SUPERIOR COURT OF JUSTICE – ONTARIO

FAMILY COURT

COURT FILE NO.: C208/12-06
DATE: December 11, 2015

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT

RE: CHILDREN’S AID SOCIETY OF LONDON AND MIDDLESEX, Applicant

AND:

K.P., M.T., D.P. and B.P., Respondents

BEFORE: JARVIS J.

COUNSEL:
Christine McLeod for the Society

Tamra A. Mann for K.P.

B.P. in person

M.T. and D.P. not appearing

Patricia Miller for the Children’s Lawyer

HEARD: December 4, 2015

ruling on motions

[1] In this matter involving the child, A.P., born […] 2006, there are three motions before the court as follows:

(1) the Society seeks an order that the mother, K.P., not allow her partner, K.B., into her residence or have any contact with the child, and that the child have once weekly overnight access with her maternal grandmother, B.P.;

(2) B.P. seeks an order placing the child in her care and custody or, in the alternative, once weekly overnight access;

(3) K.P., the mother, with whom the child resides pursuant to a supervised placement Order, opposes B.P.’s motion and asks for access terms by B.P. different than what B.P. proposes.

[2] The Society does not oppose B.P.’s motion. B.P. represented herself. The mother was represented by counsel. The child was represented by counsel appointed by the Office of the Children’s Lawyer.

[3] These are the procedural facts which are relevant to this matter:

(a) the child is 9 years old. Her biological father has not played any role in her life;

(b) the Society became involved with K.P. and the child shortly after the child’s birth. Protection concerns over the years focussed on domestic violence involving numerous partners of the mother, unhygienic home conditions, anger management and mental health issues. The mother had a diagnosis of borderline personality disorder and anxiety;

(c) due to concerns about the mother’s behaviour, the Society became involved and, after the mother was incarcerated in 2011/2012, the child resided with her maternal grandparents;

(d) on February 9, 2012, a Protection Application was commenced and, later on May 31, 2012, the child was found to be in need of protection. She had earlier been returned to her mother’s care subject to a supervision Order that has remained in place since then;

(e) in late 2014 and again in mid-2015, concerns arose with respect to the mother’s choice of partners, domestic violence, the mother’s substance abuse and her failure or refusal to acknowledge how her behaviour was affecting the child, who was reporting safety fears to third parties, those mostly associated with her mother’s partners;

(f) a final Order was made by Gorman J. on January 22, 2015 placing the child with K.P. subject to Society supervision;

(g) on June 16, 2015, the Society commenced a Status Review application for additional terms to protect the child from K.B. That order was granted by Aston J. on June 18, 2015.

[4] By all accounts the child is described as healthy, active, personable and otherwise thriving. She will shortly be 10 years old. Underlying the foregoing narrative though is K.P.’s seeming inability to prefer the child’s need for safety over her need for a relationship.

[5] Counsel for the child comprehensively detailed, and fairly summarized, the evidentiary record of the child and her extended family, and the Society’s involvement preceding the current motions. Prominent amidst the evidence, little of it conflicting, often a matter of differing perspectives, is the continuing concern about K.P.’s lack of understanding of the risks that her behaviours, particularly her choice of partners, have already and may in future pose for the child. Court orders have either been ignored by the mother or, despite their unambiguous directives, rationalized by her as inapplicable. Some examples:

(a) a final order was made by Gorman J. on January 22, 2015 that a previous partner of K.P. (“M.H.”) not be permitted to reside in or attend at K.P.’s residence when the child could reasonably be expected to be there. This order was a continuation of earlier orders (also referencing K.P.’s partner) and contained a rather standard provision that K.P. refrain from the use of any physical or verbal aggression in the child’s presence, and to ensure that the child was not exposed to any adult conflict or domestic violence. As recently as October 19, 2015, M.H. was introduced to the child’s uncle at K.P.’s residence while the child was present in the home. The child reported that K.P. coached her to lie that the uncle was mistaken. This evidence is unchallenged by K.P.;

(b) K.P. minimized M.H.’s three year custodial sentence for assault, saying it was no “big deal, just a bar fight”. This is unchallenged;

(c) K.P. commenced a relationship in early 2015 with K.B. Within seven weeks they married. Whether K.P. married for love or convenience to facilitate K.B.’s efforts to become a Canadian citizen is uncertain (the evidence is contradictory). An incident of domestic violence involving K.P. and K.B. was investigated by police in late May 2015 in which it was alleged that K.B. had choked K.P. and had been physically aggressive with the child. A wall was damaged, a hole made by K.B. during the argument. K.P. refused to press charges and was reported to have casually dismissed the incident. The child expressed her fear about K.B. to B.P., and K.B.’s abuse of her pet dog;

(d) while K.P. was not prepared to discuss what caused the argument with K.B., he reported that the argument was precipitated by K.P.’s drug use (a term prohibited by Order when caring for the child, or when the child was in the home);

(e) K.P. admitted to using marijuana in her residence, but minimized its use;

(f) on June 18, 2015, Aston J. made an order directing K.P. that K.B. not be allowed into her residence or to have any contact with the child, and ordered legal representation for the child. The mother was present at court when this Order was made;

(g) on June 25, 2015, the Society worker was present at the mother’s residence when K.B. entered it. He soon left;

(h) K.P. declined to permit the Society worker from entering her residence on July 7, an unannounced attendance. On July 9, the Society learned from police that K.B.’s mother had been residing with K.P., and K.P. had “kicked her out”. K.B. needed assistance in retrieving his mother’s personal belongings from K.P.

