Court File and Parties

CITATION: Catholic Children’s Aid Society of Hamilton v. E.L. and N.R., 2016 ONSC 1789

COURT FILE NO.: C-233-15

DATE: 2016-03-11

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Catholic Children’s Aid Society of Hamilton, Applicant

AND:

E.L. and N.R, Respondents

BEFORE: The Honourable Mr. Justice D.J. Gordon

COUNSEL: Monica Scholz, Counsel for the Moving Non-Parties, M.E. and A.N. Imran Kamal, Counsel for the Applicant Susan Sullivan, Counsel for the Respondent E.L. N.R., Respondent, Appearing in Person

HEARD: March 4, 2016

ENDORSEMENT

[1] This is a child protection proceeding involving a five year old child, E.L-R. (“the child”), commenced by the Catholic Children’s Aid Society of Hamilton (“the Society”) by application issued December 21, 2015. In their motion, dated February 1, 2016 the non-parties, M.E. and A.N. (“maternal grandmother” and “step-grandfather”) seek an order for access with the child. The motion is opposed by E.L. (“mother”) and N.R. (“father”). The Society now takes no position.

Background

[2] Mother is 30 years of age. Father is 46. They are the biological parents of the child. Mother does not have other children. Father has several children from prior relationships.

[3] The maternal grandmother and step-grandfather have been in a common law relationship since 2008. The maternal grandmother and her former husband separated in 1993 and subsequently divorced. They have two children, the mother in this case and a son, age 28. The step-grandfather, and his former spouse, have several adult children.

[4] Mother and father have lived separate and apart from time to time but were cohabiting at the time of the principal events leading to this proceeding. The child has always resided with her mother.

[5] The relationship between mother and maternal grandmother has been problematic. Nevertheless, the maternal grandmother and step-grandfather were providing child care to assist mother when she was working.

[6] On October 17, 2015, the child disclosed to the maternal grandmother that her father had been touching her in a sexual manner. The maternal grandmother informed mother of this information on October 22, 2015. Mother spoke to the child and, on October 23, 2015, called the Society. A police investigation followed. Mother and child were interviewed on several occasions. Father separately attended the police station for questioning. There has been no disclosure of the police or Society investigation regarding the child’s complaint.

[7] Father was arrested on December 8, 2015. He was charged with sexual assault and other offences pertaining to the child. Father was released on a recognizance of bail on December 10, 2015. The terms of his release included no contact with the child, mother or maternal grandmother.

[8] Father has not had contact with the child since October 23, 2015, as a result of steps taken by mother. He has complied with the terms of his recognizance.

[9] Mother discontinued access between the child and maternal grandmother and step-grandfather after father had been charged and released on bail. Mother is of the view the maternal grandmother improperly influenced the child with respect to her disclosure of father’s conduct.

Society Involvement

(i) Initial Investigation

[10] Mother contacted the Society on October 23, 2015 to report the child’s disclosure. She also provided information regarding family members, particularly father’s history and their separation. Mother indicated she was heading to the hospital, as directed by her family physician, to have the child medically examined. The worker advised mother to contact Dr. Nolan, a paediatrician with the Child Advocacy Assessment Program, for that purpose.

[11] Anabela Pereira, a child protection worker with the Society, attended at the hospital and met the child, mother, maternal grandmother and step-grandfather. The child was examined by Dr. Nolan. No concerns were identified. Ms. Pereira informed mother there would be a joint investigation of the child’s disclosure by the Society and Hamilton Police Service. The worker also instructed mother not to allow father contact with the child.

[12] The child left the hospital with the maternal grandmother and step-grandfather. She remained in their care until November 2, 2015 when she was returned to her mother.

[13] Detective John Pauls interviewed mother and child on October 27, 2015 and again on December 3, 2015. The officer interviewed father on October 29, 2015. There has been no disclosure regarding the police or Society investigation. Ms. Pereira reports Detective Pauls identifying the child’s disclosure as credible and honest. It is unknown what further investigation was conducted by the police other than these interviews.

