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.: C 83/14
DATE: 2015/09/02
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Children’s Aid Society of Hamilton
Applicant
– and –
J.J. and M.M.
Respondents
Suranganie Kumaranayake, counsel for the Applicant
Amy Katz, counsel for the Respondent J.J. and agent for Martin Vamos, counsel for the Respondent M.M.
HEARD: August 14, 2015
THe Honourable madam justice Deborah L. Chappel
reasons for judgment
PART I: INTRODUCTION
[1] The Respondent J.J. is the mother of two boys, namely 4 year old L.J., born […], 2010 (“L.”) and 1 year old H.B. J.-M., born […], 2013 (“H.”). The Respondent M.M. is the father of H. The identity of L.’s biological father is unknown. This was the hearing of a motion which the mother J.J. brought to seek increased access to L. and H. This motion was brought in the context of a Protection Application which the Society initiated on October 3, 2014, in which the Society is requesting an order for six months Society wardship. The existing temporary order of Mazza, J. dated October 14, 2014 provides for both children to remain in the care of the Society, with access to the parents to be in the discretion of the Society and supervised in the Society’s discretion but to occur at least twice per week.
[2] The access arrangements respecting L. and H. have been adjusted several times since October 14, 2015. The Respondent father was incarcerated as of the hearing of the motion, and therefore only J. J. was exercising access. The mother currently has six hours of access each week, structured as follows:
A three hour visit each Tuesday from 3:00 pm. until 6:00 p.m. The first hour of this visit is with H. only, and occurs at the Society’s office. Society staff check in on J.J. and H. periodically. The second hour is with both children present, and occurs at the Society’s office as well but in a supervised group setting. The third hour is with L. only and remains in the supervised group setting.
A three hour visit each Thursday from 2:00 p.m. until 5:00 p.m. The first hour is with L. only and occurs in the supervised group setting at the Society’s office. The remaining two hours are with both children and a Society Parent Support Worker is present.
[3] J.J. seeks an order granting her unsupervised access to L. and H. at least three times each week, for four hours on each occasion in her home. Her position is that if the court concludes that her access with L. and/or H. should be supervised, her parents D.J. and D. J. (“the maternal grandparents”) should be authorized as supervisors. She further submits that even if the court orders ongoing supervision of her access with L., she should nonetheless be permitted unsupervised access with H. The Society opposes the relief which J.J. has requested and seeks an order dismissing the motion.
[4] The issue in this case is whether the changes in access which J.J. is seeking would be in the best interests of L. and H. For the reasons that follow, I am not satisfied that a change in the access arrangements is in the children’s best interests, and I have therefore dismissed the motion.
PART II: BACKGROUND AND OVERVIEW OF COURT PROCEEDINGS
[5] An understanding of the history of this case and the Society’s concerns is important, since my decision respecting the access issue is based in large part on the seriousness and persistent nature of the protection concerns in this case. The Society’s historical involvement with the parents is outlined in the affidavit of the Family Services Worker, Ms. Carolyn Kelly, sworn October 3, 2014. The Society initially became involved with J.J. when she was a child. In 1994, the maternal grandparents reported that they were having challenges managing J.J. due to her intense temper tantrums. J.J. was eventually diagnosed as suffering from bipolar disorder and depression, and the Society supported the family in ensuring that she received counselling for her mental health issues.
[6] The Society became involved with J.J. again in 2010, when she was pregnant with L. J.J.’s family physician, Dr. Faught, reported concerns to the Society at that time respecting the mother’s mental health and her ability to parent the child. Following L.’s birth, additional concerns were noted regarding J.J.’s ability to meet the child’s basic needs, since she appeared to have difficulty maintaining a regular feeding schedule for him. L. was admitted to care on a voluntary basis pursuant to Temporary Care Agreements which J.J. signed soon after his birth until June 2011, when the Society returned him to the mother’s care. The Society implemented the services of a Parent Support Worker to support J.J. with respect to her parenting skills. J.J. was cooperative with the Society and demonstrated progress in her ability to care for L. The Society’s file was therefore closed in January 2012.
[7] The Society became involved with J.J. again briefly in August 2012, when J.J. called to report that M.M. (“the father”) was at her home and was not supposed to be there. J.J. relayed that M.M. had stolen groceries and other items from her home in the recent past. The Society directed J.J. to shield L. from adult conflict, and J.J. assured the Society at that time that she would protect the child. The Society’s caution to J.J. respecting M.M. was based in part on its historical involvement with M.M. in relation to another partner and child. The Society had been involved with M.M. previously in 2002, when he had been charged with assault for choking his partner at the time. M.M. was abusive to this same partner again in July 2003, resulting in him being charged with assault, threatening, breach of probation and forcible confinement.
[8] J.J. continued her relationship with M.M., despite the Society’s cautions about the risk which he posed to her and L. She conceived the child H. in approximately March 2013, and H. was born on […], 2013. The Society was involved with J.J. in May 2013 and again from July 2013 until November 2013. The concerns during that period of time included the following:
The Society had received an anonymous report in May 2013 from a person who stated they had observed J.J. slapping L. on the face and dragging him across the park by his forearm. The Society monitored the mother’s interactions with L. and noted that she was appropriate with the child.
The father had an extensive criminal record, including the charges referred to above relating to domestic incidents with his former partner and charges relating to his involvement in a manslaughter case.
The mother admitted to the Society that the father M.M. used illegal drugs, and that she had found a crack pipe in his laundry in November 2013.
J.J. also admitted to the Society that M.M. had pulled the child L.’s hair as a form of discipline.
