Leeds and Grenville v. C.B. 2016 ONSC 6465
COURT FILE NO.: 14-0370
DATE: 20161017
ONTARIO
SUPERIOR COURT OF JUSTICE
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT
BETWEEN:
FAMILY AND CHILDREN’S SERVICES OF LANARK, LEEDS AND GRENVILLE
Applicant
– and –
C.B.
Respondent
Heather Morrison, for the Applicant
C.B., Self-represented
Reasons for judgment
PEDLAR J.
[1] This is an application by Family and Children’s Services of Lanark, Leeds and Grenville (hereinafter referred to as “the Society”) seeking an order placing the child, J.B.L. (hereinafter referred to as “the child”), born […], 2011, in the custody of his paternal grandparents. C.B. is the mother of the child and the biological father is D.L., who has chosen to not put forth a plan for the child.
[2] The record indicates that C.B. had involvement as an adult with child protection services while residing in Hamilton, Ontario, following the birth of the child. Concerns at that time related to domestic violence with her partners.
[3] C.B.’s relationship with the child’s father, D.L., took place between January, 2010 and March, 2011, ending shortly after the birth of the child. That relationship was described as tumultuous. D.L. eventually left the province of Ontario and is reported to be residing in the Edmonton, Alberta area. He is described by his parents as having struggles with addictions to drugs and he has not kept in touch with his family members, who report that he may even be homeless.
[4] Following the separation from D.L., C.B. entered into a relationship with E.M. That relationship was characterized by alcohol abuse and violence. The Hamilton Children’s Aid Society threatened to apprehend the child if C.B. returned to the relationship with E.M. and she chose not to do so.
[5] In July, 2012, C.B. moved with the child back to the Brockville area. An Agreed Statement of Facts, filed at Tab 4 of Exhibit Number 1, indicates that a child protection support worker began to work with her on parenting issues as well as assisting her in accessing community supports.
[6] C.B. reunited in January, 2013, with C.C., a male with whom she had an earlier relationship when she was age 18 and he was 22. She described it as a type of “forbidden” relationship as he was a bit older and known to be involved in the drug subculture and partying lifestyle at that time. By the time they reunited in January of 2013, she was aware that he had six children by six different mothers. She describes their relationship as on and off. They did not live together fulltime. Although there were no drugs in the house, according to her, he would leave periodically and deal drugs in the community. There was a period of approximately 12 months of a voluntary relationship between C.B. and the Hamilton Children’s Aid. She complains now of a lack of support by the CAS for her relationship with C.C., indicating that they should have supported her more, in which case that relationship may have succeeded.
[7] The Society’s concerns escalated when, in early 2013, C.B. and C.C. started their relationship. The Society expressed concern about C.C.’s history of perpetrating violence in domestic relationships, along with his substance abuse and criminal history. C.B. acknowledges that she was aware of C.C.’s criminal history and that it included violence but attributed much of the behaviour to his own mental health and history of abuse. She chose to remain in the relationship.
[8] The Society allowed C.C. to move in with C.B. and the child, under an agreement that the child would not be left alone with C.C. In April, 2013, C.C. was charged with assault against the child following an incident at a restaurant. In regard to this incident, C.B. described the child as acting out against her at the table. C.C. intervened by taking the child to the washroom in the restaurant. Patrons of the restaurant subsequently contacted police after allegedly hearing a slap and a child cry. C.B. indicates she did not see the incident. C.C. was charged but ultimately found not guilty following a trial.
[9] During the trial of this child protection matter, C.B. called a friend of hers, C.L., as a witness who was present on the evening in the restaurant when this alleged assault took place. Her evidence was that she heard nothing. She said she was too far away and that you can’t hear what is going on in the washroom. Even though C.B. admits that her relationship with C.C. was problematic, she has tended to focus on him being found not guilty of assault on the child as support for her case to have the child returned to her care.
[10] C.B. continued to work with the Society who eventually supported supervised visits between the child and C.C.
[11] C.B. reports that she was struggling with depression during August of 2014. On September 3, 2014, she had not filled a prescription for her medication and attended a walk-in clinic and spoke with a nurse on September 4, 2014. She was sent to the hospital out of concern that she was suicidal. During that time, she left the child in the care of her mother. She advised that by the time she picked up her medication from the pharmacy, the child was apprehended. In spite of her initial anger and frustration, she attempted to support the child and attended supervised access regularly and those visits demonstrated positive interaction and affection between C.B. and the child. The worker described efforts by C.B. to support the child in transitioning and in implementing more consistent boundaries and discipline. C.B. also seems to have shown insight into how her relationship with her mother influenced her parenting. Even though she knew her relationship with C.C. was problematic for the Society, she continued that relationship after the child’s apprehension in the fall of 2014. She continued to present him as a reasonable partner to reside with her and the child. Eventually, that relationship, according to her evidence, was terminated in January, 2015.
