COURT FILE NO.: FC-13-1984-2
DATE: 2015/09/02
ONTARIO
SUPERIOR COURT OF JUSTICE
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT
IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990
AND IN THE MATTER OF M. S.-B., born xx‑xx‑2013
BETWEEN:
The Children’s Aid Society of Ottawa
Applicant
– and –
A.S. (Mother)
Respondent
– and –
D.B. (Father)
Respondent
– and –
R.H. and A. H. (Maternal Grandparents)
Respondents
Deborah Bennet, Counsel for the Applicant
Cedric Nahum, Counsel for the Respondent Mother
Douglas Baum, Counsel for the Respondent Father
Sonya Notturno, Counsel for the Respondent Maternal Grandparents
HEARD: August 27, 2015 at Ottawa
REASONS FOR DECISION
on CARE AND CUSTODY HEARING
doyle J.
[1] This is a motion by the Children's Aid Society (the “Society”) for a temporary court order placing the two‑year‑old child, M. S.‑B. with the paternal grandmother, H.B. subject to the supervision by the Society with conditions as set out in the Notice of Motion dated July 8, 2015.
[2] Up until June 23, 2015, the child had been residing with the maternal grandparents (R.H. and A.H.) under a temporary supervision order dated June 4, 2015. This consent Order of Justice Parfett set out twenty‑two (22) conditions including a condition that the mother not reside in their home.
[3] The maternal grandparents and mother breached that condition. On June 23, 2015, the child was apprehended by the Society and placed with her paternal aunt, J.B.
[4] Justice Blishen’s order of June 25, 2015 placed the child on a without prejudice basis, in the temporary care and custody of the paternal aunt, J.B., subject to the supervision by the Society.
[5] Since J.B. was unable to sustain the placement, the Society placed the child with the paternal grandmother, H.B., on July 9, 2015. Justice Shelston’s order of July 9, 2015 placed the child in care or custody of H.B., subject to the supervision by the Society on terms and conditions on a without prejudice basis.
[6] For the reasons below, the court orders the child to be returned to the maternal grandparents, subject to the terms and conditions set out below. Access by the father and his parents will be in accordance with the child’s best interests as determined by the Society. The mother shall not, under any circumstances, attend the maternal grandparents’ home without the written consent of the Society.
Background
[7] The Society apprehended the child on August 27, 2013 (two days after her birth). The child protection concerns included:
(i) a history of cocaine and substance abuse by both parents
(ii) mother testing positive for cocaine during her pregnancy
(iii) the father admitting to drinking every day and testing positive for use of cocaine and marijuana with indicators of alcohol use
(iv) mother alleged emotional and physical abuse by the father
(v) history of domestic violence.
[8] The child remained in hospital until October 24, 2013 due to her issues of withdrawal from drugs in her system.
[9] On October 24, 2013, the Society placed the child with her mother and maternal grandmother at the home of the maternal grandmother for an extended visit. On November 4, 2013 the court granted a temporary supervision order on a number of conditions including:
(i) that the mother continue treatment for her addiction to the methadone program,
(ii) that the mother follow through with recommendations of her addiction counsellor,
(iii) that the mother refrain from the use of illicit drugs,
(iv) that the mother consent to random drug screens through hair follicle testing.
[10] The mother contested the term requiring a hair follicle test for random drug screening.
[11] On February 20, 2014, the parties signed an Agreed Statement of Facts omitting the hair follicle testing condition and a two‑day trial was set for the determination of that issue. The Agreed Statement of Facts signed by all parties indicated that the mother would continue with her methadone program and confirmation that she had not relapsed.
[12] The Society learned that the mother was actively using cocaine and she was using it with the father who was providing the drugs.
[13] On April 30, 2014, on consent, the parties agreed to an Order as follows:
(i) that the child would stay with the maternal grandmother
(ii) the mother was permitted to reside in her mother’s home
(iii) the mother would be entitled to parent the child for a period of two hours at a time on her own
(iv) the mother would follow through with the recommendation of Dr. Ujjainwalla, which included a residential treatment program followed by aftercare.