J.J. had remained involved with M.M. despite the concerns about his history of domestic violence, his drug use and his abusive treatment of L. She advised the Society that she ended the relationship with him again in November 2013, after she found the crack pipe.
[9] The Society closed its file respecting the family in early November 2013, as J.J. had separated from M.M. At that time, the Society cautioned J.J. about the concerns respecting M.M., and directed her to contact the Society if M.M. requested access to either L. or her unborn child.
[10] J.J. called the Society in mid-November 2013 to advise that M.M. wanted to be present for the birth of the baby and wanted access with the child L. The Society remained involved with the family until February 2014. During that time, M.M. assured the Society that he had stopped using drugs and engaging in criminal activity. The Society closed its file based on its assessment that J.J. was able to protect the children L. and H., who was born on […], 2013.
[11] The Society became involved with the family again on April 5, 2014, following a report from Officer Downer of the Hamilton Police Service respecting a domestic incident between J.J. and M.M. The Society determined that J.J. had called the police on that date to report that M.M. was very intoxicated and refused to vacate the family home when she asked him to leave.
[12] The children L. and H. were apprehended from the care of J.J. on September 29, 2014, and the Society commenced the Protection Application herein on October 3, 2014, requesting an order for six months Society wardship. The concerns which led to the apprehension were as follows:
J.J. had remained involved with M.M. following the closure of the file in late 2013, despite the history of concerns respecting him.
J.J. reported that M.M. had been physically and emotionally abusive towards her and the children. The specifics of M.M.’s abusive treatment included the following:
i. On April 7, 2014, J.J. advised Society worker Ms. Vandendool that the father had been using marijuana and consuming alcohol, and that his behaviour had deteriorated over the previous three weeks. She stated that M.M. had hit her, causing bruises, and that he had punched holes in the wall of the family home. She also reported that M.M. had called L. a racially inappropriate name.
ii. J.J. described to Ms. Vandendool an incident that had recently occurred during which M.M. had punched a wall in the home while she was present with the child H. in her arms. According to J.J., the father told her on that occasion that he wished the wall was J.J.’s skull J.J. indicated that M.M. was overbearing and controlling. She also advised Ms. Vandendool on April 7, 2014 that M.M. had threatened to kill her and the child H. if she reported concerns about him to the police or the Society.
iii. J.J. also advised Ms. Vandendool on April 7, 2015 that on April 5, 2014, the child L. followed M.M. to the lower level of the family home, and she then heard a smacking sound, followed by L. screaming and crying. She described seeing a red mark on L.’s face after this occurred. According to J.J., when she confronted the father about this incident, he threatened to kill her and L. if he found out that J.J. was cheating on him or using crack. J.J. stated that she asked M.M. to leave the home, and closed the door after he left. However, she then opened the door slightly, at which point M.M. shoved the door open roughly. J.J. advised that she was holding H. at the time, and that the door struck H. on the head.
iv. J.J. described an incident in the past when M.M. had tried to strike her on the head with a bottle of alcohol, and another incident that had occurred in the spring of 2014 when M.M. had whipped her across the living room
v. J.J. advised Society worker Ms. Samantha Landry on April 8, 2014 that M.M. was verbally abusive towards her and the child L.
vi. On April 11, 2014, the child L. disclosed to Ms. Landry that the father had hit him on the cheeks and on his mouth.
vii. On June 8, 2014, the mother’s friend, G.C., advised Society worker Ms. Bakai that M.M. has been physically abusive towards both J.J. and the child L., and that she had often observed J.J. to be covered in bruises.
viii. On June 8, 2014, L. disclosed to Ms. Bakai that M.M. had hit him on his face, back, legs, arms and buttocks. He also described M.M. locking him in his room and in the basement, yelling at him frequently and calling him derogatory names.
A Violence Against Women (“VAW”) counsellor Ms. Nancy Smith assessed J.J. as being very high risk for abuse by the Respondent father on May 7, 2014. The Society recommended that J.J. participate in counselling respecting domestic violence issues, and continued to encourage her to access this counselling through VAW. However, J.J. was resistant to this type of counselling, stating that she did not want to relive the violence which she had suffered. She eventually agreed to pursue this counselling, but missed a counselling session on July 7, 2014.
Ms. Landry clearly advised J.J. on April 8, 2014 that M.M. could not return to the family home or have access to the children due to the protection concerns respecting him. However, J.J. remained in an on-again/off-again relationship with M.M. and allowed him into the home when they were together. In addition, she was unable to keep him away from the family home during periods when the parties separated. For instance:
i. The father attended at the mother’s house unannounced in the evening of May 2, 2014, at which time the parties had a verbal dispute which resulted in the police intervening to keep the peace.
ii. The mother contacted M.M. to advise him that she was at the hospital with L. on July 5, 2014 dealing with an injury to L.’s finger, despite the Society’s direction that M.M. should have no contact with the children. M.M. attended at the hospital on the date. J.J. admitted that she began having telephone communications with M.M. on July 18, 2014. On July 22, 2014, she advised Family Services Worker Ms. Carolyn Kelly that M.M. had turned into a loving father, that she did not feel that he posed a risk to her or the children, and that she wished to reconcile with him. As of that time, J.J. had not attended any counselling to address the concerns regarding domestic violence.
iii. On July 25, 2014, the maternal grandmother advised Society worker Joanne Friesen that the mother had gone out with the children the previous night to visit with the father. She also stated that the mother had advised her that she wished to resume her relationship with M.M., since she felt that L. needed a father figure in her life.
