NEWMARKET COURT FILE NO.: FC-15-48490-00

DATE: 20150910

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Children and Family Services for York Region

Applicant

– and –

A.A. Respondent

– and –

A.H. Respondent

– and –

D.L. Respondent

– and –

A.H.M. Respondent

Alison Moonsie-Mohan, Counsel for the Applicant

Regina Senjule, Counsel for the Respondent

Deborah Herriot-Howes, OCL

HEARD: September 1, 2015

RULING ON MOTION

PUBLICATION RESTRICTION NOTICE

Pursuant to subsection 45(8) of the Child and Family Services Act, there is a ban on disclosing the name of any person involved in the proceedings as a party or a witness or any information likely to identify any such person. This judgment complies with this restriction so that it can be published

JARVIS J.:

[1] The respondent mother has brought a motion that four children now in foster care be placed in her temporary care and custody subject to supervision by the Society.

Background

[2] The mother respondent (hereinafter “Ms. A.A.”) is the biological mother of A.A. (born […], 2006), A. Jr (born […], 2009), S.A. (born […], 2012) and D’A. (born […], 2015).

[3] On June 4, 2015 A.A., A. Jr., and S.A. were apprehended from Ms. A.A.’s care and, as of the date of argument of Ms. A.A.’s motion, were in foster care. D’A. was apprehended on August 14, 2015. The basis of the Society’s claim was a risk to the children both in terms of failure to care and neglect by Ms. A.A. as well as the likelihood of emotional harm being suffered.

[4] The father of A.A. and A. Jr. is deceased. S.A.’s father has no, or very little, contact with him, and A.M. is the father of D’A.

[5] Before the children were apprehended, A.A. and the children had been involved with the Toronto Children’s Aid Society. The Toronto CAS had opened its file in March, 2014 dealing with A.A. and S.A.’s care but, far more problematic, was Ms. A.A.’s relationship with an A.M. about whom the Toronto CAS had an extensive record of domestic violence extending as far back as January 2006 (with a previous partner) and which included Criminal Code charges and disregard of Bail conditions.

[6] The Society began working with the family voluntarily in late November 2014 to deal with concerns about the proper supervision of the children. Mr. A.M. was then cohabiting with Ms. A.A. Afterwards, there were a number of contacts with third parties involving non-supervision of the children and school attendance issues by the older two children.

[7] On or about February 18, 2015 Mr. A.M. was charged with assaulting Ms. A.A. in their residence. A videotaped interview of Ms. A.A. by York Regional Police dealing with the alleged assault was transcribed, and it described a home environment of graphic, and repeated, physical abuse, including mistreatment of the children.

[8] A court date for Mr. A.M. was scheduled for June 10, 2015.

[9] After A.M. was charged but before his court date, Ms. A.A. told the family service worker assigned to her file that all the information that she had given to the police and to the Society about the assault was false, that she intended to recant her statement to the police, and that she planned to reconcile with Mr. A.M. Regular contacts by the Society with Ms. A.A., school authorities and community services heightened the Society’s concerns about the children’s existing, and future, care.

[10] As already noted A.A., A. Jr. and S.A. were apprehended on June 4, 2015.

[11] Ms. A.A. recanted her statement to the police on June 10, 2015.

[12] Mr. A.M. was convicted and received a suspended sentence with three years’ probation and a non-revocable (by Ms. A.A.) contact order with respect to Ms. A.A. and the children.

[13] Ms. A.A.’s motion was brought before, but amended after, D’A’s birth so that all the children could be returned to her temporary care and custody.

[14] In the affidavits she filed, Ms. A.A. avoided any acknowledgement that she had lied to the police when Mr. A.M. was charged, indicating instead that she was angry with Mr. A.M., that she was overwhelmed with having to deal with her health concerns due to her pregnancy, the police, and the possibility of losing her children. She had limited resources and a small support system. The details of the violence she had told the police related, she said, to past events that occurred in her relationship with the father of A.A. and A. Jr.

[15] Ms. A.A. disputed the veracity of nearly all of the Society’s allegations, and complained about the children’s foster care and inconsistent or inadequate community support.

[16] The OCL advised the court that she had met the three older children on at least one occasion and wished more time to meet with them at least twice again to obtain a better sense of how they were doing in foster care, and their circumstances. A.A. was described as articulate and insightful, wanting to return to her mother’s care: A. Jr. and S.A. (who were together) were happy and content, exhibiting no signs of distress.

