Children’s Aid Society of Ottawa v. A., 2015 ONSC 724
COURT FILE NO.: FC-12-2943
DATE: 2015/02/02
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 A.A.1, born […], 2004 and A.A.2, born […], 2002
BETWEEN:
THE CHILDREN’S AID SOCIETY OF OTTAWA
Applicant
– and –
H.A. (the mother)
Respondent
Marguerite Lewis, for the Applicant
Unrepresented
Marcelle Story, the Children’s Lawyer
HEARD: January 29, 2015 (at Ottawa)
REASONS FOR JUDGMENT
m. linhares de sousa j.
[1] This matter involves a Status Review Application brought by The Children’s Aid Society of Ottawa (the Society) with respect to two children, A.A.1, born […], 2004, and A.A.2, born […], 2002. The Society seeks a final order of custody to the maternal grandmother, Ms. B.D., pursuant to s. 57.1 of the Child and Family Services Act, R.S.O. 1990, c. C.11 as am. (“CFSA”).
[2] The father of the children, Mr. H.A., is deceased. The children’s mother, Ms. A. contests the application and has filed an Answer in which she seeks to have the two children returned to her care. The mother did not make an appearance at the trial that had been set for some time and the matter proceeded in her absence.
[3] The plan of care presented by the Society in this matter is a kinship placement. Since 2012, the children have been living in Ms. D.’s home and being cared for by her and by a maternal aunt, Ms. H.A., who also lives in the home. The children went to live with Ms. D. and the aunt, Ms. H.A., in 2012, with the consent of the mother, who at that time recognized that she had an addiction to alcohol. The Society had been involved with the family for some time before, which brought the matter to light.
[4] Ms. Nathalie King, the Society case worker testified that the protection concern for the Society in this matter was the mother’s abuse of alcohol and her inability to care for the children when she was drinking, such as not knowing where the children were and exposing the children to individuals that may have put her children at risk. According to Ms. King the pattern with the mother appeared to be binge drinking with periods of sobriety that have gone on for the whole time during which she has been involved in the case.
[5] Both Ms. D. and the aunt, Ms. H.A., testified that they recognized when the mother was drinking by her demeanour, aggressive and rude behaviour towards them. She became unreliable in her visits and calls to the children. They also testified that the mother was a good, caring and engaged mother when she was sober.
[6] Ms. King testified that she worked very diligently with the mother to get her to recognize her addiction, to commit to rehabilitation programs and to follow through on the after care programs. Ms. King described in detail the various and numerous rehabilitation programs attempted by the mother, including residential ones, but without complete success with any of these attempted programs.
[7] The mother’s last relapse was in October, 2014, at which time, when confronted by her relapse by Ms. King, she informed Ms. King that she would not go on trying and stated that the children should be given to her mother, Ms. D. Furthermore, since October of 2014, the mother has not seen the children or attempted to make arrangements to see them. She has also refused to speak to her mother or sister. Although, she has continued to speak to the children on the telephone, including the day of the trial.
[8] The evidence relating to the children is on the whole positive. Since moving to the home of their grandmother they have done well and are thriving. When they began to live with their grandmother and aunt they did not have a family doctor or dentist. This has now been provided for by their grandmother and aunt. Two years ago the children were experiencing some academic delays. This too has been taken care of by Ms. D. and the aunt who made sure the children received and continue to receive the extra help and tutoring they need.
[9] Ms. D. is 60 years old and has had some health problems in the past but is now healthy and well able to care for the two children. The extended family is very close and the aunt, Ms. H.A., testified that she helps Ms. D. in the care of the children. It was her evidence that she would always be there to care for the children if it were necessary in the event that the mother could no longer do it.
[10] By all accounts, the children are healthy and doing well at school. They are happy, active children with many friends. The children are also part of a large and close extended family who they see frequently. Through their family the children also participate in religious instruction in the Koran and family prayer.
