ONTARIO
SUPERIOR COURT OF JUSTICE
This is a case under Part III of the Child and Family Services Act and is subject to subsections 45(8) of the Act. This subsection and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply with subsection 45(8), read as follows:
45.-(8) No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.
85.-(3) A person who contravenes subsection 45(8) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
COURT FILE NO.: C989/10
DATE: 2014-09-30
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Children’s Aid Society of Hamilton
Applicants
– and –
C.S. (mother)
And
M.E. (maternal grandmother)
Respondents
Suranganie Kumaranayake
Counsel for the Applicants
Susan Sullivan
Counsel for the Maternal Grandmother
HEARD: September 26, 2014
the honourable mr. justice pazaratz
- This is a motion by M.E. to adjourn a scheduled Crown wardship trial because she is in jail. She wants time to:
a. Get out of jail, and
b. Deal with her personal issues, to bolster her prospects of having two young children returned to her care.
- The Children’s Aid Society of Hamilton (“the Society”) opposes the motion, arguing that while delay may be strategically beneficial for M.E., the focus and priority in child protection matters must be the children -- and in this case any further delay will prejudice the best interests of the children.
THE PARTIES
The children are O.S., age 7 and L.R.S., age 6.
The relevant adults:
a. M.E. is O.S.’s mother and L.R.S.’s grandmother.
b. M.E.’s deceased daughter C.S. was L.R.S.’s mother. L.R.S.’s father is not involved in the process.
c. L.S. is M.E.’s estranged partner. He is O.S.’s father and L.R.S.’s grandfather. He is no longer involved in this litigation.
d. M.E. also has an adult daughter V.R.S. and an adult son CH.S.
e. Finally, S.T. was M.E.’s aunt. S.T. died in 2009 while living in M.E.’s home.
BACKGROUND
L.R.S.’s mother C.S. had many, many personal problems. On November 14, 2011 Justice Chappel made a final order granting custody of L.R.S. to the maternal grandmother M.E. O.S. was still in M.E.’s custody. The two girls are of similar ages and they came to be raised as sisters.
In July 2012 both girls were apprehended from M.E.’s care. The July 31, 2012 protection application commenced by the Society requested Society wardship for a period of six months. Among the concerns:
a. The Society had regular involvement with M.E. since October 2010 with respect to lack of supervision; substance abuse; conditions of the home; domestic violence; and a lack of consistent cooperation.
b. On June 23, 2012 L.S. had assaulted M.E. and their son CH.S. L.S. was ultimately charged with mischief, assault and breach of probation.
c. M.E. was unable to parent the children as she had been arrested after admitting to disposing of the dead body of her aunt S.T. She also admitted to receiving S.T.’s ODSP payments for three years after S.T.’s death. There was an ongoing homicide investigation conducted by Hamilton police service. M.E. was subsequently charged with fraud and committing an indignity to human remains.
After M.E. was released on bail, on July 31, 2012 Justice Steinberg made a temporary order that both L.R.S. and O.S. be returned to the custody of M.E. pursuant to terms of supervision by the Society. The order specified that L.S. was not to reside in the home and his access to the children was to be supervised and in the discretion of the Society.
On November 26, 2012 Justice Brown made final orders (pursuant to minutes of settlement) placing each child in the care of M.E. subject to supervision by the Society for a period of six months. Access to C.S. was to be in the discretion of the Society.
On April 19, 2013 the Society commenced status review applications in relation to each girl. M.E. filed Answers in relation to both applications.
At the first return of the status review applications on May 22, 2013, Justice Brown continued the existing orders on a temporary basis.
INCARCERATION
During the summer of 2013 M.E.’s outstanding criminal charges relating to her dead aunt S.T. finally caught up with her. She had worked out a deal with the crown attorney. She would plead guilty to failing to meet an obligation to a dead body, and also fraud. She anticipated being sentenced to two years in jail.
On July 18, 2013 M.E. brought motions requesting that L.R.S. and O.S. be placed in the care of her daughter V.R.S. while M.E. went to jail.
The Society opposed the motion. It had conducted a kin assessment and V.R.S. was not approved. The Society said once M.E. went to jail they intended to place L.R.S. and O.S. in foster care.
