Stormont, Dundas and Glengarry v. A.A., 2015 ONSC 697

SUPERIOR COURT OF JUSTICE

Stormont, Dundas and Glengarry v. A.A., 2015 ONSC 697

COURT FILE NO.: 13-666

01/30/15

ONTARIO

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

B E T W E E N:

Children's Aid Society of the United Counties of Stormont, Dundas and Glengarry

Elizabeth MacLennan and Melanie Verdone, counsel for the Children’s Aid Society of the United Counties of Stormont & Dundas and Glengarry

Applicant

A. A.

Myron Breslow, counsel for the Respondent, A.A.

Respondent

R. L.

Helene C. Desormeau, counsel for the Respondent, R.L.

Respondent

HEARD: January 28, 2015

RULING ON MOTION

LALIBERTE, J.

Introduction

1The Respondent mother, A.A., brings a motion in the context of child protection proceedings. The children subject to this litigation are M.L. born […], 2013 and K.L. born […], 2014. She is seeking the following relief:

− The placement of both children in her temporary care and custody subject to the Society’s supervision;

− In the alternative, increased access to the children, including overnights;

− A parenting capacity assessment on both parents, the cost of which is to be borne by the Society.

2The children’s father, R.L. does not reside with A.A. and recognizes that he is not, at this time, in a position to ask that either child be placed in his care. He opposes the mother’s request to reduce his access in order to increase her time with the children. He agrees that a parenting capacity assessment be ordered.

3The Society’s position is that care and custody remain with the Society with access to the parents at its discretion. It is prepared to consent to a parenting capacity assessment provided A.A.’s eldest daughters who reside with her participate in this assessment.

4The issues for the Court are therefore as follows:

− What is the proper temporary care and custody arrangement for these children pending the completion of these proceedings?

− Should a parenting capacity assessment be ordered under section 54 of the Child and Family Services Act?

The Law

5Being subject to an initial child protection application, the issue of the child K.L.’s temporary care and custody arrangement pending the completion of these proceedings must be decided based on the following principles:

i) The paramount purpose of child protection legislation is to promote the best interests, the protection and the well-being of children;

ii) As articulated by Justice Blishen in Children’s Aid Society of Ottawa-Carleton v. T. [2002] O.J. No. 2273 at paragraph 10:

“The Children’s Aid Society must establish on credible and trustworthy evidence, reasonable grounds to believe that there is a real possibility that if the child is returned to his parents, it is more probable than not that he will suffer harm. Further, the Society must establish that the child cannot be adequately protected by terms and conditions of an interim supervision order to the parents.”;

iii) Tenuous or flimsy suspicion will not suffice; what is required is credible, reliable and trustworthy evidence which must be looked at through the lens of the “reasonable grounds” test; the risk of harm must be more probable than not;

iv) If the Court comes to the conclusion that the risk of harm is more probable than not, the next step in the analysis is to determine whether this risk can be managed by returning the child to the parent subject to supervision by the Society.

6The principles which apply in regards to the child M.L. who is subject to status review proceedings on the question of temporary care and custody are as follows:

i) The paramount purpose of child protection legislation is to promote the best interests, the protection and the well-being of children;

ii) As noted by Justice Kuburin in Children’s Aid Society of Algoma v. A.B. 2012 ONCJ 351, [2012] O.J. No. 2625:

• There is a presumption or, at the very least, a legal bias in favour of maintaining the placement of the child with the person having charge of the child, until a final disposition in the status review application;

• The status quo can be changed only if the Court is satisfied that the child’s best interests require change;

• The moving party must first establish that there has been a material change in circumstances related to the child’s best interests;

• The standard of proof required of the person seeking a temporary change is on the balance of probabilities;

• A moving party seeking to change the access provisions has the onus of showing, on a balance of probabilities, that there have been material changes in circumstances such that the child’s best interests warrant a variation.

iii) In the context of a paragraph 64(8) of the Child and Family Services Act motion, the concept of “material change in circumstances” requires evidence which is relevant and bears on a material issue relating to the reasons for the original order under section 57 of the said Act; it must materially call into question the continued validity of those reasons; it must be such that it could have affected the Court.

