ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT
BETWEEN:
CHILDREN’S AID SOCIETY OF LONDON AND MIDDLESEX
Sandra Welch, for the applicant
Applicant
- and -
N.E., D.L., and L.E.
Respondents
Sahra Panjwani, for the respondent N.E.
David Winninger, for the respondent D.L.
Tamra Mann, for the respondent L.E.
Darlene Daley, for the Office of the Children’s Lawyer
HEARD: September 9, 2015
ASTON J.
[1] This is a temporary care and custody hearing under s. 51 of the CFSA respecting three children, P.E. (age 13), M.L. (age 7) and P.L. (age 5).
[2] There is no contest with respect to the oldest child, who has been in the care of his maternal grandmother L.E. since the children were apprehended at the end of April. Having regard to the evidence and to the consensus of the parties, I am satisfied it is in the best interests of P.E. that he remain in the temporary care of his grandmother L.E., subject to supervision by the Society and on terms and conditions noted later in this decision.
[3] D.L., the father of the two younger children, seeks temporary care and custody of them. The contest is between him and the maternal grandmother L.E. The mother N.E., from whom the children were apprehended, supports her mother. Counsel for the Office of the Children’s lawyer supports the father. The Society adopts a neutral position as between the father and the maternal grandmother. Its protection concerns are limited to the mother’s parenting capacity.
[4] At the outset of the hearing, counsel for the mother sought an adjournment, supported by the maternal grandmother who has had the children in her care since a “without prejudice” order was made on the first return date of this application May 5, 2015. The father opposed the adjournment request.
[5] The primary reasons for the adjournment request (apart from the obvious incentive to preserve and extend the status quo) were that the mother had only been served with the father’s material the Thursday before this hearing on a Tuesday. She asserts a need to not only respond to his material but also to address approximately 2,000 pages of historical records of the CAS going all the way back to 1989. Given the fact that L.E.’s material was only served on the father the previously Wednesday I rejected the suggestion that the timing of his material was unfair or a tactical strategy.
[6] The Family Law Rules require temporary care hearings to be conducted within 35 days of the apprehension of the child. In this case, the hearing is already more than three months overdue. It has already been adjourned once. The next available date would have been more than a month away.
[7] I refused the adjournment request at the outset of the hearing but reserved the right to reconsider it if it turned out there was any apparent prejudice to the mother or grandmother. Having heard the lengthy and detailed submissions, I am satisfied that the mother and grandmother have been afforded a fair opportunity to present evidence and to be heard on the merits, keeping in mind the context. Temporary care and custody hearings are almost always determined on untested affidavit evidence. Section 51(7) of the CFSA provides that on temporary care hearings “the court may admit and act on evidence that the court considers credible and trustworthy”. This statutory expansion of the strict Rules of Evidence is implicit recognition of the need to avoid delay. In this case, for example, it allows the mother to simply file historical CAS records then selectively refer to them (as she did) without the need to prepare a formal affidavit. Counsel for the grandmother submitted she might wish to bring a motion to strike parts of the father’s affidavit. In my view, the alternative of addressing evidentiary concerns in the course of submissions is, in general, preferable to a separate motion when such a motion will delay the hearing on the merits.
[8] Turning then to the merits of the matter: it is clear from the CAS evidence that there are reasonable grounds to believe there is a risk of harm to the children which cannot be protected adequately by an order returning them to their mother, even under CAS supervision. On the other hand, the Society is not seeking an order that the children be placed in its care. The issue is whether to place ML and P.L. with L.E. or D.L. and on what terms and conditions, including access.
[9] The overarching consideration is the best interests, protection and well-being of the children but the order must be consistent with the additional purposes in s. 1(2) of the CFSA requiring consideration of the least disruptive action that is available and appropriate, and the (self-evident) value of stability and continuity of care for children.
The Children’s Aid Society
[10] The Society adopts a neutral position. In its view there are no protection concerns with respect to either the grandmother or the father. Though the CAS placed the children with their grandmother at the time they were apprehended, it has now had the opportunity to observe the father interacting with the children and the apparent bond he has with them. The Society has reevaluated, and apparently revised, its earlier view that his complaints regarding the mother’s parenting were made in bad faith or to manufacture evidence for the custody dispute. At the very least the CAS now accepts that it can work with either the grandmother or the father under the terms of the supervision order to promote the best interests of the children.
The Grandmother, L.E.
[11] Ms. L.E.’s counsel describes her as “an island of calm” for the children who have been at the centre of a lengthy high-conflict custody battle between the parents. She has been actively involved in a care-giver role since the children were born, primarily as a support person for their mother who has been their primary care-giver. She sees herself as a temporary replacement for her daughter N.E. until N.E. can resume full-time responsibility for the care of all three children. Apart from her willingness and ability to safely and adequately look after the children on a day-to-day basis, she offers up two basic reasons to support her plan of care: 1) it would keep all three siblings together, and 2) it will avoid giving the father the opportunity to “poison” the children against their mother. L.E. says she would promote the father’s ability to participate in the children’s lives. I am skeptical of that. She is closely aligned with her daughter and it is reasonable to infer from the evidence she considers the father an adversary. For example, instead of thanking the father for picking the children up at school and delivering them to her when no one else was available she complained to the school about calling the father, rather than thanking him. She has not afforded him the court ordered telephone access that had been in place before the children were apprehended.