iv. On August 1, 2014, Family Services Worker Ms. Kelly wrote a letter to J. J. outlining the Society’s concerns and expectations. She clearly indicated in that correspondence that J.J. was not to permit any contact between M.M. and the children. J.J. assured the Society that she would not permit M.M. to be around the children. M.M. was incarcerated around this time but was released on August 18, 2014. Despite J.J.’s assurances to the Society about M.M.’s contact with the children, she allowed M.M. into the family home on August 19, 2014 when the children were present. On August 21, 2014, J.J. advised Parent Support Worker Ms. Lazar that she still loved M.M. and wanted to reconcile with him, provided that he was committed to seeking help to address his issues.
v. On August 28, 2014, J.J. advised Ms. Lazar that the father had been attending her home while intoxicated and under the influence of drugs, and that he had stolen money from her purse that morning. She had not contacted the police or the Society at the time of M.M’s attendances. Ms. Lazar emphasized to J.J. the expectation that she should contact the police immediately if M.M. attended at her home again.
vi. On September 3, 2014, J.J. admitted to Ms. Lazar that she had been speaking to the father by telephone while he was incarcerated. Ms. Lazar reiterated the expectation that J.J. was to call the police right away if M.M. attended at her home again.
vii. On September 12, 2014, the mother admitted to an incident when M.M. had attended her home in August 2014, asking for her to return money that he had given her and to have sexual relations with him. She relayed that M.M. punched her on the head when she rebuked his advances, causing a goose egg. She admitted that she hit M.M. back, and that she did not contact the police about this assault.
viii. On September 24, 2014, J.J. advised Ms. Lazar that the father was to be released from incarceration again on September 25, 2014, and that his lawyer had advised her that he was being released to her address. Ms. Lazar reinforced again the expectation that J.J. call the police right away if M.M. attended her home.
ix. Ms. Lazar attended the mother’s home on September 29, 2014. When she arrived, J.J. told her that M.M. was present in the home, and that he had been visiting with the children over the weekend as well. J.J. insisted that she had called Ms. Kelly at the time to discuss this contact between the children and M.M., but Ms. Kelly did not receive any messages from the mother.
x. Society worker Ms. Kelly spoke with J.J. by telephone after learning about the presence of M.M. in the home on September 29, 2014. J.J. stated during that conversation that M.M. was not a bad person, that the children deserved to have him in their life, and that she had told M.M. that he could stay with her. She expressed her view that M.M. deserved a fair chance, and that he should be included in the children’s lives. Ms. Kelly advised the mother that she needed to call the police right away, which J.J. agreed to do.
xi. Ms. Kelly attended the mother’s home on September 29, 2014 following the above noted conversation, and the father was still present. J.J. had not called the police, and she told Ms. Kelly that it was unlawful for the Society to direct that she have no contact with the father. The children were apprehended from the mother’s care on this date.
xii. Despite the apprehension, J.J. advised Ms. Kelly on September 30, 2014 that she wanted M.M. in the children’s lives, and denied that there were any concerns regarding the children’s safety in the presence of the father.
xiii. J.J. allowed M.M. to attend her home despite the fact that the landlord of her building had advised her of a no trespass order that applied to M.M. in relation to the property on which her building was located.
J.J admitted to Family Services worker Ms. Kelly on July 28, 2014 that the father M.M. grew marijuana in the home when she lived with him. Prior to that disclosure, the mother also admitted to using marijuana at night after the children were asleep to ease her anxiety. In addition, there was evidence that the mother was in a highly intoxicated state during the evening of June 6, 2014 when she was in a sole caregiving role.
There were concerns respecting the impact of the domestic conflict on L.’s emotional wellbeing and behaviour, and J.J.’s difficulties in managing L. On May 13, 2014, J.J. admitted to smacking L. on the bottom, and on May 23, 2014, she advised Ms. Landry that she had slapped him on the hand as discipline and told him to “shut the fuck up” after he slapped H. J.J. reported that L.’s behaviours were problematic, and described incidents when L. urinated on the floor and told her to clean it up, called her his maid, had major temper tantrums, threw food on the floor, told her to “fuck off” and was aggressive towards his brother H. J.J. advised Ms. Landry that she had threatened to spank L. for his behaviours, despite Ms. Landry’s advice that hitting the child was not an appropriate response. J.J. acknowledged that L. had been physically abused by M.M. and had witnessed M.M. being emotionally and physically abusive towards her, and recognized that L.’s behaviours were related to this history of domestic abuse. J.J.’s friend confided in Society worker Ms. Bakai on June 8, 2014 that she had concerns about J.J.’s interactions with L., since J.J. became easily frustrated with the child and expected him to act like an adult.
The mother appeared to lack an understanding of age appropriate development and behaviour. Although L.’s behaviours were challenging, there were concerns that J.J. had difficulties managing him even when he was acting in an age-appropriate manner. The mother’s friend, G.C., and the maternal grandfather both relayed concerns that J.J. became easily frustrated with L., had inappropriate expectations of him based on his age, and often expected him to act like an adult. The maternal grandparents also reported that J.J. struggled and became overwhelmed with the children at times.
The Society workers involved with J.J. documented concerns about J.J. discussing inappropriate adult issues with the child L. on a regular basis, including issues about the father.