Discussion

7The Society’s concerns for these children are framed under subparagraphs 37(2)(b)(i), and 37(2)(b)(ii) of the Child and Family Services Act. Specifically, the risks are identified as follows:

− The infliction of physical harm by the person having charge;

− Physical harm caused by this person’s failure to care for, provide for, supervise or protect the children adequately;

− Physical harm caused by this person’s pattern of neglect in caring for, providing for, supervising or protecting the children.

8A review of the affidavit evidence filed in the continuing record reveals that the Society has been involved with the Respondent mother since April 2000. The initial involvement was in regards to her first two children, D.M., born […], 1997 and M.M., born […], 2000. These children stem from a prior relationship. The concerns for D.M. and M.M. have been ongoing since and have been raised by family members, medical personnel, nurses, workers at a shelter for abused women, police officers, neighbours and school authorities.

9The concerns raised include the following:

− the children being exposed to domestic violence and a lack of insight on how such exposure can be harmful;

− The poor condition of the home;

− The use of corporal punishment;

− Apparent indifference towards the children;

− Inattention to the children’s needs;

− Not properly supervising the children; one example is the child M.M. at age 3 being located by the police wandering alone around the Seaway International Bridge wearing only a t-shirt and sandals.

10Through the years, the Society’s implication was intermittent. On occasions, the children were removed from the Respondent mother’s care. In July 2010, they went to reside with their maternal grandmother because of concerns with the state of the home in terms of cleanliness.

11It would appear that the Respondent mother has historically failed to recognize and/or acknowledge any issues she may have in regards to caring for her children.

12The child M.L. who is subject of this motion and status review application, was born on […], 2013. She was apprehended within days following her birth and placed in the home of the Respondent mother’s neighbor as a kin placement.

13On April 29, 2014, on consent of the parties, M.L. was found to be a child in need of protection and was made a society ward for six months with access to the parents at the discretion of the Society.

14On September 26, 2014, M.L. was removed from the kin placement when it was discovered that the kin placement had allowed for overnight access to the Respondent father which was contrary to the Society’s directions. The indication is that the child was at risk by reason of his continued use of illicit drugs.

15The affidavit evidence discloses that the Court’s finding of April 29, 2014 that M.L. is a child in need of protection (which was made on consent of the parents) was based on the following considerations:

− The repetition of the same concerns raised with the first two daughters;

− Lack of caregiving skills;

− Neglect of the children’s basic needs;

− Lack of supervision;

− Poor housekeeping;

− Reluctance and resistance to working with community support services and overall acceptance of own limitations;

− The risk of exposure to domestic conflict and conflicts involving the older daughters;

− The Respondent father’s continued use of illicit drugs.

16The child K.L. was born on […], 2014. He is subject of this motion and an initial application. He was apprehended by the Society while at the hospital following his birth. On November 3, 2014, he was placed in the temporary care of the Society through a without prejudice interim care and custody order with access at the Society’s discretion.

17The Society’s claim that K.L. is a child in need of protection is based, in essence, on the same considerations raised for the child M.L.

18Protection workers Laura Bouchard, Marie-Josee Menard and Carole Berry have provided the following updated information through affidavits sworn on January 26, 2015:

− November 28, 2014 tests confirm the presence of cocaine and marijuana in the Respondent father’s urine;

− In December 2014, the children’s foster mother reported on a number of occasions that the child M.L. had live lice in her hair upon returning from access visits; when the worker attended the Respondent mother’s home on December 18, 2014 to investigate, she became irate, yelled and referred to the worker in vulgar terms and refused to have her hair looked at; she later apologized and numerous nits were located in her hair; she refused treatment but subsequently called the Society for treatment;

− On January 4, 2015, the police attended the Respondent mother’s home at 5:00 a.m. in response to an incident involving her 14 year old daughter M.M. and her friend in the context of a party; the young teenagers were found to be very intoxicated; certain individuals had been stabbed; the Respondent mother was not present; the officer described the home as “disgusting”, with dirty furniture, clothes all over the floor, food on the floor and cigarette butts everywhere; there was no food in the fridge; it was revealed that a similar incident had occurred on June 21, 2014 when the police had attended the home and observed several teenagers intoxicated; the Respondent mother was present on June 21, 2014 when the police attended her home; this had never been disclosed to the Society;

