SUPERIOR COURT OF JUSTICE - ONTARIO

2014 ONSC 4595

KINGSTON COURT FILE NO.: FC-09-55

DATE: 2014/08/06

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Family and Children’s Services of Frontenac, Lennox and Addington, Applicant

and

J.L.A. and K.C.W., Respondents

BEFORE: Mr. Justice Timothy Minnema

COUNSEL: Ms. A. Hutchinson, for the Applicant Society

Mr. P. McCullough for J.L.A.

HEARD: July 25, 2014

ENDORSEMENT

Issues

[1] This was the mother’s motion for specified access and for two access visits observed by Dr. D. Richardson.

Facts

[2] Ms. J.L.A. was born on […], 1990, and has had five previous children. All have been permanently removed from her care. A summary of the background facts is found in the Ruling on Motion for Summary Judgment dated March 14, 2014, and in the Statement of Agreed Facts dated March 31, 2014, both of which relate to Ms. J.L.A.’s fifth child S.W. who was made a Crown ward.

[3] Her sixth child K.R.W., who is the subject of these proceedings, was born on […], 2014. He has the same father as did S.W. Ms. J.L.A. claims that she and the father separated prior to the child’s birth. The father did not attend this hearing, and I am unaware of him having access to the child or having filed an answer. Ms. J.L.A.’s plan is to care for K.R.W. on her own.

[4] The Society apprehended K.R.W. upon his birth. Just prior to that, in March of this year, the mother’s home was in a deplorable state when she had a dog and nine puppies in her care that she was not properly attending to, and she surrendered all but one puppy to the Ontario Society for the Prevention of Cruelty to Animals (“OSPCA”). The OSPCA worker involved wrote to the Society indicating that she was concerned for the welfare of Ms. J.L.A.’s unborn child. Ms. J.L.A.’s family physician at the time indicated to the Society worker that Ms. J.L.A. was not able to care for herself and that he hoped that there was movement to apprehend the child upon its birth. There was also the past history of the five previous children, and a fairly recent Family Court Clinic Assessment dated February 25, 2014, noting that Ms. J.L.A. presented as an undue risk to her child S.W.

[5] On June 11, 2014, an order was made for interim care and custody of K.R.W. to the Society with access to Ms. J.L.A. in the Society’s discretion. That order was made “without prejudice to the mother requesting additional access.” The Society created a schedule for access, namely at its office for ninety minutes on Mondays and Fridays of each week, supervised. After this motion was served, the Society indicated that it was doubling the Monday visit to three hours, commencing on Monday, July 28, 2014.

[6] The requests by the mother in her motion are that her supervised access be specified as three visits per week for 90 minutes or more, and that there be two “special access” visits of one hour each to be observed by Dr. D. Richardson, one in a clinical setting and another in her home.

[7] There was only one affidavit filed by the Society in response to the mother’s motion. Of the ten scheduled visits up to the date of that affidavit, the deponent worker was responsible to supervise five. Ms. J.L.A. missed three of those five. Ms. J.L.A. explained in her affidavit that her hydro was cut off for one so her alarm did not work, for another she was confused about the start time, and for the third visit she was very ill. She indicated that she attended the two scheduled visits after the worker’s affidavit. There was no evidence about the other five previous visits.

[8] The purpose of the review by Dr. Richardson is unclear. Ms. J.L.A. says in her affidavit that she has “re-engaged” him - she had gone to him before - to determine why she had such a poor record of attending access visits and appointments with health professionals in the past. She points out that Dr. Richardson is a physician who treats teenagers and young adults. Ms. J.L.A. is now 24 years old. She attaches his Curriculum Vitae. It indicates that he has a general paediatric practice, as well as a consultation practice in child and adolescent counselling. Ms. J.L.A. indicates that Dr. Richardson is not a psychiatrist, but adds,

He can and is prepared both in my home and in a clinical setting to assess me by observation of me and … [K.W.] and perhaps potentially pinpoint what medical or psychological issues I may have and either engage in treatment of me himself or refer me as soon as possible to someone who can and should treat me.

[9] Ms. J.L.A. noted that in the previous s. 54 assessment the author, clinical psychologist Dr. Robert C. Rowe, stated that the risks in her caring for a child “… can be decreased by targeting supports, lifestyles, stressors, and temperament for change.” She argues that “on this basis a targeting-type assessment is crucial for both myself and the child” and then she refers to a letter Dr. Richardson wrote to her lawyer, to his C.V., and to an article he wrote on attachment.