[12] In February, 2015, C.B. began what she describes as an on-again and off-again relationship with A.C., which lasted between February and April of 2015. The CAS worker told her that she would have to choose between this new person and having her son returned to her care. He was found at her residence on a Monday afternoon after he stayed the weekend. C.B. stated they were no more than friends. When A.C. left at the end of April, 2015, to take up his regular seasonal employment, C.B. told him he couldn’t stay because CAS said so.
[13] In late April, 2015, a civilian witness, E.Z., states that she saw C.B. walking on King Street with C.C. together. Earlier that day, she had seen C.B. very agitated and frantic, walking back and forth at the courtyard of Sheridan Mews at which time the child was with her. She was familiar with all three parties and there was no doubt in her mind that they were later walking side by side in the same direction.
[14] In early May of 2015, the current parenting capacity assessment by Dr. Gowthorpe was received, at which time C.B. and her support worker, and counsellor from Interval House, attended to discuss the results.
[15] A new Statement of Agreed Facts was prepared and in early June, a three month Society wardship order, followed by a nine month supervision order, was entered into, with the plan to reintegrate the child during the months of June, July and August into the home of C.B., provided she could demonstrate in those three months her ability to continue to reach out to the community for the support she needed through counselling regarding her mental health and her challenges in developing healthy relationships with adult males. C.B. was also to be given that length of time to demonstrate that she had the ability to place the child’s needs ahead of her own, which she had not been able to do up until that point for any consistent period of time. The primary concern was her lack of insight into the child’s needs being different to her own desires. She was making progress but because of the continued concerns, she was to be given the three month period to put into practice her stated recognition of those concerns, which had been heightened when she had recently decided to expose the child to his biological father by phone calls, also by planning a possible relationship with A.C., as well as developing a plan to possibly move to Calgary to be near her own biological father with whom she had no relationship for many years until very recently. The three month period was also to provide consistent access and monitoring of the increased time that the child would spend with C.B., more support for C.B.’s mental health issues and she was to engage with in-depth counselling.
[16] In what can only be described as a stunning and brutally disappointing development early in July, 2015, C.B. chose to establish a relationship with another adult male, E.D. She had agreed to the plan that there would be no new boyfriends during a three month period and that the terms of the nine month supervision to follow the Society wardship would include terms that no other persons will reside in the home without the prior approval of the Society other than herself and the child and that she will advise the Society of any changes to her personal circumstances including any new relationship and provide the Society with the name of any potential partner to whom the child may be exposed.
[17] She began the relationship with E.D. without discussing it with the Society. The Society was concerned when they learned of this relationship. The Society worker made it very clear she would have to choose either her son or her relationship with E.D. C.B. said she would choose her son, but she clearly did not do so. E.D. and his mother and sister gave evidence of multiple visits in Brockville during the summer of 2015 in July and August when both C.B. and the child were there, as well as E.D. There was one occasion when they spent the day at the beach with the child who suffered second degree burns as a result of failure to properly protect him from the risk of sunburn with his very fair complexion. C.B. continued to have E.D. with her when the child was not there and she looked after his dog.
[18] Commencing in September and October, 2015, C.B. expressed her wish to move to a larger centre, allegedly to have more services provided. In fact, in November, 2015, C.B. and E.D. moved to the Ottawa area where a number of his family members are located. Both C.B. and E.D. gave evidence that they were “illegally” evicted from their rented accommodation and had no other options. Clearly, C.B. could have remained in the Brockville area and the events surrounding the ending of their tenancy remain extremely unclear in terms of what legal remedies they may have had, but decided not to take, against their landlord if the circumstances were as outlined in evidence. They talk about threats against C.B. and complaints that the police did not respond and inability to go to the Landlord and Tenant Board for reasons that are extremely vague and unexplained.
[19] At the trial, C.B. said that Interval House was not an option because she found it a very depressing place when she had been there in the past, although she had a very helpful and supportive connection to a counsellor and it was not clearly explained why the possible option of residing on a short term with her mother while other accommodation could have been sought was also not looked at in more depth.
[20] That move was very significant in that it reduced her access time with the child to one-half as many times as she had been enjoying while residing in the Brockville area. That situation went on for approximately six months. The only time she attended was if the Society provided transportation for her. Again, the Society raises the issue of her putting her own interests first and continuing this relationship with E.D. resulting in reduced contact with the child throughout that period of their residence in Ottawa.