At the end of the first day of the motion last September, upon completion of submissions by M.E.’s counsel, I expressed concern about the inadequacy of the evidence and information presented by M.E. in support of her motion. The next day she provided a supplemental affidavit sworn September 13, 2013. It told a bit more of the story:
a. M.E.’s aunt S.T. was 61 years old when she died on August 27, 2009.
b. S.T. had serious health problems and lived in M.E.’s home from 2003 until she died.
c. S.T. received monthly social assistance from the Ontario Disability Support Program (ODSP). Her cheques were initially mailed to M.E.’s home. A bank account was opened in the names of M.E. and S.T. jointly.
d. In 2005, while S.T. was alive, ODSP did a telephone update of S.T.’s situation. M.E. impersonated another individual during that telephone interview. She convinced ODSP to mail S.T.’s monthly cheques in the name of this other person. M.E. then forged that person’s name and cashed those cheques. She also submitted fraudulent forms to ODSP to keep the cheques coming.
e. While all of this was happening, M.E. was also receiving her own monthly ODSP cheques.
f. For an extended period M.E. kept advising ODSP by telephone that S.T. was living with this other person. At one point M.E. even went to the Hamilton ODSP office, presenting herself as that other person to request a replacement cheque.
g. There were additional misrepresentations to ODSP. The bottom line: M.E. kept lying to ODSP and receiving S.T.’s cheques.
h. According to the crown narrative, in the early morning of August 27, 2009 M.E. found S.T. unresponsive in her basement bedroom, and began yelling and screaming.
i. V.R.S. was home and told M.E. to call an ambulance, but M.E. did not do so.
j. Instead, M.E. called L.S. who was at work. When he arrived and saw S.T. with no signs of life, he told her to call an ambulance, and then went back to work.
k. “Instead of calling an ambulance, M.E. dressed S.T., wrapped S.T. in a blanket, and then carried S.T.’s body out to the family van. M.E. placed S.T. in the front passenger seat, secured the seatbelt assembly around her, and advised V.R.S. that she was driving S.T. to the hospital.”
l. M.E. drove around with the body for a couple of hours. She then drove to an address and placed S.T.’s body into a 3-wheeled jogging stroller and took her into the backyard.
m. “Without any plans to call for assistance M.E. left S.T. in the stroller for the remainder of the day of August 27 and all day on August 28, 2009.”
n. M.E. says that evening she pushed the stroller with S.T.’s body into the farmland behind the home, where she dug a shallow grave. She placed S.T.’s body into the grave and covered her up with dirt.
o. She says she never told anyone about the improper burial. This is the act which led to the “indignity to human remains” charge.
p. M.E. continued to receive and cash S.T.’s monthly ODSP cheques. She kept lying to ODSP that S.T. was alive.
q. Over the years, S.T.’s sister became suspicious. She kept asking M.E. what happened to S.T.? By 2012, when she still couldn’t get a straight answer, she called police.
r. The subsequent investigation revealed M.E. had received more than $52,000.00 fraudulently.
s. On July 23, 2012 M.E. escorted police to a farm where she said she buried the body. A search of the area was conducted by OPP cadaver dogs but S.T.’s body was not located.
t. According to the crown narrative: “M.E. has maintained that she had buried the body in this region and cannot account for why police have not been able to locate the remains.”
- In lengthy reasons for judgment dated September 16, 2013 I dismissed M.E.’s motion to have the children placed with her daughter V.R.S. while M.E. was in jail. I concluded that even if M.E. did not proceed with her plan to plead guilty and be sentenced to jail on September 18, 2013, neither L.R.S. nor O.S. should remain in M.E.’s care. Among concerns I set out in paragraph 43:
a. M.E. never actually explained any of what she did – or why. She simply attached a crown narrative – a cold, dispassionate summary of facts, set out in the third person.
b. Even after being prompted for more information, she provided very little. She continued to gloss over a twisted narrative, with no ownership or accountability. We still knew only a fraction of the story, leaving us to wonder: Was it all as bad as it sounded? Or perhaps even worse?
c. M.E. said she was sorry. But there was still no explanation for her years of sophisticated dishonesty and deception -- punctuated by her incredibly callous desecration of S.T.’s body.
d. And on that topic, the question remained: What did she do with the body? Why couldn’t police find it?
e. During submissions, her lawyer suggested that because M.E. buried S.T. in a shallow grave, perhaps animals dug up the body and made off with it. But police said they were still investigating. Why would they continue to investigate if they accepted the “animals dug her up” explanation?
f. And even if animals got to the grave, wouldn’t someone have noticed something during the now five years since S.T.’s death? Bones? A skull? Remnants of her clothing. Anything?