[10] Dr. Richardson, per the mentioned letter, has a completely different understanding about the purpose of the two requested visits. He says to the mother’s lawyer,

At the conclusion of these two hours of assessment I would be in a better position to answer your question regarding the quality of attachment between … [Ms. J.L.A.] and her baby.

[11] The Society notes that attachment and attachment assessments are not mentioned in Dr. Richardson’s C.V., and that his article was published in ‘The Monthly News in Adolescent Medicine’ which he edits himself and is not peer reviewed.

Analysis

[12] Section 51(5) of the Child and Family Services Act, R.S.O., c. C.11, as amended, (“CFSA”) reads as follows:

51(5) ACCESS – 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.

Regular Access

[13] Although the mother is seeking three access visits as opposed to two, the total time being sought is roughly the same as what is now being provided. In argument, the mother’s counsel complained that allowing the Society any discretion at all gives it too much power in its role as a litigant, and access should therefore be specified by the court. The Society relied on the decision of Children’s Aid Society of Algoma v. C.B., [2003] O.J. No. 4735 (O.C.J.) for the proposition that orders that allow some discretion to the Society to decide certain aspects of parental access such as location, duration, frequency, time and supervision are appropriate. In the circumstances of this case, I agree. The above facts establish that the temporary discretion that has been granted to the Society has thus far been exercised responsibly and fairly. The mother’s request to have her weekly access changed and specified by the court is dismissed.

“Special Access”

[14] At first glance the request for observed access by Dr. Richardson seems innocuous. It is just two additional visits. Ms. J.L.A. argued it involves minimal disruption to the child and can easily be accommodated by the Society. She maintained the Society in opposing her request is attempting to deprive her of an opportunity to obtain possible evidence that could help her overcome her very difficult history. Simply put, her position was that there is no good reason not to grant her request.

[15] The request by the mother cannot be an attempt to gain additional access through the back door, or to simply make a point about fairness. The Society, however, was not opposing the motion on that basis or even on the basis of inconvenience. Its position, rather, was that there was no clear purpose or need for Dr. Richardson to observe these visits. It is not even established that he is an expert in the identified fields. Simply put, it maintained that there is no good reason to grant the request.

[16] As we are only dealing with the mother’s right of access, I find that the test is still that of appropriateness per s. 51(5) above. In Worthington v. Worthington, 2000 22469 (ON SC), [2000] O.J. No. 4853 (Ont. S.C.J.) the court held that access is only to be ordered where there will be a benefit to the child; it is not sufficient for the non-custodial parent to show that access will not harm the child. That case is often cited, including in child protection proceedings. For example in Children’s Aid Society of Hamilton v. K.F., 2014 ONSC 576, [2014] O.J. No. 429 (Ont. S.C.J.), the court referred to it noting that children are not to be used as therapeutic tools by their parents.

[17] Clearly from the mother’s point of view, she wants this special access to find out what is wrong with her. However, the connection between that objective and her needing to be observed with K.R.W. escapes me. Indeed, Dr. Richardson made no mention of that connection; rather he thought he was assessing attachment. His expertise to do so was questioned by the Society, and indeed there is no evidence before me, one way or the other, as to whether he is qualified to do an attachment assessment or whether there is a special designation or level of training that is required. Nothing in Dr. Richardson’s own article suggests that such an assessment would be of any benefit at this point in time. The relationship in question here is between a child who is only one month old and his access parent.

[18] Without being convinced or even understanding how the access as proposed will benefit the child, and guided by the cases I have cited, I am not inclined to make the order requested.

[19] As it was argued, I just note the following. Access and contact between a child and parent is routinely observed by professionals for the purpose of court ordered assessments. Societies at times do their own evaluations and assessments. It is obvious to me that in a proper case fairness dictates that a parent’s expert be permitted the same opportunity to observe. However, agreement between the parties on the choice of a mutual expert remains the preferred route.

Decision

[20] The mother’s motion is dismissed. The access shall remain in the Society’s discretion. This is not an appropriate case for costs.

Mr. Justice Timothy Minnema

Date: August 6, 2014

2014 ONSC 4595

KINGSTON COURT FILE NO.: FC-09-55

DATE: 2014/08/0

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: Family and Children’s Services of Frontenac, Lennox and Addington, Applicant

AND

J.L.A., Respondent

BEFORE: Mr. Justice Timothy Minnema

COUNSEL: A. Hutchinson, for the Applicant

P. McCullough for J.L.A.

ENDORSEMENT

Mr. Justice Timothy Minnema

Released: August 6, 2014