ONTARIO

SUPERIOR COURT OF JUSTICE

BROCKVILLE COURT FILE NO.: 14-0673
DATE: 20151221

BETWEEN:

Family and Children’s Services of Lanark, Leeds and Grenville

Nicola Edmundson, for the Applicant

Applicant

• and -

K.K. and J.K.

Norman Lee, for the Respondent K.K.
J.K self-represented

Respondents

HEARD: November 16-20, 2015

TROUSDALE J.

REASONS FOR JUDGMENT

[1] This matter is in relation to two children, namely C.C.K. and E.T.K. (herein “the children”) who are twin boys born on […], 2005 and who are now 10 years old.

[2] On October 19, 2015, Justice Johnston found on a summary judgment motion brought by Family and Children’s Services of Lanark, Leeds and Grenville (herein “the Society”) that there was no genuine issue requiring a trial as to whether the children were in need of protection. He found that the children were in need of protection at the time they were apprehended and that they continue to be in need of protection pursuant to Section 37(2)(b)(i) and (ii), and Section 37(2)(f) and (f.1) of the Child and Family Services Act, R.S.O. 1990, c. C.11, as am. (“the Act”).

[3] Justice Johnston found that there should be a trial of the issue as to what disposition is in the best interests of the children. Justice Johnston’s concern related to the evidence that the children had expressed to their psychologist that they wanted to return to live with their mother.

[4] The mother’s position and plan is that the children should be returned to her care in her home where she resides with a boarder, T.T., subject to an order of supervision by the Society. She wishes T.T. to play the same role in her home that he did prior to the apprehension of the children. She argues that the children wish to be returned to her care and to return to the school at which they previously attended when they were in her care. She submits that until the apprehension of the children by the Society, she has been the primary caregiver for the children (except for one year when they resided with the maternal grandmother) and that she has provided for all their needs.

[5] The father’s position and plan is that the children should be placed in his sole custody pursuant to a custody order made under Section 57.1 of the Act, subject to access by the mother to the children every second weekend to take place at the home of the maternal grandmother, and with only persons approved by the father to be present for such access. The father submits that the children have been residing with him full time since July, 2014 and that they are doing very well in his care. He submits that although the mother loves the children, it is not in the best interests of the children to be returned to the full-time care of the mother due to the protection concerns.

[6] The Society supports the father’s plan and seeks that the children be placed in the father’s custody pursuant to Section 57.1 of the Act, subject to access by the mother. The Society submits that a Section 57.1 custody order to the father is in the best interests of the children. Among a number of concerns regarding the mother’s care of the children, the Society notes that the children were subject to harsh treatment when they were in the care of the mother and her boarder, T.T., as well as the condition of her home was detrimental to the well-being of the children. The Society also alleges that the mother’s physical problems and mental health issues detrimentally affected her parenting. The Society’s position is that a Section 57.1 custody order to the father is the least disruptive course of action for the children.

BACKGROUND

[7] The mother of the two children is K.K. (herein “the mother”). The father of the children is J.K. (herein “the father”). They were married in March, 2004 and resided in Ottawa, Ontario. The twin children were born on […], 2005.

[8] When the mother was about 6 months pregnant with the children, she was diagnosed as being bipolar. She obtained treatment and continues to be treated for this. The mother is in receipt of a Canada Pension Plan Disability pension as a result of this diagnosis.

[9] Shortly after the birth of the children, the mother and the father and the children moved into the home of the father’s parents for approximately three months as the mother had postpartum depression.

[10] They then moved back into their matrimonial home with the children. The paternal grandmother and the maternal grandmother each helped out enormously in the care of the children with each coming in for three days to a full week in alternate weeks.

[11] In 2006, the mother was rear-ended in a car accident while taking the children to a medical appointment. She suffered some injuries in that accident.

[12] The father’s evidence is that the maternal grandfather moved into the matrimonial home in 2007. The mother’s evidence is that he moved into the home after the parties separated the following year.

[13] The mother and the father separated in June, 2008. The father moved out of the home. He moved into the home of his parents in Ottawa to assist his parents as his mother had been diagnosed with cancer. She subsequently passed away.

[14] The mother and the maternal grandfather and the children resided in the matrimonial home in Ottawa after separation. The father had access to the children.

[15] In late 2008, the mother was involved as a passenger in a car accident in the car being driven by her father. She had to be extricated from the vehicle. The mother had serious back injuries and suffered from continuing back pain. She was physically unable to care for the children, and Ottawa Children’s Aid Society become involved at that time. As a result, in 2009 the children went to reside for a year with the maternal grandmother who resides in a small town in eastern Ontario about one hour from Ottawa. The mother and the father each exercised access to the children during that year.