In September 2013 M.E. went to jail. And O.S. and L.R.S. went into foster care, where they remain.
As stated, M.E.’s daughter V.R.S. was not approved by the Society as a kin placement. Nonetheless, after M.E. went to jail, V.R.S. brought a motion to be added as a party. On November 25, 2013 Justice McLaren dismissed that motion.
In October 2013 M.E.’s sister R.J. also presented herself as a potential kin placement for the girls. A kin assessment was completed by the Society in March 2014, and R.J. was not approved.
In May 2014 another potential kin placement was identified, D.R. (paternal aunt to O.S.; great aunt to L.R.S.). But D.R. didn’t follow up and recently confirmed she is no longer proposing to be involved.
On May 5, 2014 -- while M.E. was still serving her two year sentence -- a 15 to 20 day trial was set for the sittings of November 24, 2014.
M.E. now says she agreed to a November 2014 trial when she was under the mistaken impression that she would be released from jail in August 2014. She says she has now confirmed that her statutory release date is actually January 31, 2015. She proposes that the trial be adjourned to the sittings of either March 2 or March 30, 2015 (both of which are apparently available options from a court schedule perspective).
M.E.’s ability to attend the trial is not the issue – she can be brought to court even if she is incarcerated. But she feels she will be able to present a stronger case after she has been released from custody.
Among M.E.’s submissions:
a. She has made a lot of personal progress since she has been incarcerated at Grand Valley Institution.
b. She listed various programs and counselling she has participated in.
c. On May 28, 2014 her daughter C.S. (L.R.S.’s mother) died suddenly. This was devastating for M.E. emotionally and has impacted on her ability to fully engage in certain programs and therapy. She suffered a set-back. But as her grief reaction subsides, she will continue to make progress.
d. O.S. and L.R.S. are like sisters. M.E. is basically the only mother figure they have ever known. They will be devastated if they are cut off from her.
e. It is in the best interests of the children that M.E be able to advance her alternate claims. She wants the children returned to her under supervision order. In the alternative she seeks placement with her daughter V.R.S. or her sister R.J. At the very least, she would be seeking access even if the children are made Crown wards. M.E. needs time between her release from incarceration and the trial date to properly prepare for these triable issues.
- The Society questions M.E.’s progress, noting:
a. M.E. was sentenced to two years in custody; probation for three years; 100 hours of community service; and she was ordered to pay $47,000.00 in restitution. She will have many external controls and responsibilities for the foreseeable future.
b. Her incarceration relates to acts of repeated dishonesty over a prolonged period of time. She has never really explained or taken responsibility for her morally reprehensible behaviours.
c. Even during time in jail – when she knew she was being monitored, and when she knew she had this important Crown wardship trial pending – M.E. has continued to show poor judgment, with continuing deception and dishonesty.
d. There have been various examples of M.E. not following institution rules.
e. On August 24, 2014 she returned from an Escorted Temporary Absence suspected of having used drugs. She had attended her daughter V.R.S.’s residence. Her pupils were dilated. She tested positive for clonazepam for which she has no prescription. She kept changing her story and provided conflicting explanations as to how she had she ingested the substance.
f. There had been earlier occasions at the institution when she was found with medications which hadn’t been prescribed for her.
g. There have been other behavioural issues, with M.E. telling contradictory versions of events to different members of her case management team.
h. While initially M.E. appeared to be making progress after being incarcerated, her breach of institution rules has resulted in privileges being removed or reviewed. Support for day parole was withdrawn. Escorted Temporary Absences, Unescorted Temporary Absences, employment and visits were all under review by the institution.
i. Despite her statutory release date being January 31, 2015, she was eligible for day parole in August 2014. Her parole hearing has now been delayed – at M.E.’s request -- until November 2014 as a result of her own lack of compliance and cooperation while in jail. The Society says any delay in her graduated release into the community is her own fault.
j. She lists various courses and programs she has taken, but she doesn’t explain what she has learned or how she has changed.
k. Some of the most important counselling for M.E. has been delayed as a result of her own actions and situation. Even if the trial was adjourned to March 2015, it is unknown if M.E. would have even resumed participating in these very important services.
l. M.E. has been unable to address her own mental health and her own behaviours, even in a structured setting where she would have had both motivation and opportunities to change her life.
m. There is no evidence of a sincere, sustained effort to address long-standing problems. She has yet to demonstrate a period of stability
n. While M.E.’s grief over the death of her adult daughter C.S. is understandable, it is yet another stressor she is struggling with. M.E.’s correctional plan strongly encourages her to engage in psychological counselling at the institution and at the community level. She still needs to address past trauma and improve relations with her own family.
o. She has long-standing, complex problems which appear nowhere near being resolved. It is unrealistic to assume that delaying the trial to March 2015 will significantly change the overall risks and concerns.