[14] Father was arrested on December 8, 2015. He was released on bail on December 10, 2015 with a no contact term as previously mentioned.

[15] Ms. Pereira met with mother on several occasions in the early stages of the investigation. She reported mother as being “ambivalent” about the allegations regarding father’s conduct. However, Ms. Pereira also referred to a number of comments by mother as to protecting her child even though she did not believe the allegations of sexual abuse.

[16] Mother questioned whether the child was making up the allegations as a result of watching adult theme movies or shows. She became concerned the maternal grandmother may have coached or influenced the child. Mother began making negative comments about the maternal grandmother.

[17] The child returned to mother on November 2, 2015. Mother advised Ms. Pereira that father was not having contact with the child although she was having conversations with him and that he was sleeping at her home when the child was staying with the maternal grandmother and step-grandfather. Mother continued to express her concern to Ms. Pereira about the maternal grandmother manipulating the child.

[18] Ms. Pereira contacted mother on December 8, 2015 to advise as to father’s arrest and likely bail conditions. She reported mother as being upset and that she did not believe the allegations from her child. Mother also disclosed having just found out she was four weeks pregnant with father’s baby. Mother continued to complain to Ms. Pereira about the maternal grandmother, including historical comment on her own upbringing. Mother referred to the maternal grandmother as manipulative and “evil”. Nevertheless, mother advised Ms. Pereira that she would continue to send the child to be with the maternal grandmother so that she could be with father. Mother also reported the child as having lied about father’s conduct.

[19] Ms. Pereira spoke to mother on December 14, 2015. Mother continued to comment on the maternal grandmother’s role in the child’s complaint. Mother spoke of the child being bribed by the maternal grandmother with a trip to Disneyland. Ms. Pereira requested permission from mother to speak to her psychotherapist, Dr. Shaw, and her family doctor. Ms. Pereira was concerned with the stress mother was experiencing and how it might impact on her mental health diagnosis reported by mother as being bi-polar depression. Mother declined to provide her consent but advised she would work on obtaining a letter saying there were no mental health concerns.

[20] The maternal grandmother and step-grandfather attended the Society’s office on December 9, 2015. They reported mother was denying them access to the child. The maternal grandmother disclosed a conflictual relationship with mother since childhood, that mother would blame her and be verbally abusive when things were not going her way and that mother would withhold access to the child when she was upset with them. The maternal grandmother and step-grandfather stressed their desire to continue involvement with the child.

[21] On December 16, 2015 Ms. Pereira attempted to interview the child at her school. The teacher advised Ms. Pereira that mother had previously informed school officials that she was not consenting to such an interview. Mother withheld the child from school when informed of Ms. Pereira’s request to see the child.

[22] Ms. Pereira contacted mother on December 17, 2015 to explain the purpose of interviewing the child. Arrangements were made for such to occur the following day. Ms. Pereira attended at mother’s residence on December 18, 2015. Mother refused to allow her to speak to the child as she wanted to first obtain legal advice as to her rights.

[23] Ms. Pereira reports the Society’s concerns as follows:

(a) A joint investigation with Hamilton Police Services occurred following the child alleging sexual abuse by father. As a result, father was charged with sexual assault, sexual interference with a minor and invitation to sexual touching.

(b) Mother has been ambivalent about whether or not she believes the child’s disclosure.

(c) Mother is currently pregnant with father’s child and has been ambivalent about her relationship with him.

(d) Mother has been diagnosed with Bi-Polar Depression. To date, I am still waiting for mother to consent to allowing me to follow up with her psychologist regarding her mental health and recommendations that have been made.

(e) Mother initially indicated the maternal grandparents were positive supports for the child. Since learning that father is not to have any contact, direct or indirect, with her due to his Recognizance of Bail, mother has refused to allow them any access to the child.

(f) Mother has refused to allow the Society private interview with the child.

(g) Mother believes that the child is lying about the allegations she has made regarding father sexually abusing her. There are concerns that her lack of belief and her ambivalence regarding her relationship with father will put the child at risk of further harm by father.