The Society had concerns respecting J.J.’s ability to properly supervise the children and ensure their safety and well-being. On June 7, 2014, the Society received a report from Dr. Pardhan from McMaster Hospital, who reported that the mother had brought H. to the hospital for assessment of an expanding hematoma on his head. It was subsequently determined that H. had sustained a long fracture to his skull. During the investigation relating to this injury, J.J. reported that she had observed L. hitting and slapping H. on June 6, 2014, and that she had observed a bump on H.’s head in the afternoon on June 7, 2014. She relayed that she had left L. alone with H. in the living room on June 7, 2014 while she prepared food in the kitchen, despite having observed L. being aggressive to H. prior to that time. J.J. stated that L. admitted to her on June 8, 2014 that he had kicked H. and sat on his head, and she blamed the head injury on L. However, When Society worker Ms. Bakai interviewed L. on June 8, 2014, the child denied having said this to his mother, and insisted that he had only told J.J. that he had swung H. around in his exersaucer. L. also told the maternal grandparents that he had not kicked or hit H., and that he had only swung him in the exersaucer. The mother’s friend, G.C., disclosed to police that the mother had left the child in the care of a babysitter during the evening of June 6, 2014, and had returned home early because the babysitter had called to state that the child had been crying all night. As already noted, G.C. relayed that J.J. returned to the home that evening in a highly intoxicated state. Dr. Segal of the Child Advocacy and Assessment Program carried out an assessment of H., and concluded that the nature and severity of the child’s injury was not consistent with what a three year old child could inflict due to the power and strength that would have been required to cause the trauma. However, she could not completely rule out the possibility that L. had caused the injury. Dr. Segal concluded that even if the injury had been caused as J.J. alleged, there were significant concerns regarding J.J.’s supervision of the children. A police investigation ensued, but no charges were laid since the cause of H.’s injuries could not be conclusively determined. Both during and following the investigation into H.’s injuries, the Society concluded that the children could only remain in the mother’s care if J.J. and the children resided with the maternal grandparents, and her contact with the children was supervised at all times by one or both of the grandparents. J.J. reluctantly complied with these directions from the Society. Despite this arrangement, on July 5, 2014, the child L. sustained an injury to his finger which required stitches after he got his finger caught in a patio umbrella.
There were concerns respecting J.J.’s attention to the children’s medical needs. She failed to have H. assessed by a physician following the incident in April 2014 when H. was hit on the head by the door after M.M. shoved the door open. Furthermore, the evidence indicated that J.J. only took H. to the hospital to be assessed for his head injury on June 7, 2014 after her friend G.C. told her that she should do so.
The mother had been resistant to complying with plans which the Society developed to protect the children and work towards a possible reintegration. As already noted, she had not followed through in a timely manner with domestic violence counselling. She only began attending counselling through the Women’s Centre after repeated requests from the Society that she do so. After H. sustained the fracture to his skull, the Society put a plan in place for the mother and children to reside with the maternal grandparents, and for her contact with the children to be supervised at all times by the grandparents. The mother was resistant to this plan, and consistently told the Society workers that she wished to live on her home. There was considerable conflict between J.J. and her parents when she and the children lived with the maternal grandparents. In early August 2014, the Society authorized J.J. to have two hours of unsupervised contact with the children each day at a local Ontario Early Years Centre. The mother did not comply with this direction. She showed up at the Society’s offices on August 6, 2014 with H., unsupervised, and reported that the maternal grandparents could no longer provide the level of supervision that the Society was expecting.
[13] On the first appearance of the Protection Application on October 3, 2014, Mazza, J. made a temporary without prejudice order for the children to remain in care, with access in the discretion of the Society. Mazza, J. heard a temporary care hearing respecting the children on October 8, 2014. On October 9, 2014, he made a temporary order returning the children to the care of J.J. subject to Society supervision. The temporary supervision order included conditions that the mother not allow the father to have any direct or indirect contact with the children without the prior written approval of the Society, and that the father not attend the mother’s home for any reason without the prior written permission of the Society.
[14] On October 9, 2014, after receiving the Reasons for Judgment of Mazza, J., Ms. Kelly spoke with J.J. to discuss the order. Ms. Kelly asked J.J. where the father was, and where he was living, and J.J. stated that she did not know. However, Ms. Kelly noted that the call display indicated that J.J. was using the father’s phone. Ms. Kelly reviewed the terms of the temporary order with J.J., and J.J. indicated that she understood them. Arrangements were then made for the children to be transported to the mother’s home. When Society Social Work Student Jason Palmer returned the child H. to the mother’s home later that day, the mother advised him that M.M. was not present. However, Mr. Palmer searched the home and found M.M. in the basement. In addition, J.J. advised Mr. Palmer on that date that she was pregnant again. The Society apprehended the children again on October 9, 2014 based on the events of that day and the history of concerns respecting the family. The matter returned to court on October 14, 2014, at which time Mazza, J. granted the existing temporary order providing for the children to remain in care, with access to the parents in the discretion of the Society and supervised at its discretion, to occur at least twice per week.
[15] On February 2, 2015, the parties consented to an order requiring J.J. and M.M. to participate in a parenting capacity assessment. This assessment is being carried out by the London Family Court Clinic, and is expected to be completed and released in late September or early October, 2015.
[16] The Society initially arranged supervised visits for J.J. at the Society’s offices twice weekly for 1.5 hours on each occasion. As I have already noted, the structure of the mother’s access has changed over time. Since June 16, 2015, the mother has had access as described in paragraph 2 above. The decision to implement these access arrangements was made at a Society case conference on June 3, 2015. At that time, the Society decided that it would review J.J.’s access after approximately one month to determine if a further expansion or liberalization of access was appropriate. In addition, since May 17, 2015, the maternal grandparents have had access to the children in their home every Sunday from 9:30 a.m. until 12:45, without the mother present.
