with numerous services and compliance with a number of strict conditions, and is now just starting. As her own counsel put it, there are at least five criminal court programs that make up this process, and it will make Ms. B.H. “a busy lady” with many weekly attendances.
[12] Following these new developments, Ms. B.H. brought a cross motion also for June 19, 2014. She was seeking a return of Z.B. and C.C.J. to her care pursuant to a temporary supervision order on the same conditions as the order regarding C.D.J., with the modified supervision term as noted above.
[13] Mr. D.H. supported Ms. B.H.’s motion. Mr. T.B. supported the Society’s motion. I note that before bringing her motion, Ms. B.H. did not have anything bad to say about Mr. T.B. She had disparaged Mr. D.H. in her answer. However, she has since been critical of Mr. T.B.’s parenting skills and supportive of Mr. D.H. It needs to be noted that both Mr. D.H. and Mr. T.B. appear to be doing a good job at this point as parents. I also note that other than Ms. B.H., and her only just recently, no one else has criticized Mr. T.B.’s parenting, and indeed reports from the Society, Ms. C.S., and even the children, are all positive. Ms. B.H., it seems, has adjusted her sights to align them with her position on these motions.
[14] At the court appearance on June 19, 2014, therefore, all the motions were before the court at the same time. The Society was successful in obtaining all the supervisory conditions it requested regarding C.D.J., including that Ms. B.H. not be left unsupervised with the child at any time. An order was also made, on consent and without prejudice, that Mr. T.B. could have an extended visit with C.C.J. and Z.B, and they have been living with him since then. The motions regarding the placement of C.C.J. and Z.B. were adjourned to July 10, 2014, without prejudice. On that date those motions were adjourned again, also without prejudice. Counsel had estimated the hearing would take one hour to argue, while the court identified that in its view three hours would be required. The argument before me indeed took almost exactly three hours.
Law and Analysis
[15] The parties agreed that this was a temporary care hearing under ss. 51(2) and (3) of the Child and Family Services Act, R.S.O., c. C.11, as amended (“CFSA”). As set out above, Ms. B.H. had charge of the children before they were apprehended. Therefore, per s. 51(3) of the CFSA, I cannot make an order placing Z.B. and C.C.J. out of her care unless I am satisfied that there are reasonable grounds to believe that there is a risk that the children are likely to suffer harm and they cannot be protected adequately by a Supervision Order.
[16] While the mother has argued that there is no risk, she is a drug abuser with very recent criminal involvement who is in the early stages of recovery. She beat her habit previously and her current struggles relate to a substantial relapse. There is no dispute that she is very committed to addressing the issues. However, despite the Society seeking to facilitate and pay for hair drug testing, Ms. B.H. has refused to provide a sample. There is currently no reliable evidence on how long she has been abstinent. I note that on June 19, 2014, a little over one month before this motion was heard, the court was not even prepared to grant her brief periods of unsupervised access with C.D.J. Other than Ms. B.H. just starting with the diversion program, very little has changed since then.
[17] Mr. D.H.’s counsel aptly noted that the court needs to keep an eye on the long-term implications of any interim order. In that vein, I note that Ms. B.H.’s court sanctioned recovery plan appears to be quite intensive. In my view to now add, on top of that, the responsibility of her caring for two young and sometimes challenging boys would not only create a direct risk for the children, but could also put her own recovery in jeopardy and thereby negatively impact both the possibility and timing of the children returning to her care. Mr. T.B. is clear that while he is attached to the children and is looking out for their best interests in having them placed with him, he still supports their being in Ms. B.H.’s care when she can meet all their needs.
[18] Given all the above, I find that the first part of the test regarding the risk of harm has been met by the Society.
[19] The above reasons also speak to why the children cannot be adequately protected in Ms. B.H.’s care by way of a supervision order, the second part of the test. As noted, Ms. B.H. has proposed an order with the same conditions that are in place for two-year-old C.D.J. She argued that, as the Society is comfortable with those terms, it should also be comfortable with the same terms for the two older boys and C.D.J. together. However, there is a huge difference. The supervision order for C.D.J. places her in Mr. D.H.’s custody. The request here is to place the boys in Ms. B.H.’s custody. When I pointed this out, I was urged to make an order granting Ms. B.H. custody while at the same time imposing strict supervisory conditions on the parties that would in effect give Mr. D.H. “defacto” custody. However, Mr. D.H. has not pled custody of the boys in these proceedings. Further, I cannot make an order that is inconsistent on its face. I cannot see how, in a child protection proceeding, Ms. B.H. can have both “care and custody” of the children and at the same time be restricted to only supervised access. In my view the supervisory terms being proposed by Ms. B.H. are neither reasonable nor appropriate, and cannot adequately protect the children.
Access
[20] The trial is quite some time away, and the mother is hopefully on the road to recovery. I expect her to fully advise the Society of her participation and progress in the diversion program. The Society, in turn, is expected to continue to exercise its discretion responsibly and fairly with respect to access, including expanding access and relaxing the supervisory conditions as and if appropriate. Even though I am granting the Society’s motion to place C.C.J. and Z.B. temporarily with Mr. T.B., the objective is still a safe return of the children to the person who had charge of them prior to the apprehension (see s. 57(3)).
Decision
[21] The requests in paragraphs 2 and 3 of the Society’s motion are granted. Ms. B.H.’s motion is dismissed. No order as to costs.
Mr. Justice Timothy Minnema
Date: August 6, 2014
2014 ONSC 4594
KINGSTON COURT FILE NO.: FC-13-579
DATE: 2014/08/06
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Family and Children’s Services of Frontenac, Lennox and Addington, Applicant
AND
B.H., T.B., and S.F., D.H., Respondents
BEFORE: Mr. Justice Timothy Minnema
COUNSEL: A. Hutchinson, for the Applicant and
as agent for D. Haunts, for T.B.
P. McCullough for D.H.
B. Bien for B.H.
ENDORSEMENT
Mr. Justice Timothy Minnema
Released: August 6, 2014