The Children’s Aid Society of the Niagara Region v. L.M., 2016 ONSC 7195

CITATION: The Children’s Aid Society v. L.M., 2016 ONSC 7195

COURT FILE NO.: 391/11

DATE: 2016/11/21

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

The Children’s Aid Society of the Niagara Region

Applicant

• and –

L.M.

T.C.

G.W.

R.C.

Office of the Children’s Lawyer

Respondents

K. Hertwig and C. McCaffrey, for the Applicant

Self-represented

Wayne N. Brooks for T.C.

Self-represented

Ian G. Pearson for R.C.

Linda A. McKenzie for the Office of the Children’s Lawyer

HEARD: November 7, 8, 9, 14, 15 and 16, 2016

The Honourable Mr. Justice P.B. Hambly

Judgment

Introduction

1This is a status review application under s. 64 of the Child and Family Services Act (“the Act”) brought by the Children Aids Society of Niagara (“the Society”). It concerns the child C.M. (“C.M.) born […], 2008, age 7. L.M. (“L.M.”), born […], 1997, age 39, is the mother of the child. She has three children, namely, C.2, born […], 1992, age 24; C.1, born […], 2001 and C.M..

2R.C. (“R.C.”) is the father of the child. His mother is T.C. (“T.C.”). She has lived for many years with G.W. (“G.W.”) in London, Ontario. All parties referred to T.C. and G.W. throughout the trial as “the kin”.

Background

3The Society apprehended C.M. in June, 2011 when she was visiting T.C. and G.W. in London. She was 2 ½ at this time. She has no memory of having lived with L.M.. She has resided with T.C. and G.W. since that time. The Society apprehended C.1 at the same time. T.C. and C.1 were living with L.M. in St. Catharines when the Society apprehended them. C.1 is now a crown ward. L.M. has access to her. C.1 is now 15. Also living in the household with G.W., T.C. and R.C. in London is a grandson of T.C., named K., age 13.

4On May 16, 2012, an order was made on consent finding C.M. in need of protection and placing her in the care and custody of G.W. and T.C. subject to Society supervision for a period of six months, with conditions, and with access to her parents.

5On October 21, 2013, an order was made on consent placing C.M. in the care and custody of G.W. and T.C. subject to Society supervision for a further period of six months, with terms and conditions, and with access to her parents.

6On October 21, 2013, a parenting capacity assessment (“PCA”) of L.M. by Dr. Shukri Amin was ordered on consent. He produced a PCA report dated June 2, 2014. On October 15, 2014, an order was made on consent placing C.M. in the care and custody of G.W. and T.C. subject to Society supervision for a further period of four months with terms and conditions, and with access to her parents. On this same date, the OCL was appointed for the child C.M..

7It is the final order of October 15, 2014 that is currently under review. L.M. has had counsel for the most part during the interim proceedings. At trial she was self-represented. At trial Ms. K. Hertwig represented the Society, Mr. I. Pearson represented R.C. and Mr. W. Brooks represented T.C.. Ms. N. Fortier had represented G.W.. Legal Aid Ontario cancelled his legal aid certificate on the eve of trial. I granted an application at the commencement of the trial removing Ms. Fortier from the record. The positions of T.C. and G.W. were the same. Mr. Brooks protected the interests of G.W.. Ms. L. McKenzie represented the Office of the OCL.

The Trial

8I heard evidence over five days between November 7 and 16. I ordered written submissions to be followed by oral submissions which I heard on November 15. I rendered a judgment with written reasons to follow. These are the reasons.

9The Society called Julia Dunlop Thompson. She is a Child and Family Therapist at Vanier Children’s Services in London. It is a Children’s Mental Health Agency. She provided counselling to C.M. from January, 2015 until her last session with C.M. on November 4, 2016. The Society called Caitlin MacKinness. She is a child protection worker with the London CAS. She has met regularly with T.C., G.W. and C.M. since January, 2014. The Society called Lorna Clark. She is a supervised access worker with the Society. She supervised 17 assess visits of C.M. with L.M. between June, 2015 and October, 2015 in London and St. Catharines. The Society called Jordan Carriere. She is a child protection worker with the Society. She has had carriage of the file for the Society since November, 2014 until the present. She assisted Ms. Hertwig, counsel for the Society, throughout the trial.

10T.C., G.W. and R.C. testified.

11L.M. sought to call Dr. Dawn Good as an expert to critique the report of Dr. Amin. I refused to permit her to testify because L.M. had not served a report from Dr. Good as she was ordered to do in a prior interim ruling.

12L.M. called Lori Gill. She is a professional counsellor. She has seen L.M. in 62 sessions. She produced a report. L.M. sought to have her qualified as an expert. I declined to so qualify her because she did not meet the test of a properly qualified expert as set out in R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9 by reason of her own admission that she was an advocate for L.M.. Ms. Gill confirmed in her testimony that she only saw L.M. and C.M. together once, in August 2014 for approximately 2.5 hours when she observed their access visit at her office. She had not worked with the child protection workers with the CAS. Her evidence was not helpful.