(h) Mother continues to engage in conversation with the child about the information she has provided regarding the sexual abuse.

(ii) Child Protection Application

[24] The Society commenced this proceeding by application issued December 21, 2015, seeking a finding the child is in need of protection because:

(a) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by that person’s failure to care for, provide for, supervise or protect the child adequately (s.37(2)(b)(i));

(b) there is a risk that the child is likely to be sexually molested or sexually exploited, by the person having charge of the child or by another person where the person having charge knows or should know of the possibility of sexual molestation or sexual exploitation and fails to protect the child (s.37(2(d));

(c) there is a risk that the child is likely to suffer emotional harm, demonstrated by serious anxiety, depression, withdrawal, self-destructive or aggressive behaviour, or delayed development resulting from the actions, failure to act or pattern of neglect on the part of the child’s parent or the person having charge of the child (s.37(2)(g)).

[25] The Society seeks an order placing the child with the mother, subject to the supervision of the Society for a period of six months on stated terms and conditions. Of some interest, despite taking no position on this motion, one of the Society’s proposed terms was that the child continue to have regular access to the maternal grandmother and step-grandfather.

(iii) First Appearance

[26] The Society’s application was first returnable on December 23, 2015. Ms. Sullivan, counsel for mother, requested an adjournment with no order being granted. Mr. Kamal, counsel for the Society, requested an order placing the child with mother with supervision on terms. Mr. Kaffko, duty counsel, presented father’s desire for supervised access with the child.

[27] Brown J. was not satisfied on the Society’s evidence that the child could not be adequately protected by mother without terms of supervision. She was critical of the Society’s description of mother being “ambivalent” and, as well, their complaint as to mother wanting legal advice before permitting the worker to interview the child. Brown J. was not satisfied with the Society’s concern mother would allow father to have contact with the child.

[28] Nevertheless, out of caution, given the nature of the allegations against father and related matters, Brown J. granted a temporary temporary without prejudice order as follows:

(a) The Mother shall allow the child to be interviewed by the Society in private & the interview(s) will be tape recorded by the Society. If the parties agree, the recording will be provided to them. If not, this may be the subject of a Motion.

(b) The Mother shall not allow the Father to have any direct or indirect contact with the child.

(c) The Father shall not have any direct or indirect contact with the child.

(iv) Society Investigation Since Order

[29] Despite the provisions in the aforementioned order, as of the date of the hearing of this motion, the Society has neglected to interview the child. In the absence of evidence from the Society, it appears they have done nothing to investigate their “concerns” in almost three months. This delay is troublesome given the nature of the alleged conduct of father and the position taken by the Society on the first court appearance.

[30] At that appearance, Mr. Kamal took an aggressive position regarding mother’s refusal to allow the child to be interviewed by the Society worker until she obtained legal advice. Although that submission was rejected by Brown J., it is indicative of the Society’s then concern. There has been no suggestion the Society has changed their position. Yet they have not investigated.

[31] Other than the undisclosed police investigation, it appears the only involvement of Society’s workers has been conversations with mother and maternal grandmother months ago. In this regard, it must be recognized that the criminal prosecution of sexual assault charges involving a child complainant is difficult, particularly in the absence of medical evidence. The onus of proof differs in a criminal case. The criminal trial will not likely occur for some time. In these circumstances, it is incumbent on the Society to investigate the complaint and their “concerns” and tender admissible evidence in support of its position. The statutory timelines require the Society to proceed without delay.

(v) Society’s Position on Motion

[32] At the commencement of the hearing, Mr. Kamal reported the Society took no position, that it neither supported nor opposed the access request. Before excusing him from the proceeding, I asked Mr. Kamal to explain why the Society refused to take a position given their statutory mandate and their purported concern for the child. Mr. Kamal simply reported he had no instructions.

