Court File and Parties

COURT FILE NO.: C253/16-01 DATE: 2016/07/25 SUPERIOR COURT OF JUSTICE – ONTARIO FAMILY COURT

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: S.D.1, N.C. and S.D.2, respondents

BEFORE: MITROW J.

COUNSEL: Sandra Welch for the Society Leonard G. Reich for S.D.1 Sharon Hassan for N.C. Bayly Guslits for S.D.2

HEARD: July 8, 2016

Endorsement

[1] This matter came before me on July 8, 2016 as a special appointment for a temporary care and custody hearing.

[2] As a result on an ADR process, it appeared that this matter was going to resolve on a final basis; however that did not occur.

[3] Instead, all parties except S.D.2 signed a consent (Exhibit #1) for a temporary supervision order placing the child, E., age 2, with the father, N.C. (“father”), and the paternal grandmother, P.C. (“paternal grandmother”).

[4] On July 8, 2016, I reserved my decision on the request for a “consent order”, and indicated that it was necessary to review all evidence in the file, given the troubling medical evidence, and concerns raised by the child’s treating physicians at University Hospital as to the care of the child by S.D.2 (“maternal grandmother”). It is noted that S.D.2 is not the biological maternal grandmother, but rather she had assumed a parenting role in relation to the mother, S.D.1 (“mother”), who is sometimes known as S.R.

[5] The child was born with gastroschisis; this necessitated surgery and a lengthy initial hospital stay following her birth. The defacto primary care of the child was assumed by the maternal grandmother who dedicated many hours at the hospital being with the child, and learning about the proper procedure for intravenous nutrition and enteral (stomach) feeds through a gastrostomy (G-tube). The child was discharged from hospital into the care of the maternal grandmother; although the mother was living with the maternal grandmother, it is clear from the record that the maternal grandmother continued in her role as primary caregiver for the child.

[6] However, by order dated March 3, 2016, the child was placed on an “interim interim” basis, in the temporary care and custody of the Society.

[7] The basis for the Society’s request for temporary care and custody included a medical report (see report of Dr. Peebles dated February 22, 2016) that included the following concerns: multiple, unnecessary hospital admissions based on caregiver reports of excessive diarrhea and vomiting, almost all of which were not substantiated on admission; inaccurate caregiver reports as to the child’s symptoms resulting in multiple, unnecessary and invasive medical testing; poor weight gain; and inaccurate caregiver reports causing multiple delays in advancing the child’s feeding regime.

[8] Less than a month after the child came into care, a report from Dr. Peebles (March 30, 2016) noted very substantial gains and progress made by the child regarding her feeding regime, including progress with oral feeding. A substantial positive change was noted in the child’s demeanor – she was described as a “different child” – now presenting as calm and content during clinic visits, as compared to the child crying during previous clinic visits, and resisting attempts to examine her. This report noted that the child has made “incredible gains” in her oral and enteral feeds since coming into care, and that the “dramatic medical response” to the change in caregiver, coupled with previous identified concerns, “is characteristic of that seen in children affected by medical child abuse”.

[9] The most recent medical report (dated June 22, 2016) signed by Dr. Atkison and Dr. Peebles, summarized the “incredible progress” made by the child, in terms of her feeding, since coming into care; this report characterized as “false” the reports received from the maternal grandmother as to the child’s medical symptoms; and this report indicated that the history is “indicative of medical child abuse”. The authors of this report were concerned that unsupervised access by the maternal grandmother may lead to further unnecessary procedures and hospitalizations.

[10] Although the maternal grandmother did not sign the consent, she was not opposing the temporary order sought. Accordingly, it is important to note that the submissions on the temporary care and custody hearing were limited to submissions in relation to the consent and unopposed order sought.

[11] It is noted that the maternal grandmother denies any suggestion of medical child abuse.

[12] The father lives with his parents; he works fulltime during the day, on weekdays; also living in the home are the father’s brother (age 17) and the father’s partner J.W., age 20. Both paternal grandparents filed clear police records checks (Exhibits #2 and #3). A kinship assessment report for the paternal grandparents was filed, although it is incomplete in relation to the father’s and J.W.’s police records checks as same have been requested but not received. The father, the maternal grandmother, the paternal grandparents and J.W. each have filed a Form 35.1 affidavit.

[13] It is clear from the record that the paternal grandmother is a substantial player in the father’s plan of care; she recently lost her fulltime employment and is available to be at home while the father works. J.W. also may be available to assist but she is returning to Fanshawe College in the fall, and is working fulltime during the summer.

[14] On all the evidence, and pursuant to s. 51(2)(c) of the Child and Family Services Act, I am satisfied that the child should be placed with the father and the paternal grandmother, on a temporary basis, as asked, and subject to Society supervision. The order below also includes a condition requiring the father to continue living at his parents’ residence. It is noted that the child has been spending substantial time in the paternal grandparents’ home.

[15] The requested order stipulates that the mother should have reasonable access to the child, a minimum of 4 times per week. I agree with that request.

[16] It is the mother’s evidence that there has been some conflict in her relationship with the maternal grandmother; that the mother is looking to obtain her own residence; and that she is being assisted by a support person to find suitable affordable housing and to apply for Ontario Works.

[17] The timing of the order that I am making needs to be put into context in relation to the mother; it is apparent that she is available fulltime to care for the child, but that she has yet to obtain housing and Ontario Works. Had the mother achieved those results at the time of the hearing, her plan of care would have sought to place the child with her, as she is available fulltime in contrast to the father’s plan where he has to rely on others to care for the child.

[18] When dealing with the mother’s access, it is important for the access to be quite generous, especially during times when the father is not available to care for the child.

[19] In order to present a viable plan of care for a final order, the mother will need to demonstrate that she is able to meet the child’s needs, including the child’s special medical needs. The father, too, will have the same onus, as will the maternal grandmother if she pursues her request to place the child with her.

[20] The comments above in relation to the mother are being made to emphasize that this is a temporary order, and that there should be no assumption made by the father that the final order will be similar to the temporary order.

[21] Although the maternal grandmother has been a major part of the child’s life prior to apprehension, I do take into account the concerns expressed in the various medical reports; I find the reports to be “credible and trustworthy” evidence within the meaning of s. 51(7) of the Child and Family Services Act.

[22] The order sought requests reasonable access to the maternal grandmother with the Society to have discretion whether the access is to be supervised.

[23] At this stage of the proceeding, and based on the evidentiary record, I find that the maternal grandmother’s access pursuant to s. 51(5) of the Child and Family Services Act, should be supervised, with no discretion to dispense with supervision; however the order below allows the Society to approve an adult person to supervise the access as its agent.

Order

[24] The child is placed in the temporary care and custody of the father and the paternal grandmother, pending further order of the court, subject to supervision by the Society and on the following terms and conditions:

(a) as asked in Exhibit #1, conditions (i) to (iii) inclusive and (v) to (ix) inclusive; (b) the father shall continue to reside with his parents, P.C. and T.C.; (c) the father and paternal grandmother shall ensure that original vulnerable sector police records checks are filed with court no later than September 15, 2016, for the father, the father’s brother, J.C., and the father’s partner, J.W.; and the police records check for the father’s brother, J.C., shall be dated after his eighteenth birthday.

[25] Access to the mother as requested in para. 2 of Exhibit #1.

[26] The maternal grandmother shall have reasonable access to the child, and the access shall be supervised by the Society. The Society shall have discretion to appoint an adult person satisfactory to the Society, who is not a Society employee, to supervise the access visits as the Society’s agent.

“Justice V. Mitrow” Justice V. Mitrow Date: July 25, 2016