[11] Emotionally, the children are very close to their mother and as their counsel submitted to the Court their first preference would be to return to their mother’s care but, they want that, only without the alcohol. A.A.1 worries about her mother. The children have evidently lived through a number of disappointments caused by their mother’s unreliability when she is drinking. They have, however, become resigned to it.
[12] According to their grandmother and aunt the two children welcome any contact they get from their mother. Ms. A. has continued her telephone contact with the children and over the years she does not seem to have interfered with her mother’s care of the children nor ever attempted to destabilize the children’s living arrangement. Ms. D. and the aunt, Ms. H.A., recognize the importance of the children’s mother in their lives and the attachment the children have to their mother. They have made every reasonable effort to facilitate the children’s contact with their mother while at the same time protecting them from the risks of the mother’s alcoholism. They continue to welcome the mother into their home as long as she is sober and in fact there have been such family visits in the past. It would appear that continued contact between the children and their mother in a controlled setting would be in their best interests.
[13] All decisions relating to the care of the children and to access to the children is to be determined on the basis of what is in their best interests. After examining all of the factors listed in section 37(3) of the CFSA relating to the best interests of children and applying those factors to the facts of this case I come to the following conclusions.
[14] The maternal grandmother and maternal aunt have been able to meet the children’s physical, mental and emotional needs in a consistent way while the mother has not. The children continue to have those needs met and are thriving in the care of Ms. D. and the aunt, Ms. H.A.
[15] The placement is with extended family who is able to provide the children with cultural and religious consistency.
[16] The children are very much part of a large extended family. The continuing relationship with their mother, even though she cannot care for the children, is valued and encouraged, while being safe for the children.
[17] The children have lived on a full-time basis with their grandmother and aunt for the last two years. The Society’s plan is one of security and continuity. The mother’s plan is extremely uncertain, with respect to risk to these children, in view of the total absence of evidence to show that the mother can sustain her sobriety beyond a few months at the most. Based on the evidence relating to her conduct since October, 2014, she appears to have given up even trying to get the children back in her care and dealing in a serious way with her alcoholism. The risk of failure, if the children were to be returned to the care of her mother, is high with all of the physical and emotional disruption that would cause to the children. In that respect, the Society’s plan has the greater merit over that of the mother’s plan.
[18] Based on the submissions of their counsel, the children clearly would prefer to be in the care of their mother but without the alcohol. There is no persuasive evidence to show that the mother is willing to choose her children over her desire for and dependency on alcohol at this time. The children’s first wish cannot at this time be satisfied without serious risk to their well-being.
[19] The Society first became involved with this family as a result of a drunken episode with the mother in 2010. The Society has been actively involved with the family since 2012. Ms. A.’s pattern of behaviour over the last two years, can be described as periods of sobriety where she demonstrates moments of insight into her alcohol dependency followed by relapses where she shows little will or insight into committing to do and follow through on what she must do to deal with her alcoholism. Currently, she seems to be stuck in the latter pattern. Ms. A.’s mother continues to hope that her daughter will deal with her alcoholism and be able to take on the care of her children once more. From the mother’s point of view there is a long future for her to do this. However, from the children’s point of view, the time has come, in the interests of their stability and finality in their lives to make a final decision in this child protection matter.
[20] All of the above leads me to the conclusion that it would be in the best interests of these children to remain in the care of their grandmother and to have the Society withdraw from their lives. For all of these reasons, there will be a final order of custody to Ms. B.D. of the two children pursuant to s. 57.1 of the CFSA.
[21] It is clearly also in the best interests of the children to have continued contact with their mother in a controlled setting where they will be protected from their mother’s alcoholism. Ms. D. has always encouraged and ensured access between the mother and the children. The children shall, then, have access to their mother at the discretion of the Ms. D.
M. Linhares de Sousa J.
Released: February 2, 2015
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 A.A.1, born […], 2004 and A.A.2, born […], 2002
BETWEEN:
THE CHILDREN’S AID SOCIETY OF OTTAWA
Applicant
– and –
H.A. (the mother)
Respondent
REASONS FOR JUDGMENT
M. Linhares de Sousa J.
Released: February 2, 2015