PART III: POSITIONS OF THE PARTIES
[17] J.J. seeks increased and unsupervised access to L. and H. as set out in paragraph 3 above. In support of her position, she states that she has attended her access regularly since October 2014, has come prepared for visits and has had positive interactions with the children during her time with them. She notes that she engages the children in appropriate activities, follows the advice and direction of Society staff who are involved in monitoring her access and providing parenting input, and makes efforts to implement recommendations which the Society has made regarding her parenting. J.J. also submits that she has been cooperative with the Society. In particular, she indicates that she consented to participate in a parenting capacity assessment, has been engaged in domestic violence counselling with the Women’s Centre since August 2014, and sees her family physician, Dr. Faught, regularly for additional support. In addition, she completed the Beyond the Basics Parenting Program which ran from January until March 2015 and the Anger and Parenting Program run by the Women’s Centre in early 2015.
[18] J.J. submitted that the Society’s request in its Protection Application is for an order for six months Society wardship, and not Crown wardship. She argued that this request reflects an intention on the part of the Society of reintegrating the children into her care, which she argued is an appropriate goal having regard for the steps which she has made to address the protection concerns and her positive interactions with the children during access. She submitted that the concerns which the Society has raised regarding her visits amount to “nit-picking” about insignificant matters, and suggested that the true reason for the Society’s objection to an expansion of access is that it wishes to obtain the recommendations of the parenting capacity assessor before making any further decisions in this case. Counsel for J.J. relied on the case of Children and Family Services for York Region v. H.C., C.S. and R.C., 2008 CanLii 64678 (Ont. S.C.J.) in support of the argument that it is inappropriate to cease working with parents towards family reunification on the basis that the results of a parenting capacity assessment are pending.
[19] J.J. further argued that there is a distinction between her parenting in relation to L. as opposed to H. She highlighted L.’s difficult behaviours, and stated that any problems which she experiences in parenting him are attributable to those behaviours. By contrast, she argued that she has no difficulty managing H. given his agreeable personality and positive behaviour. Accordingly, her position is that even if the court concludes that her access with L. should be supervised, this conclusion should not automatically extend to her visits with H.
[20] Finally, J.J.’s position is that if the court concludes that her access should be supervised, her parents are the most appropriate people to carry out the supervision role. She emphasized that the maternal grandparents have been extremely supportive of her and the children throughout her life, that they are willing and able to supervise, and that they have always acted in the best interests of the children in the past.
[21] The Respondent father M.M. supports J.J.’s position on this motion.
[22] The Society submits that a change in access is not in the children’s best interests. Counsel for the Society highlighted numerous ongoing concerns respecting J.J.’s ability to manage her frustration, the quality of her interactions with L. and H., and her lack of appreciation and understanding of developmental stages and what can be reasonably expected of the children at each stage. In addition, the Society continues to have grave concerns regarding J.J.’s ability to appreciate the impact of M.M.’s violence and emotional abuse on her and the children, her capacity to protect the children from M.M. on a long term basis and her ability generally to form a strong and healthy partner relationship.
[23] The Society’s position respecting access is the same for both L. and H. Counsel emphasized that the concerns relating to L.’s behaviours are largely attributable to the abuse which M.M. inflicted against him and J.J., and the mother’s inability to shield him from the domestic conflict. Counsel for the Society submitted that although the mother has been participating in domestic violence counselling, she is not progressing in terms of her understanding of the impact of domestic violence and the need to make the safety of the children her first priority. This concern is based in part on the evidence that J.J. continued her relationship with M.M. until he assaulted her again in December 2014, and has continued to visit M.M. in jail during the course of his current incarceration.
[24] With respect to the request that the maternal grandparents supervise J.J.’s access if supervision is deemed necessary, the Society is of the view that the grandparents are not appropriate access supervisors. Ms. Kumaranayake for the Society highlighted the rocky nature of the mother’s relationship with her parents and the fact that J.J. resisted the safety plan that involved their support in 2014. She also emphasized the concerns regarding J.J.’s failure to comply with court orders and the Society’s directions in the past, and argued that this evidence raises serious concerns regarding J.J.’s capacity to abide by court ordered conditions aimed at protecting the children.
PART IV: ANALYSIS
[25] Pursuant to section 58(1) of the Child and Family Services Act, R.S.O. 1990, c. c-11, as amended (the “CFSA”), the test for the determination of the access issue on this motion is the best interests of the child. Section 37(3) of the CFSA outlines the factors which the court is required to consider when making a decision based on the best interests of the child. I have carefully considered those factors, and I am satisfied that the relief which J.J. has requested is not in the children’s best interests.
[26] It is necessary at the outset of my analysis to address the submission of counsel for J.J. that in light of the request in these Status Review proceedings for six months Society wardship, the goal continues to be to reintegrate L. and H. into the mother’s care. Counsel for J.J. relies on that assumption in support of her position that access should be expanded and liberalized in furtherance of that goal. I note that the request for six months Society wardship was made on October 3, 2014. The children have now been in the care of the Society on a consistent basis for 11 months. I am satisfied that the Society has been working diligently with the mother since the apprehension on September 29, 2014 in an attempt to resolve the protection concerns so that L. and H. can be returned to J.J.’s care. However, by virtue of section 70 of the CFSA, the court may not make an order respecting L. or H. that results in the children being in the care of the Society on a temporary basis for a period exceeding 12 months, subject to the court’s authority pursuant to section 70(4) to extend that maximum period by six months. This case is therefore at a critical juncture. Given that J.J. is the only person advancing a plan for the children, the only options that will be available to the court will be to either return the children to her care, request a six month extension of the time for the children to remain in care as Society wards, or pursue an order for Crown wardship, either with or without access.