[21] It is also very evident that despite repeated requests from the Society, E.D. was not forthcoming about his history of prior relationships with adult females and criminal convictions which resulted from those relationships. Since January, 2015, the Society had been consistently requesting that E.D. provide a CPIC report. Such a report is clearly available to any person seeking it upon paying a relatively modest fee to do so. No volunteer or employee is allowed to work with children in any capacity in this province without providing a CPIC. I reject E.D.’s attempts on the witness stand during his evidence to explain the delays. He would need a CPIC to volunteer at a boys and girls club, or a local church or community based organization, let alone be employed in a capacity of working with children either with such an organization or government. To suggest that the RCMP refused to provide a CPIC report because they did not trust the Children’s Aid Society is not credible and the failure to cooperate and provide such basic and highly important and relevant information can only lead to the assumption that a person who takes that approach is attempting to hide something. Clearly, his refusal to cooperate and provide this information in a timely fashion has been to the detriment of C.B. and her relationship with the child.
[22] As it turns out, E.D., from the evidence available to this court, has established a history of unstable and unhealthy relationships with adult females, at least two of which have resulted in criminal convictions including an assault and two counts of criminal harassment.
[23] According to the evidence at this trial, some of which came from E.D.’s mother as well as the documents filed at Tab 6 (A) through (D) of Exhibit Number 8, it appears that at least between the years of 2001 through 2008, E.D. experienced a number of unhealthy and unstable relationships with adult females. The relationship with his first partner was described in terms that they both drank alcohol and had many arguments and fights. He ended up with a conviction of assault and spent three months in a detention facility. His mother described this situation as being one where he really hurt his partner and where the Crown presented it as a very serious matter while her son, E.D., was very remorseful. When he took the stand during this trial, he did not demonstrate any remorse. He said that first partner was a bad alcoholic and a drug addict and that she had had two previous boyfriends whom she put in jail. He said she would often stay out late drinking and come home bruised and that his lawyer literally put his hand over E.D.’s mouth and pled guilty on his behalf.
[24] E.D. described his next partner as another drunk who knew how to push his buttons. He pled guilty to two counts of criminal harassment and he denies that this demonstrates any history of domestic abuse. He said his mistake was not walking away when he should have and the problem was his choice of partners and he seemed to lack any sense of responsibility and described these events as his great misfortune.
[25] I find E.D.’s evidence on these issues quite troubling. He clearly attempts to minimize his own responsibility and rationalize his conduct. The two scenarios presented follow a rather classic example of the complexity of interposing a criminal justice system into the dynamics of human relationships between adult males and females. Specialized courts have been established to try and manage the obvious tension that often exists between the goals of a criminal justice system and the system of justice focused on best interests of children and resolving family matters from a very different perspective than criminal justice.
[26] These two scenarios fall clearly into the definition of domestic violence. It is not unusual to see a number of charges laid and guilty pleas being taken to a lesser number and sometimes to lesser charges in order to avoid the necessity of a trial, often involving somewhat reluctant victims still struggling with many of the emotions surrounding those relationships.
[27] E.D. seems to lack insight into his responsibility in the events that resulted in criminal convictions. These charges to which he has admitted and pled guilty are classic domestic violence charges, including the counts of criminal harassment.
[28] Without a CPIC, the court is not in a position to make any other conclusions regarding his criminal record. There is discussion of charges from group homes or mental health centres with other residents being involved. They may be relevant as to mental health or tendency towards violence but are not apparently directly involved in domestic relationships.
[29] I find that both C.P. and E.D. tend to lack insight into the consequences of exposing a child to a home characterized by domestic upheaval, instability, violence or threats of violence. By his very guarded and reluctant participation in this process in an open and honest manner, E.D. has only heightened concerns about his insight into the best interests of the child. Both C.B. and E.D. are well meaning in the sense that they recognize that the child loves his mother and his mother loves him. They both want to be together, which is understandable, given that emotional connection. The lack of insight comes from the pattern of C.B. involving a series of different adult male partners in her life, since the birth of the child that have not proven to be in the child’s best interests. E.D. has stated that he gets along well with children. He has been supported in that statement by members of his family who particularly emphasize his ability to engage children at their level and befriend them. The mother, C.B., has demonstrated a capacity within an access visit to relate very well to the child in many circumstances and seems to be learning some techniques that will be of assistance in addressing his apparent need to control the relationship.