13L.M. called Joan Gordon. She is a community support worker with the Bethlehem Housing Supportive Services in St. Catharines where L.M. lived from May, 2014 for about one year. She met with L.M. monthly while she lived there and still meets with her.

14L.M. herself testified. L.M. stated at the outset of the trial that she wished to have custody of Cassidy. In her evidence it was clear that what she sought was unsupervised access. This was the thrust of her carefully prepared written submissions and her oral submissions.

The Evidence

15The Society through Ms. Hertwig, the OCL through Ms. McKenzie, R.C. through Mr. Pearson, T.C. through Mr. Brooks who also spoke for G.W. all submitted that the court should make an order that the kin have custody of C.M. and L.M. have supervised access to C.M..

16C.M. has resided continuously with the kin for over five years. She has clearly bonded with them. I have heard evidence that she wishes to continue to live with them. I also heard evidence that she wishes to have a relationship with her mother. She is doing well in school.

17The witnesses all testified to the excellent relationship that C.M. has with the kin. Cassidy had serious respiratory problems requiring multiple medical interventions. The kin supervised these medical interventions. They provided C.M. with emotional support through what must have been a very difficult time for her. C.M. also has a good relationship with R.C..

18L.M.’s access to C.M. has been difficult. The Society and the London CAS have provided much support to L.M. for her to have satisfactory access to C.M.. Unsupervised access of L.M. to C.M. has not been successful. When L.M. has had unsupervised access to C.M. the child has returned to the kin distraught. As described by T.C. and G.W. she has meltdowns. She is often hostile to them as a result of what L.M. has said to her.

19Access has alternated between supervised and unsupervised. The Society at times arranged for C.M. to be brought from London to St. Catharines by volunteer drivers to have access with L.M.. This was unsatisfactory as C.M. was travelling for 2 ½ hours each way with a stranger. The last unsupervised access took place in March, 2016 at a motel paid for by the Society. C.M. reported an incident where L.M. had struck her with a coat. This report resulted from C.M. striking a classmate with a coat at her school. The Society took the position that future access would need to be supervised. L.M. rejected this. She did not have further access to C.M. until she finally agreed to a supervised visit on November 1, 2016 at the office of the London CAS.

20Dr. Amin produced a comprehensive report dated June 2, 2014. He conducted interviews and administered multiple tests to L.M.. He has a Ph. D. in clinical psychology. He has completed PCA’s at the rate of 70 per year since 1985. He has been qualified to testify in court as an expert on many occasions.

Regarding the testing results, Dr. Amin testified that:

• Ms. L.M. is very defensive and ignores reality, she sees what she wants to see;
• Ms. L.M. is distrustful of others and their feelings (including her children);
• Ms. L.M. seeks comfort from those who support her totally and conforms to guidelines these people have set;
• Ms. L.M. is denying problems that actually exist;
• He questioned Ms. L.M. regarding some of her responses to the test questions as they were not consistent with the history she gave him;
• Some of Ms. L.M.’s test results indicated she was being untruthful and purposely trying to misrepresent herself; and
• Most relationships are painful for Ms. L.M. and, regarding the parent/child relationship, she can react impulsively and abruptly, with no thought given to what they are doing, and act angrily.
• He testified that L.M. had an attachment disorder, a personality disorder and cognitive deficits.

He thought it important that L.M. have access to C.M. but recommended that it be supervised.

21L.M. has not produced a viable plan for her to have either unsupervised or supervised access to C.M.. She has been supported by the Ontario Disability Support Program (ODSP) for 11 years as a result of diagnoses of agoraphobia and bi-polar disorder. She disclosed for the first time when she testified that her ODSP will terminate this month. She plans to support herself by getting work cleaning houses. She indicated that she has no clients or contracts to do this. She spoke vaguely of working with V.H. who is the mother of J.H. who is the father of C.2. She did not call V.H. as a witness and presented no specific plans.

22The Society suggested supervised access in Brantford which is about half way between St. Catharines where L.M. lives and London where the kin and C.M. live. There would be a cost to this. This would result in the cost being borne by the kin plus the disruption in their lives in getting C.M. to Brantford. The kin are people of modest means. R.C. receives ODSP as does T.C.. G.W. builds tires at undoubtedly a modest wage. This proposal puts far too much responsibility on the kin in addition to being expensive for them.

23The evidence is that G.W. relates reasonably well with L.M. and he is prepared to work with L.M..

24L.M. had a relationship with W.D. who is a foster parent for C.1. There is a relationship between C.1 and C.M.. I heard evidence that both wish to pursue that relationship.

25There is a suggestion in Dr. Amins’s report that L.M. is of low intelligence. Dr. Amin produced a superb report. His evidence was excellent. He is a man of much experience and learning in these matters. However, on this point I must respectfully disagree with him. The written material that L.M. produced is coherent given her limited education although it has usually been unhelpful. Her oral presentation was also well done although unrealistic. She does have some deficits. I am of the opinion that she is highly intelligent. She has much to contribute to C.M. if she could learn to accept the guidance of highly competent people and to control herself. She needs to work with the dedicated CAS workers.