[33] The Society’s lack of position is untenable for a number of reasons:

(a) in their application, the Society identified the risk to the child, including emotional harm;

(b) the Society has been served with all affidavits on this motion and, presumably, they are now aware of conflicting evidence and serious allegations that focus on emotional harm to the child;

(c) the Society has not pursued its investigation since December 2015, has not interviewed the child and has not made inquiry regarding the evidence tendered on this motion;

(d) the Society has a duty to investigate allegations and protect children pursuant to section 15, Child and Family Services Act, as repeatedly addressed in the caselaw; and

(e) this is a child protection proceeding and the Society, being the applicant, is required to be involved in all aspects of the case.

[34] As previously mentioned, one of the Society’s proposed terms of supervision was for the child to have regular access with the maternal grandmother and step-grandfather. On February 5, 2016, the first return date of this motion, counsel for the Society informed the Court they had no objection to an access order. Now the Society takes no position, but decline to explain to this family or the court why their position keeps changing.

[35] In my view, the Society has abdicated its statutory responsibility. In the absence of evidence from or the involvement of the Society, and without the appointment of the Children’s Lawyer, I am left to determine an important issue involving the emotional well-being of a young child. Who speaks for the child?

[36] A settlement conference is scheduled for March 21, 2016. It is expected the Society will have completed their investigation before that date, have provided disclosure and to fully participate in a discussion of all issues at the conference.

Dr. Shaw

[37] Before proceeding further, I propose to address the affidavit evidence of Dr. Shaw.

[38] Dr. Shaw is a family physician with a designation of “G.P. Psychotherapy”. She has provided services to mother and to the maternal grandmother and step-grandfather. Her evidence is supportive of mother and critical of the maternal grandmother. This raises a serious ethical issue, as well as with credibility, given Dr. Shaw’s conflict of interest. Indeed, a month prior to swearing her affidavit, Dr. Shaw advised the maternal grandmother as to contacting the College of Physicians and Surgeons because of this conflict.

[39] Dr. Shaw refers to a diagnosis of mother’s condition by a Dr. Webb. No information is provided as to who Dr. Webb is or whether he/she is qualified to provide an opinion. No medical reports are provided. Dr. Shaw is not qualified to provide a medical diagnosis as described. This evidence is not admissible.

[40] Dr. Shaw may only provide evidence, if at all, regarding her treatment of mother. In result, her evidence may only be considered for a limited purpose on this motion, namely that she has no concerns regarding mother’s ability to parent.

[41] Mother, or the Society, is expected to obtain a report from Dr. Webb.

Mother and Maternal Grandmother Relationship

[42] There is considerable and conflicting evidence from the mother and maternal grandmother regarding their present and historical relationship. Given the evidence that is not in dispute, I do not propose to review the conflict in detail. Indeed, at this early stage, it would be impossible to do so. The evidence needs to be tested by questioning.

[43] There is no dispute, the relationship between mother and maternal grandmother has been a difficult one for many years. Yet, there are many occasions when the relationship appears normal or, at least, without animosity.

[44] The maternal grandmother and step-grandfather have provided child care to allow mother to attend college and to work. The step-grandfather was asked by mother to be the child’s godfather at her baptism. Family members have spent time together at various events.

[45] The relationship has been disrupted on occasion, including the time between August 2014 and February 2015 when the maternal grandmother and step-grandfather did not see the child. Contact resumed in February 2015 with the child being with the maternal grandmother and step-grandfather every Wednesday overnight and alternate weekends.

[46] The child’s initial disclosure was to the maternal grandmother. She informed mother. The maternal grandmother and step-grandfather attended the hospital with mother and child. In that time of family crisis, the maternal grandmother and step-grandfather provided continuous childcare until November 2, 2015. This allowed mother to address issues with father and the Society.

[47] The relationship was disrupted following father’s arrest and release on bail. Mother believes the maternal grandmother coached or manipulated the child. The maternal grandmother denies such allegations.

[48] At this point, it is unclear what the relationship will be in the future, particularly given the contents of the many affidavits. Hopefully, the relationship can be repaired for the sake of the child.