[14] The Society continued to have concerns regarding the mother’s drug use, the family environment and the child’s safety and well‑being.
[15] The mother’s drug results from the methadone clinic indicated positive for cocaine and benzodiazepines from November 2013 to April 2015. In addition, the Society spoke to Dr. Ujjainwalla, her doctor at Recovery Ottawa, on June 24, 2015 and he indicated that the mother tested positive for cocaine on every urine test that she had had since April 2015.
[16] On February 10, 2015, the supervision order of Justice James provided that the child would live with the maternal grandmother. The mother was required to follow the following conditions:
(i) continue treatment for her addiction through the methadone program
(ii) follow recommendations by her doctor
(iii) make efforts to refrain from use of illicit drugs
(iv) speak to her child protection worker about her cocaine use with support worker present
(v) cooperate with her doctor toward lowering her methadone dose
(vi) seek a referral to pain management clinic
(vii) attend the Amethyst Women’s Addiction Centre for her group programs at a minimum of once per week
(viii) attend the Amethyst Women’s Addiction Centre for individual counselling
(ix) seek admission to and attend a residential program.
[17] In March 2015, the maternal grandparents reported that the mother had withdrawn their money from their bank account and stolen money from them. They also stated that she had missed two appointments for the child, was sleeping a lot and was not involved in the caring of the child. She was also verbally aggressive to them and had thrown an object at the maternal grandfather.
[18] On March 13, 2015, the mother advised the Society that she had been diagnosed with depression, chronic anxiety, Obsessive Compulsive Disorder, postpartum depression and Bipolar II Disorder. She was taking medications for these issues.
[19] On April 1, 2015, the maternal grandfather had told the mother that she had to leave by the time he returned from the daycare from picking up the child. When he returned she was still there and the police were called to remove her from the home. He had been advised by the Society to call the police if she returned to the home.
[20] An early status review application was commenced on May 29, 2015 requesting a further condition that the mother not reside in the home of her parents unless and until she attended and completed an in‑patient treatment program and maintained her sobriety for a period of six months.
[21] Justice Parfett’s order of June 4, 2015 also stipulated that the maternal grandparents would not allow the mother any contact with the child unless approved by the Society and that the grandparents would alert the Society of any family crisis that could impact on the child.
[22] On June 5, 2015, the mother came to the maternal grandparents’ home seeking assistance as she needed a place to stay.
[23] The grandparents indicate that they realize their mistake in allowing the mother to return to their home even though she was in a bad state. When she attended their home on that day, she was hysterical and sobbing. She had indicated that she had been raped twice, been harassed and she threatened suicide. The maternal grandparents were worried as the mother had said the rapist was trying to kill her. They could not turn her away but do admit that they should not have allowed her to come back contrary to the Society court order.
[24] The child was moved from the paternal aunt, J.B., to the maternal grandmother, H.B., on July 9, 2015.
[25] The father has tested negative for illicit drugs since May 2015, except for marijuana. He currently has six (6) hours unsupervised access to the child. He and his parents are residing at the YMCA and have been assured that if the child is placed with them under a supervision Order, the YMCA would arrange the appropriate housing for the child. The father has been free of drugs the last several months.
[26] A comprehensive kinship assessment of the paternal grandmother has not yet been completed.
[27] The mother has been accepted in a residential program with Women Addiction Service Residential Treatment Program in Hamilton, which started on Friday, August 28, 2015. It is a five‑week residential program.
Analysis
[28] Section 64(8) of the Child and Family Services Act, R.S.O. 1990, c. C.11 states: “If an application is made under this section, the child shall remain in the care and custody of the person or society having charge of the child until the application is disposed of, unless the court is satisfied that the child’s best interests require a change in the child’s care and custody.”
[29] In determining the child’s best interest the court is guided by s. 37(3) of that Act:
Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall take into consideration those of the following circumstances of the case that he or she considers relevant:
The child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.