[17] The Society and the OCL argued that Ms. A.A.’s motion was premature. Most important from the Society’s standpoint was that Ms. A.A. did not appear to acknowledge the impact, on her life and those of the three older children, of the history of domestic violence all had experienced. Ms. A.A. “took no ownership” of anything. She needed to undertake counselling, and learn how to safely care for the children. The OCL wished more time to interview the children. Ms. A.A. wanted the children returned to her care immediately.

Analysis and Disposition

[18] In its amended application the Society has sought an Order that the children be made wards for a period of six months and that access be at the discretion of, and supervised by, the Society or its designate. The mother’s plan has the children returning to her care and custody subject to the supervision of the Society.

[19] The combined effect of Sections 51 (2) (c) and (3) of the CFSA provide that where there “are reasonable grounds to believe that there is a risk that the child is likely to suffer harm and that the child cannot be protected adequately by an Order” then, as in this case, a temporary Order can be made that includes foster care.

[20] Despite Ms. A.A.’s feeling that reuniting the children under her care and custody is in their best interest because that would keep the family together, there is a real risk in my opinion that one or more of the children will suffer harm or cannot be protected adequately if returned to Ms. A.A.’s care and control.

[21] My reasons are set out below.

(a) Domestic Violence

[22] The father of A.A. and A. Jr. was murdered during a drug-related incident. Mr. A.M. has a significant history of domestic violence. Ms. A.A. reported to a Toronto CAS worker that the two older children had witnessed a lot of violence in their previous home in St. Vincent.

[23] The transcript of the videotape of her interview taken by the police when Mr. A.M. was charged with her assault and uttering death threats is graphic and chilling. Ms. A.A. said that Mr. A.M. kicked her in the stomach (she was pregnant) was “always threatening me to kill me if I call the police he’s gonna make sure he cut my throat first, make sure I am dead, so he’ll get a good reason for the police to – to jail him” and “he’s gonna gonna cut my throat and drain my blood. And this is not the first time he’s telling me so. In front of my kids he always say those things.”

[24] If Ms. A.A. was prepared to lie to the police, this court cannot be confident that she is now telling the truth that she will not repartner with Mr. A.M. Nothing in her evidence demonstrates any insight how the domestic violence and abuse she and the children have suffered has affected them and what steps she can reliably take to protect the children from this behaviour in future.

(b) Abuse

[25] In dealing with the abuse she had experienced Ms. A.A. stated in the transcript of the videotape that Mr. A.M. was always “threatening me…And I always forgive him. I always because he kind of have a way that he kind of begs me, so he kind of makes me feel like puppy love that I forgive him…So that’s why I’ve been with him for so long putting up with this.”

[26] These are the words and actions of a victim of domestic violence.

(c) Inconsistent Evidence

[27] Ms. A.A.’s transcribed interview with the police was clear and internally consistent with the events of her current life. While she recanted her statement to the police because she wanted to tell “the truth” several of the incidents which she described as involving the children five years earlier could logically not have taken place. There is some truth to the Society’s concern that Ms. A.A. will tailor her evidence to her audience regardless of the truth, and I agree.

(d) Mr. A.M.

[28] In Ms. A.A.’s affidavit, and in those filed on behalf of the Society, it is clear that Ms. A.A. wishes to renew her relationship with Mr. A.M. Despite a non-contact order involving Mr. A.M. a Society worker reported an incident where Ms. A.A. was communicating by text with a third party whom Ms. A.A. declined to identify but whom the children called “Daddy”, which they often had called Mr. A.M. but which Ms. A.A. explained referred to her father in St. Vincent. Ms. A.A. declined to show the Society worker an example of the texts being exchanged when asked. Elsewhere, Ms. A.A. reported that she loved Mr. A.M. and needed him for the support of the children and her.

[29] In the court’s opinion the evidence is overwhelming that the children’s safety will be risked if they are returned to the care and custody of Ms. A.A. at this time. In spite of her desire to reunite her family, there is little in the record that demonstrates any appreciation by Ms. A.A. of the impact upon her, and the children, of the violence and abuse she suffered and has described the children as witnessing. If, for example, the texting that she was suspected of engaging with Mr. A.M. was so innocuous and involved her father, why, in the circumstances, would she decline to share at least its details with the Society’s worker? Either Ms. A.A. lied to the police when she accused Mr. A.M. of assaulting her, or she has lied to the court. A casual regard for the truth provides little assurance to the court about the children’s safety and well-being should they be returned to the temporary care and custody of Ms. A.A. Accordingly, her motion is dismissed.

Justice D.A. Jarvis

Released: September 10, 2015