[6] K.P.’s evidence emphasized her interactions with her daughter and the many activities in which the child was engaged, and enjoyed. Left out was the considerable assistance from, and participation by, the maternal grandparents. Although described by K.P. as being a “helicopter” grandmother, I find that the efforts made by B.P. and, to a lesser extent, her husband, were well intentioned, stemmed from a longstanding history of dealing with the challenges K.P. presented, and were focussed on the child. B.P. presents as a logical, stable alternative to the mother’s care and control of the child.

[7] As already noted, the Society takes, in essence, no position as between K.P. and B.P. apart from ensuring that the child is safe. B.P. can provide that environment. Whether K.P. is able to do so has been, and remains, problematic. In recognition, perhaps, of the seriousness of the situation, K.P. in her affidavit sworn December 2, 2015 outlined a catalogue of terms and conditions to any supervision order were the court to permit the child to remain under her care and control (paragraphs 37 – 51). These represent, in my view, unambiguous commitments K.P. is making to her daughter, and to the court.

[8] Counsel for K.P. referred the court to Children's Aid Society of Algoma v. B.(A.), [2012] O.J. No. 2625, 2012 ONCJ 351, 20 R.F.L. (7th) 217, 216 A.C.W.S. (3d) 117 (Ont. C.J.) for the proposition that the onus was on B.P. to show, based on admissible evidence and on the balance of probabilities, that material changes in circumstances had taken place such that any change in the child’s care and custody was in the child’s best interest. There is evidence in this case demonstrating not only that the Society’s concerns about K.P. and her care and control of the child are substantiated but also that K.P., while making some changes, has not fundamentally made the kind of changes to her parenting of the child that would be in her child’s best interests.

[9] In her affidavit sworn December 3, 2015, in support of her motion for care and custody of A.P., B.P. reaffirmed the devotion of her husband and herself to K.P. and that they “constantly tried to support her emotionally and protect her from harm” when younger, support which K.P. inconsistently criticized as being either overbearing or non-existent. The Society has no concerns about B.P. and acknowledges that the relationship between the child and her maternal grandparents is in A.P.’s best interests and should continue. I agree. But the Society has not taken the position that the child’s care be changed to B.P.

[10] K.P. shall be given what may be described as a “last opportunity” to demonstrate to the court that A.P.’s wellbeing is a priority, that she will fulfill the commitments to her daughter that she has sworn to the court she will undertake. At the same time, there is no reason to restrict the child’s contact with B.P. to once weekly nor, in my view, should that contact be restricted, as K.P. proposes, to alternating weekend access. The child loves her grandparents and they her. There is a strong stable relationship that benefits the child and does not prejudice the child’s relationship with her mother.

[11] Accordingly, Order to go as follows:

(1) B.P.’s motion is adjourned to the Settlement Conference date scheduled for February 25, 2016 to be spoken to, without prejudice to her renewing her request for an Order placing A.P. in her care, subject to Society supervision;

(2) paragraph 1(b) of the Order of Aston J. dated June 18, 2015 shall be changed to provide that A.P. shall be entitled, at least once weekly, to spend overnight with her maternal grandparents from after school and on alternate weekends from Friday after school to Sunday at 8:00 p.m. B.P. and D.P. shall be responsible for picking up the child and delivering her to school or returning her to her mother’s address, as the case may be;

(3) the order of Gorman J. dated June 22, 2015, placing the child with her mother, shall be further modified to include such of the provisions of paragraphs 37 – 51 of K.P.’s affidavit sworn December 3, 2015 that are not already set out in subparagraphs 1(i) – (xvi) of that Order;

(4) the motions of the Society and K.P. are dismissed.

[12] As the order of Aston J. dated June 18, 2015 remains in full force and effect, no further order is needed at that time with respect to paragraph 1(c) dealing with K.B.;

[13] I wish to commend counsel and B.P. for their assistance.

[14] In the course of argument, B.P. provided to the court an affidavit sworn December 3, 2015. No party objected to its review. The court administration is directed to have that affidavit added to the Continuing Record.

“Justice David A. Jarvis”

Justice David A. Jarvis

Date: December 11, 2015