The child’s physical, mental and emotional level of development.
The child’s cultural background.
The religious faith, if any, in which the child is being raised.
The importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family.
The child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community.
The importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity.
The merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent.
The child’s views and wishes, if they can be reasonably ascertained.
The effects on the child of delay in the disposition of the case.
The risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent.
The degree of risk, if any, that justified the finding that the child is in need of protection.
Any other relevant circumstance. R.S.O. 1990, c. C.11, s. 37 (3); 2006, c. 5, s. 6 (3).
[30] The Court notes that the use of the words “shall remain” in s. 64 (8) implies that the status quo must remain in effect unless the court is satisfied that the best interests of the child require a change.
[31] The onus is on the Society to establish that a change is required due to the best interests of the child.
[32] The child has been with her maternal grandparents since she was released from the hospital. She has been with them for two years. Essentially, the maternal grandparents have acted as parents to this child.
[33] The court considers the following factors: she has bonded with the maternal grandparents and has established a routine with them, including attending a daycare nearby.
[34] There is no evidence that while the child was in their care, the maternal grandparents did not provide the proper care to her. The maternal grandparents have provided an adequate and caring home for the child and had protected her from the disruptive behaviour of the mother. She was present during some of the episodes unfortunately involving the mother. The child has been with the maternal grandparents since birth and has established a routine with her. However, as indicated, it is important that the child maintain her relationship with the paternal family as it is in her best interests to be involved with all of the extended family.
[35] I agree that the apprehension of the child from the residence was a “wake‑up call” to the grandparents. They understand the necessity of complying with the conditions of the supervision order terms. The Court acknowledges that it would have been difficult to reject their daughter under those conditions as they existed on June 4, 2015, however, the result will not likely be the same if they allow the mother to return.
[36] The only fault that can lie with the grandparents is their inability to comply with the court order regarding their daughter. The mother was at risk in the community and not in a position to take care of herself due to her multiple issues. This placed the paternal grandparents in a difficult position.
[37] The havoc that was created at the maternal grandmother’s home was not caused by their actions. The mother was the sole cause of the disruptions and their failure was failing to stand up to their daughter and put the child’s best interests first. I am satisfied that the mother has now entered into a residential program and is out of the city, and they have realized their error. A future breach is unlikely to recur.
[38] I am satisfied that the maternal grandparents now fully comprehend the seriousness of the condition that states that they are not to allow their daughter into the home to visit the child. The risk is also diminished because the mother is in a residential program for the next five weeks.
[39] Therefore, the Court orders a temporary supervision order placing the child with the maternal grandmother and maternal grandfather.
[40] With respect to the terms of the temporary supervision order, I am guided by the following sections of the Act: Sections 51 (3.2) and 57 (8) provides the authority for the court to impose conditions on a supervision order and Section 58 (1) deals with access.
[41] I have reviewed the conditions set out in the temporary order of Justice Parfett dated June 4, 2015 and find that the terms relating to the maternal grandparents shall continue.
[42] Also, I order the conditions set out in the Society’s motion dated July 8, 2015 as it pertains to the mother and the father.
[43] If there are issues with respect to the contact between the father and the paternal grandparents, then that will be dealt with at the next court appearance.
[44] I encourage the parties to attend mediation as has been suggested by the Society to deal with possible co‑parenting in the future between both sets of grandparents and the parents.
Madam Justice A. Doyle
Released: September 2, 2015
COURT FILE NO.: FC-13-1984-2
DATE: 2015/09/02
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990
AND IN THE MATTER OF M. S.-B., born xx‑xx‑2013
BETWEEN:
The Children’s Aid Society of Ottawa
Applicant
– and –
A.S. (Mother)
Respondent
– and –
D.B. (Father)
Respondent
– and –
R.H. and A. H. (Maternal Grandparents)
Respondents
REASONS FOR DECISION
on care and custody hearing
Doyle J.
Released: September 2, 2015