Children’s Aid Society of London and Middlesex v M.L.R., W.H. and C.M.P., 2016 ONSC 6322

Court File and Parties

COURT FILE NO.: C205/08-05 DATE: October 11, 2016 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: M.L.R., W.H. and C.M.P., respondents

BEFORE: MITROW J.

COUNSEL: Sandra Welch for the Society M.L.R. not appearing W.H. not appearing Wanda Corston for C.M.P.

HEARD: August 4, September 8 and October 7 of 2016

Endorsement

[1]

Overview

This is a status review application dealing with two children, S., age 7, and N., age 5 (sometimes referred to as “the children”).

2The respondent, Ms. R., is the children’s mother; the respondent, Mr. H., is the children’s father; the respondent, Ms. P., is the paternal great-aunt of the children. These respondents are referred in the balance of these reasons as “mother,” “father” and “Ms. P.”

3The father was properly served and is in default; service on the mother was dispensed with.

4Ms. P. and the Society, on consent, seek a final order pursuant to s. 57.1 of the Child and Family Services Act, R.S.O. 1990, c C.11 awarding custody of the children to Ms. P.

5The children have a half-sibling, A., age 8, who was made a ward of the Society for six months pursuant to my order dated August 4, 2016. All three children have the same mother.

6On June 18, 2015, a final order was made by Aston J. placing both children in the care of Ms. P. for 6 months, and subject to the applicant Society’s supervision and 13 terms and conditions. This order provided that the parents have reasonable access, supervised at Society discretion.

7The current status review application is a review of the final order of Aston J.

8This application was adjourned twice so that more evidence could be filed and/or reviewed by the court; this includes a 38 page kinship assessment done by the Children's Aid Society of Oxford County, at a time when Ms. P. wanted to assume care of S., N. and their half-sibling, A.

9In total, 11 exhibits were filed, including police records checks and form 35.1 affidavits for Ms. P., her mother, E.P., and her son, C.; Ms. P.’s mother and son were residing with Ms. P.

10Also, some brief viva voce evidence was heard from Ms. P. on August 4, 2016 and October 7, 2016; further, Ms. P. filed an affidavit.

11Included in the materials was a subsequent kinship assessment prepared by the applicant, Children's Aid Society of London and Middlesex (“Society”) in 2015.

12The mother has had eight children, none of whom are in her care; some of the children were made Crown wards.

13The evidence discloses numerous protection concerns regarding the mother; she has not participated in this proceeding and she has not had any contact with the children for several years, including since the children have been in Ms. P.’s care.

14The father presents no plan and has not participated in this proceeding. Numerous protection concerns exist regarding the father.

[15]

Best Interests of the Children

I am satisfied on all the evidence that it is in the best interests of the children that they be placed in the custody of Ms. P. The evidence discloses that the children are doing well in her care and that she is meeting all their needs. Ms. P. has a clean police vulnerable sector records check, and any contact that she has had with a Children’s Aid Society is amply detailed in the evidentiary record.

16On October 7, 2016, it was Ms. P.’s testimony that she had just moved; that her mother and adult son, C., no longer reside with her; although Ms. P. continues to reside in Ingersoll, she resides only with the two children and her daughter, age 17.

17The order below does address access by the mother, and by the two children to their half-sibling, A. These access terms were agreed to by the Society and Ms. P. at the hearing.

18Further, the parties present at the hearing were content that access by the father to the children should be reasonable access, as agreed to by Ms. P. and the father.

[19]

Father's Access

However, I find that some further evidence and submissions are required to deal with the father’s access.

20In relation to the father, the evidence from Ms. P. was that he saw the children alternate Sundays from 9:30 a.m. to 6:30 p.m. A driver for the Society had been facilitating the pick-up and return of the children between Ingersoll, where the children and Ms. P. reside, and London where the father resides; apparently the father does not have access to a vehicle.

21The kinship assessment (see page 6), prepared by the Children's Aid Society of Oxford County in 2013, indicates that the father has a long history of sexually inappropriate behaviour with both male and female children, including siblings and cousins. Apparently this abuse was not verified until the father was a teenager. The father had engaged in this conduct while under the age of 12. (It is not clear whether this conduct was engaged in after the father was age 12 or older.) The father completed a residential sexual offender’s treatment program while he was age 15 to 17, including phallometric testing. Further, this kinship assessment also refers to the father as being a victim of sexual abuse.

22The kinship assessment prepared by the Society in 2015 recommended placement of both children with Ms. P., and refers to the Oxford County kinship assessment stating it was “noted that W. [the father] is a known sexual offender,” and further stating that the father has biweekly unsupervised access with both children for approximately two hours, with access exchanges at the Society.

23The statement of agreed facts (Ex. #10), although it refers to some issues regarding the father, makes no reference to the sexual abuse described in the Oxford County assessment as having been verified; the statement of agreed facts, in relation to access, states that “the girls continue to have regular access with their father.”

24Given the father’s history, it is somewhat concerning to read the Society’s 2015 kinship assessment where it refers to the child, S., as exhibiting “some sexualized behaviour” at the foster home where she was residing at the time.

25Given the disturbing evidence regarding the father, the evidentiary record raises a concern as to whether the father’s access to the children should be supervised. Put simply, more evidence is required. It is apparent that the father’s access currently is unsupervised and, clearly, the Society is aware of same.

26Accordingly, the Society needs to provide additional affidavit evidence that deals with issues as to the extent, if any, that the father currently poses a risk to both children, and whether his access should be supervised and, if so, by whom. Further, the nature of S.’s sexualized behaviour should be explained, to include whether that behaviour has continued and, if so, what measures were taken to address the behaviour. Further, Ms. P. should provide an affidavit on the issue of the risk, if any, posed by the father to the children during access. She should also provide evidence as to whether she has observed S. engage in any sexualized behaviour.

27This affidavit material should be filed two days prior to the next return date set out in the order below. Ms. P. and a witness for the Society should consider being present at the next court date in the event that some oral evidence is required.

[28]

Order

The following order is made in the current status review application (with the order being final as to all issues except the father’s access):

1. The existing supervision order of Aston J. dated June 18, 2015 placing the children with Ms. P., subject to Society supervision and subject to 13 terms, is terminated.
2. A separate order shall issue placing the children in the custody of Ms. P. pursuant to s. 57.1 of the Child and Family Services Act.
3. The issue of access to the father is adjourned before me to Friday, October 28, 2016 at 10:00 a.m.

29A separate order, to be prepared by the Society, shall issue as follows:

1. The file number shall be shown as C205/08-05.
2. Ms. P. shall be shown as the applicant and the father and mother shall be shown as the respondents.
3. The order shall provide as follows (with the order being final with respect to all issues, except the father’s access): a. The applicant, Ms. P., shall have sole custody of S. and N. b. The respondent mother shall have access to the children as agreed to and permitted by the applicant, Ms. P. c. The children, S. and N., shall have reasonable access to their half-sibling, A., as arranged by the applicant, Ms. P., and A.’s legal custodial caregiver. d. The issue of the respondent father’s access to the children, S. and N., is adjourned before me to Friday, October 28, 2016 at 10:00 a.m.