Child and Maternal Grandmother and Step-Grandfather Relationship

[49] Despite the conflicting evidence, and the issues between mother and maternal grandmother, it is clear the child has a close and loving relationship with the maternal grandmother and step-grandfather. The child has spent considerable time with them in her young life at family events, holidays and regular periods when mother was working. The child has also enjoyed time with other extended family members, as expected.

[50] Grandparents do not provide babysitting services. They do provide a relationship that is important in the child’s upbringing.

Positions on Motion

[51] The respective positions can be briefly stated in the following manner.

(i) Maternal Grandmother and Step-Grandfather

[52] The maternal grandmother and step-grandfather seek a resumption of access with the child as existed prior to father’s arrest and release on bail:

(a) each Wednesday from after school until Thursday morning at school; and

(b) alternate weekends from Saturday at 8:00 a.m. to Sunday at 8:00 p.m.

[53] In the alternative, they ask for a one month period of access, supervised by Brayden Supervision Services:

(a) each Wednesday from after school until 7:30 p.m.; and

(b) each Saturday from 11:00 a.m. to 7:30 p.m.

They propose the access regime would be reviewed in court thereafter with the goal of normalized access.

(ii) Mother

[54] Mother is opposed to any access, at least at this time. She reports a counselling program at THRIVE Child and Youth Trauma Services is to commence shortly. The program will take two months. Mother does not want the child’s therapy impacted by unsupervised contact with the maternal grandmother. She will consider her position on completion of the therapy program.

[55] Alternatively, mother says the access request is too much. Her counsel was not in a position to address the proposal of supervision.

Principles of Law

[56] This is a child protection proceeding under the Child and Family Services Act. Section 58(1) and (2) permits grandparent access, as follows:

Access order

58. (1) The court may, in the child’s best interests,

(a) when making an order under this Part; or

(b) upon an application under subsection (2),

make, vary or terminate an order respecting a persons’ access to the child or the child’s access to a person, and may impose such terms and conditions on the order as the court considers appropriate.

Who may apply

(2) Where a child is in a society’s care and custody or supervision,

(a) the child;

(b) any other person, including, where the child is an Indian or a native person, a representative chosen by the child’s band or native community; or

(c) the society,

may apply to the court at any time for an order under subsection (1).

[57] The leading authority on grandparent access is Chapman v. Chapman, 2001 CanLII 24015 (ONCA). Although a Children’s Law Reform Act case, the principles enunciated by Abella J.A., as she then was, at paragraphs 19, 21 and 22 are instructive:

[19] A relationship with a grandparent can – and ideally should – enhance the emotional well-being of a child. Loving and nurturing relationships with members of the extended family can be important for children. When those positive relationships are imperiled arbitrarily, as can happen, for example, in the reorganization of a family following the separation of the parents, the court may intervene to protect the continuation of the benefit of the relationship (Shendroff v. Bruhand, a judgment of the Ontario Superior Court of Justice, released September 8, 1999 (unreported); Chabot v. Halladay, [1992] O.J. No. 2636 (Ont. Gen. Div.); Padbury v. Lee, [1994] O.J. No. 1075 (Ont. Gen. Div.); Peck v. Peck, [1996] O.J. No. 755 (Ont. Prov. Div.); McLellan v. Glidden (1996), 1996 CanLII 18917 (NB KB), 23 R.F.L. (4th) 106 (N.B.Q.B.); Young v. Young, supra).

[21] The trial judge acknowledged that the right of Larry and Monica Chapman “to independently raise their children should not be lightly interfered with”, yet he defers that right to the speculative hope that continued imposed access to the grandmother will one day produce a positive relationship for these children. This speculation, it seems to me, is an insufficient basis for overriding the parents’ right to protect the children’s interests and determine how their needs are best met. These are loving, devoted parents committed to their children’s welfare. In the absence of any evidence that the parents are behaving in a way which demonstrates an inability to act in accordance with the best interests of their children, their right to make decisions and judgments on their children’s behalf should be respected, including decisions about whom they see, how often, and under what circumstances they see them.