- The Society argues the mother seeks more time to deal with her many problems, but fails to address the children’s needs.
a. The Society already had many long-standing concerns about M.E.’s care for O.S. and L.R.S. After the children were placed in care, the Society learned of additional problems.
b. For example there were medical issues about L.R.S. Her weight (approximately 76 pounds) was a concern. She was treated for a skin fungal infection.
c. There were concerns reported from the school and foster home about L.R.S.’ behaviour.
d. The foster parent reported O.S., who was almost seven years old at the time, still drank from a bottle and did not appear to know how to drink from a cup. O.S. had difficulty eating textured food.
e. Some of O.S.’ teeth had to be extracted due to being in poor condition. The child was reluctant to speak outside of the foster home. She covered her mouth due to the state of her teeth. She was also afraid of showers.
f. L.R.S. has had difficulty maintaining appropriate boundaries and controlling aggression. She has had difficulty sleeping through the night, and needed a high level of supervision. She was on medication for ADHD and has been referred to CONTACT Hamilton for trauma counselling/treatment.
g. Both children have become very close with the foster mother and they easily become upset when she leaves the home.
h. A team of professionals has been working with both children to address their multiple problems, including anxiety, feeling unsafe, and inability to trust. Extensive support is being provided for the foster mother.
i. The children have been progressing in foster care. But they both require strong and consistent caregivers to meet their complex needs on a daily basis. They require caregivers that are experienced, flexible and who will not personalize the children’s behaviours.
THE LAW
This case is about time: The conflict between a parent’s need for more time to overcome mistakes and deficiencies, balanced against a child’s need for stability, permanence, and resolution in a timely way.
Not coincidentally, the Child and Family Services Act (“the Act”) and the Family Law Rules (“the Rules”) have a lot to say about time -- and how important it is that we always consider the passage of time from a child’s perspective.
Section 1(1) sets out the child-focussed objectives of the Act.
1(1) Paramount purpose
The paramount purpose of this Act is to promote the best interests, protection and well being of children.
1(2) Other purposes
The additional purposes of this Act, so long as they are consistent with the best interests, protection and well being of children, are:
To recognize that while parents may need help in caring for their children, that help should give support to the autonomy and integrity of the family unit and, wherever possible, be provided on the basis of mutual consent.
To recognize that the least disruptive course of action that is available and is appropriate in a particular case to help a child should be considered.
To recognize that children's services should be provided in a manner that,
i. respects a child's need for continuity of care and for stable relationships within a family and cultural environment,
ii. takes into account physical, cultural, emotional, spiritual, mental and developmental needs and differences among children,
iii. provides early assessment, planning and decision-making to achieve permanent plans for children in accordance with their best interests, and
iv. includes the participation of a child, his or her parents and relatives and the members of the child's extended family and community, where appropriate.
To recognize that, wherever possible, services to children and their families should be provided in a manner that respects cultural, religious and regional differences.
To recognize that Indian and native people should be entitled to provide, wherever possible, their own child and family services, and that all services to Indian and native children and families should be provided in a manner that recognizes their culture, heritage and traditions and the concept of the extended family.
The Act’s paramount purpose requires that any adjournment request must be considered based on the best interests of the child – even if those best interests conflict with the best interests of a parent as a litigant.
Section 52 specifically deals with scheduling.
Delay: court to fix date
Where an application is made under subsection 40(1) or a matter is brought before the court to determine whether a child is in need of protection and the determination has not been made within three months after the commencement of the proceeding, the court,
(a) shall by order fix a date for the hearing of the application, and the date may be the earliest date that is compatible with the just disposition of the application; and
(b) may give such directions and make such orders with respect to the proceeding as are just.
- Section 70 sets out time limits.
