Court File and Parties
CITATION: Children’s Aid Society of Ottawa v. S.F. 2016 ONSC 4914
COURT FILE NO.: FC-16-1016
DATE: 20160803
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
M. F-K., K. F-K., C. F-K., B. F-K., Z. F-K. and J. F-K.
BETWEEN:
THE CHILDREN’S AID SOCIETY OF OTTAWA Applicant
– and –
S.F. R.K. Respondents
COUNSEL:
Marguerite Lewis, for the Applicant
Dominique Smith, for the Respondent S.F. Michael Chun, for the Respondent, R.K.
HEARD: July 26, 2016
ENDORSEMENT
SHELSTON, J.
[1] This motion concerns the temporary care and custody of six children.
Background
[2] S.F. (“the mother”) and R.K.(“the father”) are the biological parents of the six children namely, M. F-K., born […], 2004; K. F-K., born […], 2005; C. F-K., born […], 2006; B. F-K., born […], 2007; Z. F-K., born […], 2007 and J. F-K., born […], 2009.
[3] The Children’s Aid Society of Ottawa (“the Society”) has been involved with this family since February 2007 when the mother called the police indicating that the father was experiencing a psychotic episode and was acting erratic and unpredictable. The father had previously been diagnosed with bipolar disorder and depression. The mother was in the home and feeling overwhelmed and it appeared the parents were struggling to meet the basic needs of the children. At that time, the Society did not apprehend the children but worked with the family.
[4] Over the next eight years, the Society had seven more openings which were investigated and the Society provided the family with support. The openings dealt with various issues such as verbal disputes between the parents in front of the children, the father being admitted to the hospital in March 2011 presenting as “disorganized and psychotic”; an allegation in May 2001 that the mother had physically abused one of the children; in August 2012, concerns were raised about the mother smoking marijuana and leaving the children unattended; in December 2012, the father was hospitalized for mental health issues, and in January 2013, disclosures were made by to the children about the parents fighting. For a multitude of reasons, the children were never apprehended from the parents mainly because the allegations could not be verified.
[5] In July 2015, the Society received a report from the police that the mother was suffering a panic/anxiety attack. The police and the paramedics who attended reported that the home was filthy, the children’s rooms were dirty, there were not enough mattresses on the floors, there was a strong smell of cat urine, there were no sheets on the children’s mattresses and there was garbage on the floor. A Society worker attended at the home and the mother indicated she was admitting herself to the hospital for treatment for her mental health issues and left the children in the care of the father. The worker observed that there was minimal food in the home, the home was filthy and there was dog feces on the floor. There were holes in the walls and mould in the bathroom. The worker left the children in the care of the father and returned to the home a wee later. The worker confirmed that the cleanliness of the home had improved significantly over the week. The mother returned home, but her mental health was not well. Finally, the father reported to the worker that he planned on separating from the mother.
[6] In mid-July 2015, the mother’s family doctor advised the Society that the mother should not be alone with the children for a period of more than 1 to 1 ½ hours due to her mental health issues. In early August, a worker attended at the home and met the mother who indicated she was having a mental breakdown, wanted to go to the hospital and was crying uncontrollably during the worker’s visit.
[7] On August 11, 2015, the Society was advised that the mother had been admitted to the Oaks Residence to deal with her mental health issues. On August 20, 2015, the mother was not participating in the program, was not cooperative and was discharged from the Oaks Residence.
[8] From August 2015 to the date of the apprehension, the children remained in the care of the father. From mid-August 2015 until mid-February 2016, the mother attended the family home to have access to the children for up to five hours at a time. Unfortunately, the parties argued resulting in the police attending nine times at the family residence between October 22, 2015 and February 13, 2016.
[9] During this period of time, the Society was concerned that the father was reconciling with the mother and that she would return to the family home and stay for extended periods of time. Further, the Society asked the father to ensure that his girlfriend not be permitted to be around the children which had been a cause of disagreement in the past. Consequently, on February 4, 2016, the father signed a voluntary agreement with the Society.