− On January 7, 2015, the Respondent mother denied any knowledge concerning the use of alcohol and drugs in her home; in essence, her response to the suggestion that there was a lack of supervision and structure in the home was that her daughter should be held accountable for her own behaviours;

− On a positive note, the affidavit of child protection worker Marie Josee Menard dated January 26, 2015 and the case notes attached to the Respondent mother’s affidavit sworn January 21, 2015 reveal that improvements have been noted on the care given to the children by the Respondent mother; the Court notes the following as examples:

• She does well soothing K.L. when he is crying; she is able to recognize when he is hungry;

• She has followed recommendation when putting on a new diaper;

• She is often able to multitask when caring for both children;

• She seems to better understand the significance of maintaining a clean home.

19Having considered all of the circumstances and the relevant principles, the Court comes to the following conclusions on the issues raised in this motion:

1. The evidence filed by the Society in support of its position in this motion and filed in the continuing record is found to be credible and trustworthy in the circumstances. The information provided is detailed and logical. There are no contradictions. There are no apparent reason why the workers would provide misleading information and/or exaggerate. There is consistency in the evidence provided by the various workers.

2. In regards to the child M.L., the Court is of the view that the Respondent mother has not met the onus of establishing, on balance, a material change in circumstances. She is still a young child and being eight (8) months older then when the order was made on April 29, 2014 does not amount to a significant change going to the core of why this child was found to be in need of protection. While improvements have been noted and recognized, the long standing nature of the care issues and recent events, make it such that the concerns remain and are not counter balanced by the fairly recent improvements;

3. As for the child K.L., the Court finds that the evidence is such that the Society has met its initial burden and has established, on balance, the existence of reasonable grounds to believe that there is a real possibility that if the child is returned to the Respondent mother’s care, it is more probable than not that he will suffer harm. This finding is based on the following:

− There is a long history of concerns in regards to care provided by the Respondent mother to her children;

− The Respondent mother has shown little progress when one considers the resources, support and guidance provided to her since the Society’s first involvement in April 2000;

− K.L. is a very young child in need of structure and consistency in care;

− The Respondent mother’s position in regards to the recent January 4, 2015 is of concern to the Court; the fact that the incident occurred is indicative of lack of control and structure; how she responds to this incident having occurred is indicative of a lack of appreciation of the responsibilities attached to being a parent of a child at any age. Therefore the Court is led to the conclusion that there is a strong probability of risk for K.L. if placed in his mother’s care and custody.

4. The same considerations lead the Court to the conclusion that the risk of harm to K.L. cannot be adequately managed by terms and conditions of a supervision order by the Society.

5. While the recent improvements and the fact that the daughter M.M. was recently removed from the home by the authorities by reason of the January 4, 2015 events, would certainly warrant an increase in the present access to the children, the Court will not order specific access. The Court’s reasoning is as follows:

− Recent events have shown that the Society’s discretion is necessary;

− The Society’s discretion is not absolute, it is to be exercised in keeping with the purposes of child protection proceedings as set out in the Child and Family Services Act; while the Respondent mother may feel that she has been treated unfairly and/or with excess zeal, there is no basis for the Court to come to a conclusion that the Society has not properly exercised its discretion.

6. The Court is prepared to order the preparation of a parenting capacity assessment under section 54 of the Child and Family Services Act. However, the parties need to provide the Court with particulars of what is being proposed in terms of the person who is to prepare this assessment and the questions. The Court also requires to know what is being proposed for the older children M.M. and D.M. as to their participation and the concerns relating to their privacy interests. The parties should set an appearance date before the Court to discuss this issue once the information is available.

Conclusion

20For the reasons indicated in this ruling, the Respondent mother’s motion is dismissed save for the request for a parental capacity assessment subject to particulars being provided to the Court.

Justice Ronald M. Laliberte Jr.

RELEASED: January 30, 2015

Stormont, Dundas and Glengarry v. A.A., 2015 ONSC 697

COURT FILE NO.: 13-666

01/30/15