[12] The oldest child P.E., who has cerebral palsy and requires very considerable time and attention, has a close relationship with his younger siblings. I do accept that it is in the best interests of P.E. and the younger children to have an opportunity to continue their close sibling bond.
[13] Although the three children have been with their grandmother since the beginning of May, the order of May 5, 2015 was “without prejudice” and the status quo of the last four-and-a-half months (mainly attributable to systemic delay) is only marginally important as a factor in the disposition in this motion.
The Mother, N.E.
[14] N.E. does not seek return of the return of the children to her at this time. Rather she supports her mother’s plan of care. She points out that “risk” to children includes the risk of dislocating or undermining a child’s relationship with its primary care-giver as a consequence of an order placing that child with someone who is an adversary of the “custodial parent”. She is, quite rightly, concerned that placement of two younger children with the father may give him a significant advantage in their ongoing custody dispute. Just before the children were apprehended from the mother, the parents were in the midst of a custody trial in a case that had been started back in 2010. The custody trial was stayed as a consequence of the apprehension of the children. N.E.’s counsel describes the father D.L. as a determined and aggressive litigant in a high-conflict case. She asks the court to infer that if he is afforded the opportunity he will cause emotional harm to the children by effectively undermining their bond with their primary care-giver, the mother, and with their older brother P.E. This type of concern has been recognized by the courts in the past. See, for example, Children’s Aid Society of Ottawa v. I.T. and R.T., 2013 ONSC 4070 and Children’s Aid Society of the County of Dufferin v. L.D. and J.G. (unreported, tab 7 of the mother’s book of authorities).
The Father D.L.
[15] Since 2011 the father has had the two younger children in his care on a regular basis, including alternate weekends and overnights on Wednesday each week. He also has joing custody of a 14 year old who lives with him 50% of the time. He has been living with his own parents, so M.L. and P.L. have had a chance to develop a bond with their paternal grandparents and half sister when with their father.
[16] Mr. D.L. says he supports the idea that M.L. and P.L. should continue to spend considerable time with their brother P.E. but points to the advantage they would gain if not constantly competing with P.E. for a single caregiver’s time and attention.
Findings and Analysis
[17] It is clearly in the best interests of these three children that they spend frequent and regular time together. That could be accomplished through an access order. It is not necessary for the three siblings to reside in the same home on a day-to-day basis to foster their sibling bond.
[18] P.E.’s special needs place an onerous responsibility on his primary care-giver. He requires near constant supervision. Though the grandmother is confident she can manage all three children, her confidence may represent the triumph of hope over reality. It apparently proved to be too much for the mother to manage. Moreover, the grandmother’s other daughter Veronica, who knows the situation and the people here, apparently has misgivings about her mother’s ability to handle all three children even while wanting to support her mother and her sister.
[19] The children have had regular consistent time with their father since they were apprehended. They had even more time in his care before that. He has demonstrated an ability to look after them on a day-to-day basis in a safe and appropriate manner.
[20] The fears of the mother and the grandmother that the father would use a temporary custody order in his favour to turn the children against their mother are probably genuine fears they have, but in my view those fears do not justify the rejection of his proposal. First, on the facts of this case he must be afforded very generous access at the very least. He would have the opportunity L.E. and N.E. are afraid of whether he has day-to-day care or merely generous access.
[21] More importantly, the father’s conduct in this case is not nearly as extreme as in the cases cited by counsel for the mother. The evidence here falls short of establishing that the father poses the kind of risk of emotional harm to the children described in those cases.
Disposition
[22] An order is granted placing P.E. in the temporary care and custody of his grandmother L.E., subject to CAS supervision and on the terms and conditions noted below.
[23] The children M.L. and P.L. shall be placed in the temporary care and custody of their father D.L., subject to CAS supervision and on the terms and conditions noted below.
[24] L.E. shall have reasonable access to M.L. and P.L. not less than three days per week and including at least one overnight.
[25] The mother N.L. shall have reasonable access to all three children, the frequency and duration to be approved by the Children’s Aid Society. The CAS shall have discretion with respect to whether such access is supervised and the level or manner of such supervision.
[26] The father D.L. shall have reasonable access to P.E., if requested, to be arranged in consultation with the Children’s Aid Society.
[27] The terms and conditions set out in paragraphs 81(i) to 81(xi), inclusive of the affidavit of CAS worker Megan Dryfhout sworn May 4, 2015, shall apply with respect to all three children.
“Justice D. R. Aston”
Justice D. R. Aston
Released: September 24, 2015
COURT FILE NO.: 546/15-01
DATE: 20150924
ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT
BETWEEN:
CHILDREN’S AID SOCIETY OF LONDON AND MIDDLESEX
Applicant
- and -
N.E., D.L. and L.E.
Respondents
REASONS FOR JUDGMENT
ASTON J.
Released: September 24, 2015