[10] On February 13, 2016, a dispute occurred between the father and the mother who had been exercising access to the children in the family home. At that time, the mother allegedly threw a toaster at the father and she was charged with assault with a weapon. One of the conditions of her release was that she was to have no contact with the father and that she could not attend at the father’s home.
[11] On May 12, 2016, the police contacted the Society because the father was alleging that there were people in his attic, and that the father had the children sleeping in the living room out of fear that someone was in his attic. Police advised the Society that the home was in a state of disarray. As a result of the concern raised by the police, a society worker tried to reach the father the same day by phone without success. The worker did confirm that the children were all in attendance at school that day.
Apprehension
[12] On May 15, 2016, the police contacted the after-hours worker of the Society advising that they were again at the home of the father and that they were so concerned about his mental health that they were bringing the father to the hospital for a psychiatric assessment. The police attended at the father’s home that evening after another call from the father that he was concerned that there were people up in his attic. The police arrived and found the father in his van with all six children next to the house. Police attempted to enter the home to investigate the concerns raised by the father. They noticed that the father put a steel bar on the back door and a table in front of the front door. The police entered through a broken window.
[13] Upon entry into the home, the police found the house in a state of disarray. There were dishes piled in the sink and on the counter, garbage all over the floor, there were no sheets on the beds and there were holes in the walls. After conducting a search of the home, the police did not find any people in the attic.
[14] After receiving the call, a Society worker attended at the home. The police advised the worker that the father’s mental health had seriously deteriorated since they had been in contact the previous week. The worker observed that the large window in the front door of the home was broken and a large piece of wood had been screwed over it. Upon entry, the worker observed that the sink and counter in the kitchen were littered with dishes, there were a number of dry fruit items in the cupboards, and the fridge was quite bare and dirty. The police believed that the father had put holes in the ceiling in an attempt to get to whomever he believed was in the attic of his home. The worker also observed that the bedrooms had no lights.
[15] The worker contacted the mother and advised her that the children were being apprehended because the father was being admitted to the psychiatric unit of the Ottawa General Hospital.
[16] On May 20, 2016, the Honourable Justice Sheffield ordered that on a temporary and without prejudice basis, the children would be placed in the care and custody of the Society and the parents would have access at the discretion of the Society with the mother having a minimum of two access visits per week.
Parties Positions
[17] The Society’s position is that the children should remain in their care because father lacks insight and has serious mental health issues that require stability. The father’s position is that the children should be returned to him under a custody order or in the alternative, under a supervision order, and in the further alternative, that he should have liberal and generous unsupervised access to the children. Finally, the father seeks the appointment of the Office of the Children’s lawyer.
[18] The mother seeks the return of the children to her care once she finds accommodation and, in the alternative, she supports their return to the father.
Current Circumstances
[19] The father was discharged from the Ottawa General Hospital on June 1, 2016. The father’s psychiatrist has confirmed that the father’s mental health has improved; that he is not as paranoid as he first was when admitted to the hospital, but confirms he still has odd thoughts and worries such as being sucked up from overhead drones. The father continues to attend the hospital on an outpatient basis to receive injections of medication for his mental health administered every four weeks and for appointments with an outpatient psychiatrist.
[20] On June 6, 2016, the father contacted the worker for the first time since the apprehension to organize access with his children. The father advised the worker that he was to be evicted from his previous residence on June 20, 2016 and he was trying to secure another place to live. The father denied that he had a mental health breakdown, but did admit that he had become more paranoid.
[21] On June 30, 2016, the father advised the worker that he had secured a three-bedroom townhouse and that he would obtain some furniture from the Salvation Army.
[22] The father has had two outpatient injections and one appointment with the psychiatrist of the Ottawa General Hospital on July 21, 2016. The father’s inpatient psychiatrist advised the worker that the children should not be returned to his care until they are able to see that the father complies with the appointment and treatments over time. The doctor advised he was concerned that the father was not compliant with taking his medication in the past and he was currently denying and minimizing his current mental health issues.