[16] In 2010 the maternal grandmother purchased a home in another small town in eastern Ontario for the use of the mother and the children. The maternal grandmother rents this home to the mother. The children came back into the mother’s care and they moved into that home in 2010.

[17] In late 2010 or early 2011, T.T. who was the mother’s boyfriend at the time, moved into the mother’s home with the children.

[18] The mother was having some difficulty with the children’s behaviour and she obtained psychological counselling for the children in 2010. That counselling continued until July 2015.

[19] The children have been diagnosed with ADHD and both children take medication. In addition, the child C.C.K. has been diagnosed with depression.

[20] The Society again became involved with the mother and the children at some point in or about 2010 and continued their involvement from that time forward.

[21] At some point in or about 2012 or 2013, the relationship between the mother and T.T. ceased to be a romantic relationship. They continued to be close friends. From that time forward to the time of trial, T.T. continued to live in the mother’s home as a boarder paying rent.

[22] Pursuant to their separation agreement, the mother and the father had joint custody of the children with the father to have access with the children every second weekend. After the return of the children to the mother’s care in 2010, at some point she reduced the father’s access to the children to access in the living room of her home for two hours on the last Sunday of each month. The mother would not allow the father to take the children outside or anywhere else.

[23] In 2013, the father commenced an application pursuant to the Children’s Law Reform Act to increase his access to the children. On consent of both parties, the Office of the Children’s Lawyer was requested to do an investigation and report pursuant to Section 112 of the Courts of Justice Act, R.S.O. 1990, c. C.43.

[24] An investigation was carried out and a report of the Office of the Children’s Lawyer was released on December 11, 2013. There was a disclosure meeting at that time. The mother and the father agreed to a temporary order that the father would have access to the children every second weekend with the matter to be reviewed after three months.

[25] The same assessor made a further report on May 23, 2014. She recommended that the mother and the father have shared custody of the children with primary residency with the mother. She further recommended that the father have access to the children every weekend from Friday after school to Monday morning when the father would transport the children to school. She also recommended that holidays be shared and that there be a week on / week off alternating schedule during the summer holidays.

[26] After the disclosure meeting, the parties agreed that the father would have the children with him every weekend from Friday after school to Monday at school commencing June, 2014 and that the children would be week about with each parent for the summer. However, no court order was ever actually made in that regard.

[27] On May 28, 2014 the mother and T.T. refused to sign the contract of expectations put forward by the Society. Previous contracts had been signed and had expired. Subsequently the mother and T.T. advised the Society that the Society workers would not be allowed into the home and that the Society workers were not permitted to interview the children.

[28] In July 2014, the Society apprehended the children while they were at their father’s home in Ottawa for the week, in order to avoid the trauma of an apprehension of the children at the mother’s home.

[29] On July 9, 2014, a temporary without prejudice order was made that the children be placed in the care of their father subject to the supervision of the Society pending return of the motion for argument on the merits.

[30] After several adjournments, the motion was heard on the merits on August 26, 2014. On September 12, 2014, Justice Quigley ordered that the children be placed with the father subject to supervision of the Society and subject to the conditions set out in the order. The mother has access to the children but is not permitted to bring the children to the family home or to the area of the town in which she lives without prior approval of the Society. The visits with the mother are not to include anyone else without the prior approval of the Society.

[31] The children have resided with the father in Ottawa since July, 2014. The father and the children reside at the home of the paternal grandfather. The children have attended a public school in Ottawa since September, 2014 and are currently in Grade 5 in the same class.

[32] The mother has had access to the children which was initially exercised at the home of her brother. Access was then exercised at the home of T.T.’s mother for 4 to 6 weeks. For some period of time now, the mother has exercised access at the home of the maternal grandmother.

[33] T.T. is not approved by the Society to have access or contact with the children. T.T. has not seen the children since they were apprehended in July, 2014.

[34] As of December 1, 2015, the father plans to move with the children out of the paternal grandfather’s home in Ottawa to a 5 bedroom rental property which he will share with his girlfriend, J.D. and her 16 year old son. The children would continue on at their same school in Ottawa for the 2015/2016 school year.

[35] The father is the service department supervisor and technician for a fire and security firm in Ottawa. He has been employed there since 2000. His hours of work are 8:00 a.m. to 4:30 p.m. Monday to Friday. Occasionally he might have to do an inspection at 6:00 p.m. The father’s girlfriend, J.D. works at the same firm and works Monday to Friday from 8:00 a.m. to 4:30 p.m.

[36] The mother intends to continue residing with T.T. as her room-mate in the same home she has resided in since 2010. If the children were returned to her care, they would attend the small public school at which they attended […] Kindergarten through Grade 3 in the small town in which the mother resides.

(Full judgment continues exactly as in the original source.)

Justice A.C. Trousdale
Released: December 21, 2015