70(1) Time limit
Subject to subsections (3) and (4), the court shall not make an order for society wardship under this Part that results in a child being a society ward for a period exceeding,
(a) 12 months, if the child is less than 6 years of age on the day the court makes an order for society wardship; or
(b) 24 months, if the child is 6 years of age or older on the day the court makes an order for society wardship.
70(4) Six month extension
Subject to paragraphs 2 and 4 of subsection 57(1), the court may by order extend the period permitted under subsection (1) by a period not to exceed six months if it is in the child's best interests to do so.
- Rule 33 of the Family Law Rules sets out mandatory timelines for determination of child protection cases.
33(1) Timetable Every child protection case, including a status review application, is governed by the following timetable:
Step in the case
Maximum time for completion, from start of case
First hearing, if child has been apprehended
5 days
Service and filing of answers and plans of care
30 days
Temporary care and custody hearing
35 days
Settlement conferences
80 days
Hearing
120 days
33(2) Case Management Judge
Wherever possible, at the start of the case a judge shall be assigned to manage it and monitor its progress.
33(3) Court may Lengthen Times Only in Best Interests of Child The court may lengthen a time shown in the timetable only if the best interests of the child require it.
33(4) Parties may not Lengthen Times
The parties may not lengthen a time shown in the timetable by consent under subrule 3(6).
ANALYSIS
- In determining the motion before me, I must consider:
a. O.S. and L.R.S. have been in care (in the same foster) home since September 17, 2013.
b. If the trial proceeds in November 2014, they will already have been in care longer than the 12 months permissible under s. 70 of the Act.
c. Even if the 15 to 20 day trial proceeds as scheduled starting in November 2014, it could easily be several months before judgment is issued in such a complex case.
d. If a trial is delayed until March 2015, they will have been in care more than a year and a half (without considering time required for a judgment). That exceeds permissible time limits, even if an extension were granted under s. 70(4). And the facts of this case do not justify an extension.
e. Even if the trial proceeds in November 2014, the Rule 33 mandatory timelines will still have been exceeded.
M.E. submits it is unfair to force such an important trial to proceed at a time when she faces such severe limitations – incarceration – imposed by the criminal justice system.
But in similar – perhaps even more compelling – cases, courts have refused to adjourn child protection trials to await the outcome of pending criminal charges against parents. CAS Thunder Bay (District) v. D. (S.) 2010 ONCJ 721 (OCJ); CAS Ottawa v. P. (J.) 2012 ONSC 3420 (SCJ). In those cases adherence to timelines and the need to promote permanency planning for children prevailed over the parent’s litigation preferences.
If children’s interests take priority over parents awaiting a criminal trial, then surely children’s interests must take priority over parents once they have been convicted and are serving time. Criminal behaviour has many foreseeable and far-reaching consequences. Parents should consider – ahead of time – that if they’re going to behave in ways that land them in jail, they cannot use incarceration as an excuse to put their children’s lives on hold.
O.S. and L.R.S. are seven and six. They are reliant on the various adults in their lives – M.E., the Society, and our court system -- to get their act together as quickly as possible. Delay is – almost inherently – bad for children, particularly where they are in care and issues of Crown wardship and permanence are pending.
I agree with the Society.
a. These young girls have already been in care too long.
b. We have a statutory and a moral obligation to achieve stability and permanence for them as quickly as possible.
c. M.E.’s problems are serious and long-standing. The most recent evidence suggests that while she has made some progress, she has also had significant recent setbacks.
d. M.E. has failed to establish that delaying the trial by about four months would result in any benefit for the children.
e. Conversely, there is a statutory presumption that any additional delay is inappropriate and inconsistent with the best interests of the children.
f. While M.E. rests her claim on a general notion of “fairness”, the adjournment she seeks might only be fair to her – not to the children.
g. The Act and the Rules require that where children and parents have competing needs, the best interests of the children must prevail over the litigation strategies of parents.
THE ORDER
M.E.’s motion to delay the Crown wardship trial is dismissed.
Correctional staff are directed to bring M.E. to court for trial.
The Honourable Mr. Justice Pazaratz
Released: September 30, 2014
COURT FILE NO.: C989/10
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CHILDREN’S AID SOCIETY OF HAMILTON
Applicants
-and-
C.S. (mother)
And
M.E. (maternal grandmother)
Respondents
REASONS FOR JUDGMENT
The Honourable Mr. Justice Pazaratz
Released: September 30, 2014