[23] With respect to the mother, she does not have any housing appropriate for the children but was presenting a plan of care with the help of her brother until her brother withdrew his support to house all six children.
[24] The Society was advised by the parents that they intend to reconcile. The Society’s concern is that the ongoing conflict between the parents has resulted in numerous arguments in front of the children and the involvement of the police.
[25] In the past, the father was diagnosed with schizoaffective disorder which requires him to take his medication. The father truly believes that his neighbours were in his attic and that is why he called the police on two separate occasions. By the time the police arrived on the first occasion, they found no one in the attic. By the time they arrived for the second incident, they concluded the father required psychiatric assistance which was confirmed by the doctors when he was in the Ottawa General Hospital for psychiatric assistance from May 15, 2016 to June 1, 2016.
[26] On the day the children were apprehended, the father advised that he was surprised that he was being admitted to the hospital for a mental health assessment because he believed he was being brought there because of a cut on his hand when he slipped and knocked over a mug that shattered and cut his hand on the bathroom floor.
[27] The father has had an opportunity to file his affidavit after seeing the affidavit material from the Society. Despite the Society’s evidence being very specific to the state of his home on May 15, 2016 , the father simply states that he was a single father with six children between the ages of 11 and seven years of age and consequently, that his home was not always in the cleanest state. He states that the sink and counter in the kitchen often have dishes because he does not wash the dishes until the children have gone to bed. He states that the clothes in the basement are clean and laundered and although he is not rich, he always makes sure that there is enough food for the children.
[28] The father confirms that his first access to his children after being discharged from the Ottawa General Hospital was on June 20, 2016. He had a visit for approximate one hour and a half. He had access to the children on June 24, 2016 for another hour and a half. Over the next few weeks, access was not exercised for a variety of reasons such as confusion on the dates, the father being ill and closure of the Society’s offices during the Canada Day weekend.
[29] He is now seeing his children twice a week for 1.5 hours.
[30] The mother seeks the return of the children to her care. At this time, she cannot afford a residence. She states that her brother is prepared to assist her in finding suitable accommodations for her and the children. The mother’s plan was that she would receive the assistance of her brother who has five children of his own. On July 22, 2016, the uncle indicated that he is not in a position to have the mother and her six children join him in his residence with his five children as it would be impractical and not feasible to have 11 children in his residence on a full-time basis.
[31] Her position before the court is that the children should be returned to her once she has obtained suitable housing for her and the children. The mother has provided evidence from various third parties such as the school principal, the Canadian Mental Health Association, Family Services Ottawa, the New Directions program and from Dr. Peter Duffy confirming the efforts she is making to deal with her mental health issues as well as confirming previous involvement with the children.
[32] The next court date for the mother’s assault charges is September 13, 2016 at which time she hopes to secure a conditional discharge. If the children are not to be returned to her care, they should be returned to the father’s care. The uncle now supports the mother’s plan that once she obtains a residence, she should have the children returned to her care. In the alternative, he indicates that if the children are not returned to her care, he would be prepared to supervise the access if he is approved by the Society.
[33] The children have been placed in two separate foster homes. The children are doing well and have attended summer camps in July 2016 and will be attending in August 2016. The parents each attend two visits per week. The evidence from the Society indicates that the visits are very busy, but the parents are child focused by bringing appropriate snacks and engaging in age-appropriate activities with the children. The concern raised by the Society is that the children engage in inappropriate behaviour and that each of the parents has struggled to have the children listen to their direction and are not aware of the whereabouts of the children at all times. All access visits are now fully supervised at the offices of the Society.
Analysis
[34] The motion before the court is a temporary care and custody hearing to determine the children’s residence until the matter can proceed to trial. Section 51(3) of the Child and Family Services Act, R.S.O. 1990, c. C.11 states:
(3) The court shall not make an order under clause (2) (c) or (d) unless the court is satisfied that there are reasonable grounds to believe that there is a risk that the child is likely to suffer harm and that the child cannot be protected adequately by an order under clause (2) (a) or (b). 1999, c. 2, s. 13.