[27] Much has happened in this case since the children were apprehended, and the Society is clearly at the point where it must formulate a position respecting long term planning for the children. An amendment to the current Status Review application will be required regardless of the position which the Society pursues. Based on the evidence adduced on this motion, it is apparent that the Society has significant ongoing concerns as to whether it is in the children’s best interests to be returned to the care of their mother. The Society’s request for a parenting capacity assessment is reflective of this concern. I agree with counsel for J.J. that attempts to work towards family reunification should not be put on hold simply because a parenting capacity assessment is underway. However, I do not accept the suggestion that the Society’s position on this motion is based simply on its desire to await the results of the assessment. Based on the evidence before me, I am satisfied that there are numerous protection concerns respecting J.J. which support the Society’s position that an expansion of access is not in the children’s best interests.
[28] In reaching my decision in this matter, I have given considerable weight to the evidence respecting J.J.’s progress in appreciating the effects of domestic violence and in acquiring the emotional strength required to shield herself and the children from abusive situations in the future. I note that according to J.J., she has been engaged in counselling with Ms. Debra Martin from the Women’s Centre for approximately a year. Given the significance of the concerns regarding the children’s exposure to domestic conflict, it is concerning that J.J. did not provide a report from Ms. Martin regarding the consistency of her attendance and her progress in counselling. While I commend J.J. for engaging in this counselling, attendance at sessions is not in and of itself sufficient to alleviate the concerns about the serious history of domestic violence and emotional abuse.
[29] The evidence before me raises considerable doubt as to whether J.J. has been able to benefit from counselling to the point that she has acquired the capacity to ensure a safe and stable home environment for her children. Despite the extensive abuse which M.M. inflicted on J.J. and the child L., and the constant cautions from the Society to J.J. about the risk which M.M. poses to her and the children, J.J. maintained a relationship with M.M. until late December 2014. By that time, she had been engaged in counselling with Ms. Martin for four months. The evidence indicates that J.J. became pregnant with M.M.’s child during this period of reconciliation. J.J.’s acceptance of M.M. back into her life yet again led to another serious incident of domestic violence on December 25, 2014. J.J. admits that on that date, M.M. attended her home, began drinking and became intoxicated. She acknowledged that when she asked M.M. to leave, M.M. became angry, began yelling at her, shoved her violently down onto a futon twice, and then strangled her with one hand while at the same time threatening to strike her with a beer bottle, which he eventually threw against a wall. J.J. states in her affidavit sworn March 20, 2015 that she has now taken the appropriate steps to completely end her relationship and contact with M.M. because she finally appreciates the risks which he poses to her and the children. In her affidavit sworn July 6, 2015, she reiterated that she continued to have no contact with M.M., and noted that the father is now incarcerated for an extended period of time. M.M. is currently facing outstanding charges of break and enter, assault with a weapon, and failure to comply with probation. Notwithstanding J.J.’s assurances that she has severed her relationship with M.M., I find that she has attended the Hamilton Wentworth Detention several times since April 2015 to visit with him. When Family Services Worker Ms. Kelly met with M.M. in jail on July 2, 2015, the father advised her that J.J. had recently updated him about developments in the case. In her affidavit sworn August 2, 201, J.J. admitted to visiting M.M. in jail and not being honest with the Society about this contact, since she did not want the Society to “hold it against her” in this case. Her only explanation for this ongoing contact is that she is lonely without the children in her care. Despite her acknowledgement that she misled the Society and this court about her ongoing relationship with M.M., J.J. asks in the same breath for this court to believe that she would not allow M.M. to have contact with the children without the Society’s approval. Actions speak louder than words, and all of the evidence suggests that J.J. has no intention whatsoever of severing her ties with M.M.
[30] In support of her position for increased and liberalized access to the children, J.J. suggests that the court should gain comfort from the fact that M.M. is likely to be incarcerated for an extended period of time. While M.M.’s incarceration provides temporary protection for the children from his abusive treatment, the time for temporary planning for L. and H. has long passed. As I have already emphasized, the CFSA mandates that permanency planning be carried out for these children at this point. Moreover, the history of J.J.’s clear inability to extricate herself from her abusive relationship with M.M. raises more general concerns about her self-esteem, her ability to choose and maintain healthy, positive relationships and her capacity to provide a safe and emotionally nurturing home environment for the children.
[31] I have carefully considered the evidence relating to J.J.’s interactions with the children during visits since October 2014. To the mother’s credit, there have been many positives with respect to her access. She has been consistent in attending visits, comes prepared with appropriate food and activities, and often has loving interactions with both L. and H. It is clear that she loves the children and that they have a bond with her. However, there are also many concerning aspects about her interactions with the children, even during the relatively short periods when Society staff have observed her with the children during visits. The evidence indicates that she is unable to maintain appropriate interactions with L. and H. on a consistent basis. Her relations with L. continue to be particularly problematic. J.J. often becomes easily frustrated with L., even when the child is exhibiting age-appropriate behaviours. There have been instances during visits when she has raised her voice in exasperation and made inappropriate comments to L. On one occasion, L. disclosed that his mother slapped him on the head out of anger when she was in the washroom with him. The particulars of these concerns include the following:
On February 24, 2015, J.J. became angry with L. when he did not eat the meal which she had brought for him, and threatened to not bring any more suppers. She responded angrily to him twice again when he did not comply with her requests to wash his hands and clean up his toys. The level of her anger made L. very agitated to the point that he began to growl at her.