[30] What is lacking on the part of both C.B. and E.D. is insight into a need to put the child’s interests ahead of their own desires. The problem with a lack of insight is that, by definition, it cannot be seen by those in whom it is lacking. That does not mean they do not mean well. I am not associating any deliberate attempt by C.B. to do anything except what she feels is best for her son. She just does not understand that she has chosen, and continues to choose, her needs for a relationship with an adult male over her need to be a strong, stable, consistent parent for the child without introducing a constant series of different male partners in a parenting role. None of those partners have proven to be a positive role model for the child and, unfortunately, the history of E.D. of relationships with adult females that have been very unhealthy, unstable and resulted in criminal convictions heightens that concern, especially when she had a clear mandate to protect the child from another potentially, and even predictably, troubled dynamic in her home.
[31] C.B. had a clear opportunity in the summer of 2015 to put the child first and allow the reintegration to proceed. She, from her own evidence, felt it was unfair that she was not allowed to have a relationship with an adult male like most other people. That evidence alone shows that she lacks the insight needed to protect the child from the instability and potential long term damage that can arise from being raised in a chaotic home environment. There are decades of scientific studies to support the reality of that risk.
[32] The concerns expressed by the Society and supported by the Parental Capacity Assessment are not that a new male adult partner would necessarily deliberately abuse the child. There is no evidence that E.D. presents such a risk that has been given to this court. The risk is in the need to put the child’s interests first and not create the potential for upheaval, instability, violence or threats of violence, between the adults who are supposed to be caring for, and protecting, the child and providing a safe home environment for him. The risk is not that the child would be necessarily the intended victim of any such circumstances but that he would be exposed to his mother being mistreated and, over an extended period of time, would suffer severe emotional or psychological abuse as a result of being exposed to that trauma.
[33] On September 23, 2014, the child was found to be a child in need of protection pursuant to Section 37(2)(g). That section reads as follows:
37(2) Child in Need of Protection – A child is in need of protection where,
…(g) there is a risk that the child is likely to suffer emotional harm of the kind described in subclause (f)(i), (ii), (iii), (iv) or (v) 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.
For context, Section 37(2)(f) reads as follows:
(f) the child has suffered emotional harm, demonstrated by serious,
(i) anxiety,
(ii) depression,
(iii) withdrawal,
(iv) self-destructive or aggressive behaviour, or
(v) delayed development.
[34] Based on the above-noted evidence, I find the child remains a child in need of protection pursuant to Section 37(2)(f) in terms of the plan of the mother to have the child returned to her care. The chronic lack of insight by the mother into the risk to which this child was exposed in her care, and would be if returned to her care, is clearly established and continues for the immediate foreseeable future.
[35] By following the statutory pathway provided for in the Child and Family Services Act, I am directed to Section 65(d), then to Section 57.1, and then to the tests for best interests set out in Section 37(3), I find that subsections 1, 2, 5, 6, 7, 10, 11 and 12 are all relevant. These read as follows:
Section 65. Court May Vary, etc. – (1) Where an application for review of a child’s status is made under section 64, the court may, in the child’s best interests,
…(d) make an order under section 57.1.
Section 57.1 Custody Order –
(1) Subject to subsection (6), if a court finds that an order under this section instead of an order under subsection 57(1) would be in a child’s best interests, the court may make an order granting custody of the child to one or more persons, other than a foster parent of the child, with the consent of the person or persons.
(2) Deemed to be order under Children’s Law Reform Act – An order made under subsection (1) and any access order under section 58 that is made at the same time as the order under subsection (1) shall be deemed to be made under section 28 of the Children’s Law Reform Act and the court,….
Section 37(3) Best Interests of Child – Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall take into consideration those of the following circumstances of the case that he or she considers relevant:
The child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.
The child’s physical, mental and emotional level of development.
The importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family.
The child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community.
The importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity.
The effects on the child of delay in the disposition of the case.
The risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent.
The degree of risk, if any, that justified the finding that the child is in need of protection.
[36] The child’s behaviour issues need a firm response where boundaries are maintained and routine and rules are enforced in a kind and appropriate manner. It was noted in the evidence that when the child is in the care of his mother, he takes over the role of the parent or the boss and, as her access increased over the spring or early summer of 2015, the struggle continued and she admitted that it was difficult for her to control him. It is important, of course, to keep the strong connection between the child and his mother. He has been placed with his paternal grandparents who are also raising one of his cousins with whom he appears to relate positively. The observations of the child in the home of his paternal grandparents is that he is comfortable and happy there. Both the foster mother and the CAS workers have observed him there and he initially settled well into their home and there was a positive connection to the environment in which he is being raised including positive experiences at school.