[35] The Honourable Justice Blishen in Children’s Aid Society of Ottawa Carleton v. T., 2000 21157 (Ont. S.C.), held that there must be reasonable grounds to believe that there is a real possibility that if the child is returned to the parents, it is more probable than not that the child will suffer harm. The Society must decide if the child cannot be actually protected by terms and conditions of an interim supervision order to the parents.
[36] The father had the physical custody of the children prior to the apprehension by the Society. In those circumstances, the court must determine if there are reasonable grounds to believe that there is a risk that the children will likely suffer harm and that they cannot adequately be protected if they return to their father’s care.
[37] With respect to the father, I find that there are reasonable grounds to believe that the children are likely to suffer harm if they return to the father and that they cannot adequately be protected by returning the children to the father under supervision order. I find that the father has suffered from mental illness, has suffered psychotic episodes, was involuntarily admitted to the Ottawa General Hospital for approximately two weeks in the psychiatric unit and has only recently been released.
[38] The father in his affidavit material does not deny the allegations of the after-hours worker who attended on May 15. The allegations made by that worker that were not denied were that the father had put a steel bar on the back door and a table in front of the front door of his home; that a window was broken; that there was garbage all over the floor; that there were no sheets on the beds; that there were holes in the walls; that a large window in the front of the home had been broken out in a large panel of wood had been screwed over it and that the bedrooms were bare and without lights.
[39] The six children lived in such conditions until they were removed by the Society on May 15, 2016. The fact that the father permitted his children to live in those conditions coupled with the father’s very serious mental health issues create the reasonable grounds to believe that if the children are returned to their his care, they are likely to suffer harm with or without a supervision order.
[40] Since that time the father was released from the hospital on June 1, 2016, was evicted from his previous residence, has had access to his children two times per week; has found a new residence and is only recently embarked on a course of treatment designed by his psychiatrist.
[41] The father has filed a letter from Dr. Kardash, dated July 25, 2016, the children’s pediatrician where he states in the body of his letter the following:
he is capable of providing adequate and appropriate care for his family provided that he maintains careful follow-up care with an adult psychiatric facility in order to be certain of continuity of care with his underlying problem.
[42] While the Court has considered the pediatrician’s opinion, the information set out in the letter is sparse and without context. However, even the pediatrician confirms that there is a condition to the recommendation that the children be returned to his care being that the father continues to follow the directions given to him by the psychiatric facility which includes the injections and the meetings with the psychiatrist.
[43] Given the seriousness of the allegations at the date of apprehension in the passage of such a short period of time, the court is not prepared to take a chance to return the children to the father. The court finds that it is premature to return the children to live with him with or without a supervision order.
[44] With respect to the mother’s plan, she was not the parent who had physical custody of the children prior to the apprehension. The children remained in the care of the father from August 2015 until the apprehension in May 2016. The mother assaulted the father in front of the children on February 13, 2016. The mother does not have a residence to care for the children. The court is not prepared to make an order returning the children to the mother’s care on the condition that she obtains a residence at some future time.
[45] On the issue of access, the evidence is that the access is positive and the parents are seeing the children two times per week at the offices of the Society.
Disposition
[46] The court orders that the children be placed in the temporary care and custody of the Society pending disposition of this application. The parents may have access to the children at the discretion of the Society, a minimum of two times per week for each parent for 1.5 hours for each visit.
[47] The court appoints the Office of the Children’s Lawyer for the children M. F-K. and K. F-K.
Mr. Justice Mark Shelston
Released: August 3, 2016
CITATION: Children’s Aid Society of Ottawa v. S.F. 2016 ONSC 4914
COURT FILE NO.: FC-16-1016
DATE: 20160803
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
M. F-K., K. F-K., C. F-K., B. F-K., Z. F-K. and J. F-K.
BETWEEN:
THE CHILDREN’S AID SOCIETY OF OTTAWA Applicant
– and –
S.F. R.K. Respondents
Endorsement
SHELSTON, J.
Released: August 3, 2016