On March 10, 2015, the mother became frustrated with L. when he began to talk to her about an incident during which M.M. hit J.J. and she tried to protect L. J.J. became angry again at L. when she and the children were playing, and L. again responded by growling and screaming. Instead of attempting to de-escalate the situation, J.J. told L. that she could scream louder and longer then he could, and then began to scream. Parent Support Worker Ms. Phillips had to intervene to tell J.J. to stop because she was inflaming the situation. J.J. continued to yell at L. about his behaviour, and Ms. Phillips had to intervene again to defuse the situation. When Ms. Phillips attempted to talk to J.J. about her frustration and anger during the visit, J.J. apologized for her loudness, but minimized her behaviour and stated that this is just how she and L. communicate.
Ms. Phillips observed that J.J. often used sarcasm as a means of communicating her points to L., rather than calmly explaining issues to L. and redirecting him. She attempted to work with J.J. on this issue during visits.
On March 24, 2015, J.J. referred to L. as “sicko” when he put his finger in a jar of honey, and then became impatient with him when he knocked the honey over. She referred to him as “a sicko” again when he pulled her pants down after observing that they were falling down. J.J. chased L. around the room and took his candy bag, and when L. began to cry, she became annoyed and told him to chill, stating that he should know that she was just playing with him. Ms. Phillips had to explain that a 4 year old sometimes does not understand teasing. J.J. continued to use sarcasm with L., despite the fact that Ms. Phillips had specifically discussed this concern with her at the end of the previous visit. During this visit, L. tried to bring a slice of pizza to another boy who was visiting his family in another section of the visitation centre. Ms. Phillips told him not to do so, but he ignored her direction. J.J. became angry, dragged L. to his chair, and told him in a raised voice to sit down. When he refused to sit, J.J. became increasingly agitated, yelled at him “Fine, don’t sit out then, you always do this to me and then I get into trouble,” to which L. responded by kicking, shaking his fist and growling. J.J.’s anger was clearly fuelling the situation, and eventually she yelled out “Fuck off!” to the child. Ms. Phillips intervened at that point and told J.J. to leave the room with H. to calm down. Ms. Phillips was able to settle L. within a few minutes.
During the visit on April 29, 2015, J.J. became frustrated with L. when he began to whine, and told him to stop it because he was four years old now. She stated sarcastically that she wished she could get her own way by whining.
During the visit on May 8, 2015, the mother became frustrated when L. began to cry, and stated in an angry tone “Oh come here, what is your problem?”
During the visit on May 29, 2015, J.J. became increasingly frustrated and harsh with L. as the visit progressed. When L. stepped on the candy dispenser that she brought for him, she took it back and put it in her purse, stating that he could not take it home as she had promised because he did not care about it.
J.J. showed considerable amount of impatience again with L. during the June 9, 2015 visit. As the visit progressed, she became quick to reprimand him, told him to stop whining and became generally short with him.
During the June 18, 2015 visit, J.J. became frustrated and impatient while trying to read to the children because she had problems keeping their attention. She ended up angrily shutting the book. Her frustration level increased as the visit continued.
Ms. Laura Newell, Society access facilitator, described the mother’s interactions as impatient, frustrated and harsh throughout the June 30, 2015 visit. During that visit, J.J. eventually blurted out in frustration “I am so tired of this shit.”
During the visit on July 2, 2015, J.J. told Society staff that L. was going to lie and allege that she had hit him in the bathroom at the visitation centre. Once J.J. and L. returned to the visitation room, J.J. began to escalate with L. and told him that it was not nice to make up stories. However, L. stated “you hit me on the head like this,” and proceeded to strike himself on the head to demonstrate. The mother continued to yell at the child and to deny that she had hit him. The visit continued to be tense, and J.J. became increasingly frustrated and agitated with both L.’s and H.’s behaviours. She became particularly frustrated with L. when he did not eat the meal that she brought for him. She told L. that she would not give him the donuts that she brought for him, and then tossed the donuts in the garbage in front of him. The situation continued to escalate, with L. feeding off J.J.’s anger. The Society access facilitator eventually had to tell J.J. to stop, take a breath and calm down. J.J. then began to pressure L. to recant his allegation about being hit on the head.
[32] J.J.’s interactions with H. have generally been more appropriate than with L. However, there have been a number of instances when J.J. has also become impatient and frustrated with H. despite the fact that he was engaging in age-appropriate behaviours. For instance:
On March 17, 2015, J.J. became impatient and angry with H. when he protested about being held by her. She told him to chill, and then finally told him in an angry tone to go away.
During the June 18, 2015, Ms. Phillips observed J.J. being annoyed and short with H. on three separate occasions. During one incident, she grabbed his drink from him roughly out of frustration.
[33] J.J.’s response to the concerns regarding her loud and angry tone with the children is that she is tone deaf and therefore speaks more loudly than most people. She stated in her affidavit sworn April 15, 2015 that she was in the process of seeking the assistance of a specialist to obtain hearing aids to resolve this problem. However, she did not adduce any medical evidence in support of her claim that she has hearing problems, and by the time this motion was heard, she had not adduced any evidence of specifics regarding her search for a specialist.
[34] There have also been concerns that J.J. tends to treat H. in a more positive manner than L. during visits. For instance. Society access supervisors have observed her to show much more affection to H. than to L., and to engage more freely with H. Unfortunately, efforts on the part of Society staff to address this concern with J.J. have not brought about any marked improvement.
[35] Finally, there have been persistent concerns about J.J. making comments to the children which have the effect of assuring them that they will be returning home. For instance, she has told L. that she will be walking him to school next year, that M.M. will not be in the home when the children come home, and that she has a pool of fish at home for the children to watch when they return to her care. Society representatives have repeatedly told J.J. not to make these types of comments to the children, since no final decision has been made to date about the long term plan for them. J.J. has not complied with this request. During the visit on March 24, 2015, she told Ms. Phillips very clearly that she will not stop telling the children that they are coming home. Her response to this concern is that it is difficult to stop reassuring the children that she is trying to get them home when L. keeps asking about coming home. Her inability to refrain from making comments about the children returning home despite the repeated requests from the Society reflects her limited capacity to understand the children’s emotional needs and promote their sense of security.