Analysis

26The options of the court set out in s. 65(1) and 57(1) of the Act are to return the child to L.M. from whose care the Society apprehended her, to make one of the orders contemplated by s. 57(1) of the Act all of which involve further supervision by the state or to make an order under s. 57.1 of the Act granting custody of Cassidy to the kin which shall deemed to be an order under the Children’s Law Reform Act.

27Relevant sections of the Act are as follows:

1. (1) The paramount purpose of this Act is to promote the best interests, protection and wellbeing of children.

(2) The additional purposes of this Act, so long as they are consistent with the best interests, protection and wellbeing of children, are:

2. To recognize that the least disruptive course of action that is available and is appropriate in a particular case to help a child should be considered.

3. To recognize that children's services should be provided in a manner that,

i. respects a child's need for continuity of care and for stable relationships within a family and cultural environment,

iv. includes the participation of a child, his or her parents and relatives and the members of the child's extended family and community, where appropriate.

(3) 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:

5. The importance for the child's development of a positive relationship with a parent and a secure place as a member of a family.

6. 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.

7. The importance of continuity in the child's care and the possible effect on the child of disruption of that continuity.

8. The child's views and wishes, if they can be reasonably ascertained.

In Catholic Children's Aid Society of Metropolitan Toronto v. C.M. 1994 83 (SCC), [1994] 2 S.C.R. 165 the Supreme Court of Canada in the judgment of Justice L’Heureux Dube stated the following:

37 The examination that must be undertaken on a status review is a two-fold examination. The first one is concerned with whether the child continues to be in need of protection and, as a consequence, requires a court order for his or her protection. The second is a consideration of the best interests of the child, an important and, in the final analysis, a determining element of the decision as to the need of protection.

28The kin are prepared to take on the enormous responsibility of accepting legal custody of C.M.. She has been in their care continuously for 5 ½ years. As long as she is being cared for by the kin it is my view that she does not need the protection of the state. When she is being cared for by the kin, she does not fall into any of the categories of the definitions of a child in need of protection set out in s. 37(2) of the Act.

29At the same time so far as possible she should have a relationship with her mother. She wants this and her mother wants a relationship with her. The fostering of that relationship, however, must not be permitted to jeopardize her placement with the kin.

30I must commend all the workers from both Children Aids Societies in this case who have worked so hard to promote a relationship between C.M. and L.M.. It is most unfortunate that L.M. often has been unable to work with them. I also commend counsel for the parties who conducted this case in a very responsible manner.

Result

31There will be an order as follows:

1. That the Child, C.M., born […], 2008, shall be placed in the legal custody of her paternal grandmother T.C. and paternal step-grandfather G.W., and that the order shall be deemed to be an order under s. 28 of the Children’s Law Reform Act.

2. Regarding access to the child C.M.:

(1) Reasonable access to the child by her father R.C. is to be arranged between him and T.C. and or G.W., having consideration of the child’s scheduled extra-curricular activities and school schedule. The location and level of supervision is within the discretion of Ms. T.C. and or Mr. G.W..

(2) Telephone access between Ms. L.M. and C.M. shall occur once a week, at a time arranged between Ms. L.M. and Mr. G.W.. Mr. G.W. will supervise all telephone contact via speakerphone to ensure that the content of discussion is appropriate and child-focused. Mr. G.W. will intervene as needed to either redirect the discussion or end the call should the content of discussion not be appropriate or child-focused. Ms. L.M. is to have a functioning phone to allow for telephone access.

(3) Ms. L.M. and C.M. shall have the opportunity to share written communication via Ms. T.C. and/or Mr. G.W., who shall ensure that the content of any written communication sent from Ms. L.M. is appropriate for C.M. prior to sharing with the child.

(4) Ms. L.M., and Ms. T.C. and/or Mr. G.W., shall provide the other with up to date contact information.

(5) Should any party choose to vary the existing access order, they shall pursue mediation or other alternative dispute resolution as may be available without cost through the Unified Family Court in St. Catharines or London before initiating a court proceeding. Ms. T.C. and/or Mr. G.W. shall provide Ms. L.M. at her request current information regarding C.M.’s health, wellbeing, education, report cards, photos and other like information. Ms. T.C. and Mr. G.W. to use their best efforts to facilitate contact between C.M. and her sister C.1.

(6) Ms. L.M. shall have supervised access to C.M. at the discretion of G.W. on terms including the location, sharing of expenses and frequency to be determined by him, such discretion not to be exercised unreasonably.

(7) Ms. T.C. and Mr. G.W. to use their best efforts to facilitate contact between C.M. and her sister C.1.

3. This order shall be deemed to be an order under s. 28 of the Children’s Law Reform Act.

4. There shall be no order as to costs.