[37] It must be noted that C.B., as his mother, is well meaning and has good access with him. She loves him and he loves her, as noted above. His disruptive behaviour following access is difficult to fully explain. He has gone through a series of watching his mother have tumultuous relationships with males, plus deal with her own mental health issues. He has used the word, “Daddy”, to relate to several males rather inappropriately when one thinks of the true depth of a proper father/son relationship. The child has been denied that experience in his short life. He needs to know where his home is and he certainly regressed when the reintroduction failed. These access visits that are now occurring result in behaviour that is regressive for him and very detrimental to his wellbeing. The evidence is that he comes around after a few days and then when access occurs, he is again disturbed and disruptive in his behaviour. I have no way of analyzing that other than the obvious rather common sense approach that it likely relates to his confusion driven by his love for his mother, his wish for them to be together and his lack of understanding at his age as to what is really in his long term best interests. He is obviously confused and upset and unable to understand at this stage of his life. He settled in quite well at first, according to the school and it is obvious from the exhibits filed that the school has become concerned about the regression that has occurred since the access has been more frequent.
[38] It is difficult at one level to even understand how a parent who loves their child cannot see past their own needs to focus entirely on the best interests of the child and put their needs aside in order to recognize that a child is wholly dependent on their caregiver and the obligation of being a parent includes the obligation of self-sacrifice of otherwise legitimate interests or desires of their own. The child has already been out of his mother’s care since September, 2014 until now. He has been in the care of his paternal grandparents for approximately five months and initially did very well until access was increased, the result of which has unintentionally been to increase his distress and confusion.
[39] Taking into account the evidence set out above, and applying the relevant subsections of Section 37, I find it to be in the child’s best interests to make the order requested by the Society and place him in the custody of his paternal grandparents, in order to provide him with the stability, routine and security of a home, still within his biological family. His relationship with his mother is, and will remain, important to him. At this stage of life with the number of changes in his life, and the evidence of how destabilizing the frequent access seems to be for him, it would appear to be in his best interests to reduce the frequency of that access. He needs to settle into his home and form strong attachments and feel the security of routine, boundaries and predictability while still maintaining a strong connection to his mother.
[40] As time goes on and he matures, that connection must be maintained and it may be that he will be able to manage more frequent access at some point in the future. The paternal grandparents have indicated they prefer no access, but I feel it is necessary to have some access and agree with the Society that the access should be maintained to allow that relationship to be maintained. I also agree with the proposal that access be once per month and, to begin with, not include overnights. Conditions on that access would be that no third party attend, except as approved in advance by the custodial grandparents. Another condition would be that notice to the local child protection agency be given in the event of any application by the mother to vary custody or access of this child.
[41] It goes without saying this is another difficult and sad set of circumstances that brings this matter before the court. It is important that all of the adults involved in this matter focus on the child’s best interests exclusively. He has been through more than his fair share of upsets in his young life and he needs now to have a period of stability and predictability with the full support of all those who care for and love him. This decision will be particularly devastating for C.B., as his mother. I encourage her to continue to work on all her support systems, get the mental health support and the in-depth counselling she needs to look forward in her life, so that she can play a continued and important role in helping to raise her son. The child clearly loves her and she loves him and they have a special bond that needs to be nurtured. Even though she is not in the role of day-to-day caregiver, she can remain an important part of his life. She has indicated an interest in progressing with her education and career plans. It was never my impression that the Society was seeking to paint either her or E.D. as monsters, as she has stated in her submissions. I certainly recognize that they are both doing what they honestly believe is best and doing their best under the circumstances facing each of them. My ruling is based on what I find to be in the best interests of the child. Included in that finding is the need for C.B. to be involved in her son’s life in a positive way.
[42] Pursuant to Section 57.1(1), I grant custody of the child herein to the paternal grandparents and this order shall be deemed to be made under Section 28 of the Children’s Law Reform Act with daytime access to the mother once monthly, pending further order of the court, or written consent of the paternal grandparents and the mother. No third party is to attend such access, except as approved in writing in advance by the custodial grandparents. The local child protection agency for the jurisdiction where the child resides is to be given notice of any application by the mother to vary custody or access of this child.
The Honourable Mr. Justice K. E. Pedlar
Released: October 17, 2016
Leeds and Grenville v. C.B. 2016 ONSC 6465
COURT FILE NO.: 14-0370
DATE: 20161017
ONTARIO
SUPERIOR COURT OF JUSTICE
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT
B E T W E E N:
FAMILY AND CHILDREN’S SERVICES OF LANARK, LEEDS AND GRENVILLE
Applicant
– and –
C.B.
Respondent
REASONS FOR JUDGMENT
Pedlar, J.
Released: October 17, 2016