[22] Larry and Monica Chapman, not Esther Chapman, are responsible for the welfare of the children. They alone have this legal duty. Esther Chapman, as a grandparent, loves her grandchildren and, understandably, wants to maintain contact with them. Nonetheless, the right to decide the extent and nature of the contact is not hers, and neither she nor a court should be permitted to impose their perception of the children’s best interests in circumstances such as these where the parents are so demonstrably attentive to the needs of their children. The parents have, for the moment, decided that those needs do not include lengthy, frequent visits with their grandmother. Although the parents’ conflict with Esther Chapman is unfortunate, there is no evidence that this parental decision is currently detrimental to the children. It should therefore be respected by the court and the children’s best interests left in the exclusive care of the parents.

[58] In Giansante v. Dichiara, 2005 CanLII 26446 (ONSC), Nelson J. summarized these principles as posing the following questions:

(i) Does a positive grandparent-grandchild relationship already exist?

(ii) Has the parent’s decision imperilled the positive grandparent-grandchild relationship?

(iii) Has the parent acted arbitrarily?

Analysis

[59] Unlike in Chapman, the evidence on this motion clearly establishes a positive grandchild-grandparent relationship. There has been considerable and regular contact, including childcare, for most of the young child’s life.

[60] Although there is minimal evidence as to the impact on the child when access was discontinued in December 2015, particularly as no one speaks for the child, there can be no other conclusion that such imperilled the grandchild-grandparent relationship. Given the extent of the relationship previously, cessation of contact would have had a negative impact on the child. Close family members no longer were involved.

[61] The real issue on this motion is whether mother’s decision was arbitrarily, namely considerations other than the best interests of the child. Was her decision reasonable, having regard to a prior positive relationship? As set out in section 58, the overriding test is the best interests of the child.

[62] Mother’s decision to terminate access was based on her perception of the maternal grandmother’s involvement in the child’s disclosure. Her evidence and that of others who support her position, is incomplete, much being hearsay without establishing the test for admissibility, necessarily and reliability. Reference is made to the child’s admission, yet the police officer concluded the child was credible, the only independent commentator on the child’s comments.

[63] Mother acted properly and diligently once informed of the child’s disclosure. Despite her uncertainty, or even disbelief, of the child’s complaint, mother took all the correct steps in reporting, medical examination and prohibiting contact with father. Access continued.

[64] But mother’s position changed following father’s arrest. Despite the ongoing access regime, including the assistance from the maternal grandmother and step-grandfather at the critical time of disclosure and inquiry, mother terminated access. I conclude her decision was arbitrary. She attempts to justify her actions by raising historical complaints. Such is inconsistent with the access regime previously in place. Lost in the discussion is the impact on the child. Her father moved out. Her mother is stressed. And now she has lost her grandparents. This is contrary to the need for stability.

[65] Access must resume. It is in the child’s best interests. The prior regime involved child care while mother was at work. The amount of time exceeded what is reasonable for grandparents and more resembled that of a parent. Access should be limited to one day on alternate weekends. Hopefully, as this case proceeds, further access will be arranged.

[66] In result, the motion is granted and a temporary order shall issue on the following terms:

(a) the maternal grandmother and step-grandfather shall have access with the child on alternate Saturdays from 11:00 a.m. to 8:00 p.m., commencing March 19, 2016;

(b) access exchanges to take place at mother’s residence;

(c) the first four access visits shall be supervised by Brayden Supervision Services, at the expense of the maternal grandmother and step-grandfather, with the supervisor delivering a written access report to mother’s counsel within three days of each visit;

(d) thereafter, and subject to any further order, access shall be unsupervised; and

(e) neither the mother nor the maternal grandmother and step-grandfather shall discuss this case with the child or make negative comment about the other to the child or in the child’s presence.

[67] My preliminary view is that a cost award would not be appropriate. If either counsel feel otherwise, brief written submissions shall be exchanged and delivered to my chambers in Kitchener within 30 days.

D.J. Gordon J.

Date: March 11, 2016