[36] J.J. suggests that the Society is “nitpicking” about the difficulties during her visits, and that the problems which the Society has identified are inconsequential. I disagree. The intensity of the frustration and anger which J.J. has exhibited during the short periods when she sees the children, and in the presence of Society staff, raises serious questions regarding her general tolerance for the children and her overall parenting capacity.
[37] With respect to the mother’s request that I consider ordering unsupervised access for at least H., I do not agree that such an arrangement would be in H.’s best interests. This request reflects a mindset that J.J.’s difficulties in managing L. are attributable to L.’s problematic character and behaviours. This frame of reference overlooks the true underlying causes of the challenges which J.J. experiences with L. The evidence indicates that L.’s aggressive and impulsive behaviours are to a large extent the result of his exposure to physical and emotional abuse inflicted by M.M. towards him and J.J. The mother has acknowledged this point a number of times to Society workers. I am sensitive to the fact that J.J. has been a victim of this abuse. However, she has remained connected with M.M. for many years and has allowed him to have contact with the children despite the warnings from the Society about the deleterious impact of this relationship on her and the children. Her inability to extricate herself from this abusive relationship, despite the support and encouragement which she has received from the Society, has contributed to the victimization L. and H. J.J. must therefore accept responsibility for the effects of the abuse on L. and H., including L.’s aggression and unpredictable conduct. Furthermore, I find that the challenges which J.J. experiences with L. are also largely due to J.J.’s limited tolerance levels and parenting skills. As I have described above, J.J.’s manner of responding to L.’s challenging behaviours often fuels the tension between her and L. and results in situations becoming out of control. While J.J. has to date had fewer problems dealing with H. during visits, there have been a number of situations in recent months when she has shown frustration and impatience in dealing with him as well. Based on the evidence before me, I conclude that it is likely that her challenges with H. will only increase as he gets older and more independently-minded.
[38] J.J. has presented the maternal grandparents as proposed supervisors for her access. I agree with the Society that supervision of access by the maternal grandparents would not be in the children’s best interests. I recognize that the maternal grandparents have been a tremendous source of support for J.J. and the children. They are to be commended for their efforts and commitment in this regard. However, the maternal grandparents were unable to stop J.J. from maintaining a relationship with M.M. and allowing him contact with the children when J.J. lived with them. Furthermore, I am satisfied that J.J. and her parents have an extremely rocky relationship. There was considerable conflict between them when the mother began living in the grandparents’ home in 2014, and J.J. implored the Society many times to allow her to leave the home with the children. The maternal grandparents also expressed many times that they had difficulty coping with J.J. and the children living in their home. J.J. made numerous allegations against the grandparents during the time when she was living with them, including the following:
That the maternal grandparents were not being kind to her and the children;
That the maternal grandfather had hit her on the head once;
That the maternal grandmother had threatened to leave the child H. in the car while the family went shopping;
That the maternal grandmother had called her a “piece of shit” in front of the children;
That the maternal grandmother had tried to smack her on the face while she was holding H.; and
That the maternal grandparents were not willing to transport her and the children to the Early Years Centre and her appointments as they were expected to do under the arrangement which they had made with the Society.
[39] As further evidence of the difficulties between J. J. and the maternal grandparents, at the commencement of a supervised visit on January 9, 2015 which the maternal grandparents had been approved to attend, J.J. demanded that the grandparents not be permitted to participate in the visit. She became extremely agitated about their presence at the Society’s offices. The involvement of two Society workers was necessary in order to de-escalate the situation.
[40] Based on the evidence respecting the relationship between J.J. and her parents, I am not satisfied that the maternal grandparents would be able to adequately protect the children during visits with their mother. Furthermore, it is clear from the evidence that the children have been exposed to considerable conflict between J.J. and the maternal grandparents. Allowing the maternal grandparents to supervise access would create a significant risk of the children being exposed to further domestic conflict.
[41] Any order for either unsupervised access or access supervised by the maternal grandparents would need to include terms and conditions to deal with the protection concerns in this case. Unfortunately, J.J. has a history of failing to follow through with Society directions and recommendations and court orders aimed at ensuring the children’s safety and well-being. Her inability to comply with Society directions and a court order relating to the children’s contact with M.M. is the most significant example of this concern. Although she finally followed through with the Society’s recommendation that she pursue domestic violence counselling, it took many requests by the Society before she did so. She has refused to follow the Society’s direction to refrain from making comments to the children about returning to her care. These concerns lead me to conclude that J.J. could not be trusted to comply with terms of access aimed at ensuring the children’s safety and well-being.
PART V: TERMS OF ORDER TO ISSUE
[42] On the basis of the foregoing, order to go as follows:
The motion of the Respondent J.J. dated March 20, 2015 is dismissed.
The Society shall forthwith forward a copy of these Reasons for Judgment to the assessment team that is currently carrying out the parenting capacity assessment respecting this family.
The Honourable Madam Justice Deborah L. Chappel
Released: September 2, 2015
COURT FILE NO.: C 83/14
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CHILDREN’S AID SOCIETY OF HAMILTON
Applicants
-and –
J.J. and M.M.
Respondents
REASONS FOR JUDGMENT
The Honourable Madam Justice Deborah L. Chappel
Released: September 2, 2015