CITATION: La Société de l’aide à l’enfance d’Ottawa v. L.K.M.B., 2016 ONSC 7429
COURT FILE NO.: FC-15-1211
DATE: 2016/11/29
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 P.Z.M.B. (d.o.b. […], 1999)
BETWEEN:
La Société de l’aide à l’enfance d’Ottawa
Applicant
– and –
L.K.M.B. - Mother
Respondent
Judith Hupé, for the Applicant
Suzanne Y. Côté, for the Respondent
HEARD: September 14-22, 2016
REASONS FOR JUDGMENT
R. Smith J.
Overview
[1] The Children’s Aid Society of Ottawa (the “Society”) seeks an order making the child, P.Z.M.B. (“P.B.”) a Crown Ward because it submits he is in need of protection as a result of his mother (“L.M.B.”) being only 15 years of age at the child’s birth, being unable to provide the necessary care to her child, there is a likely risk of harm to the child due to the mother’s habitual negligence in caring for him, her lack of parenting skills and her unstable place of residence. The Society also submits that, as the 2 year old child has now been in care for over 16 months, the timelines set out in the CFSA should be respected to provide this child with a permanent stable home.
[2] The mother submits that the Society has not proven that P.B. is in need of protection and that the least intrusive option would be to return the child to her care, subject to a suspension order, containing a condition that she reside with her father. In the alternative, she proposes a supervision order to the grandfather (“L.B.”) or in the further alternative, to grant custody of the child to the grandfather.
[3] Finally the mother submits as her last alternative, that the child should remain in the care and control of the Society for another six months to allow the mother to have more visits with the child and to develop a plan to reintegrate the child with her.
[4] The mother also submits that if the child is made a Crown Ward, then it would be in the child’s best interests to have visits with her and his grandfather.
[5] The issues to be decided are as follows:
(a) Is the child in need of protection?
(b) If the child is found to be in need of protection, is it in the child’s best interests to be made a Crown Ward or are there any less intrusive options?
(c) If the child is made a Crown Ward should the mother and grandfather be given the right to visit the child?
Factual Background
[6] The child, P.B. was born on […], 2014 and is now 2 years and 1 month old. The child’s mother, L.M.B. was 15 years of age at the time of his birth.
[7] L.M.B. was pregnant when she arrived in Canada from Gabon on August 7, 2014. The father of the child has been disqualified as a father and has had no involvement with the child as he continues to reside in Gabon.
[8] The child’s grandfather is L.B. He came to Canada in December 2006 and has been living and working in Canada for the past 10 years. He is currently employed as a chef at an African chicken restaurant in Ottawa.
[9] L.B. has five children. L.M.B. is his oldest child, and he describes her mother as being just a friend at the time. He has two other children. B.B. who is 14 years of age and F.B. who is 10 years of age. Their mother is M.B. He also has two other children named E.B. age 7 and S.B. age 6, whose mother is H.B. The last two young children were born in Canada. The other children were all born in Gabon.
[10] The father testified that he met H.B. sometime in May or June 2008 when he came to Ottawa but he separated from her in May or June 2014. They continue to see each other on a regular basis.
[11] When L.M.B., and her brother and sister, B.B. and F.B. arrived in Canada in August of 2014, they went to live with their father (the child’s grandfather) L.B. and his Canadian family. The grandfather got into a dispute with his Canadian spouse, H.B. He and his three recently arrived children were forced to leave the apartment they shared with H.B. and the two Canadian-born children. The grandfather moved with his three children into a shelter. They remained there from August until October, 2014.
[12] When the child was born, the grandfather and his three children were residing in a shelter and there was no clear plan to care for the newborn child P.B. and as a result, the mother went to St. Mary’s Home, although she was not in agreement with this plan. The grandfather had to work to support his family and could not stay home to offer support to the mother and her young baby. The grandfather didn’t understand the concerns of the Society and believed his 15 year old daughter was capable of caring for her child on her own.
[13] A Public Health nurse met the mother at the hospital and suggested she enroll in the Healthy Baby’s program and a parenting program. They also suggested she attend Jeunes Parents which provided her an opportunity to continue with her education and also the program provided childcare while she was attending school. They suggested that the mother first go to St. Mary’s Home, a residence for young mothers, to assist her to acquire parenting skills to meet the child’s needs.
[14] When L.M.B.’s child was born, the Society offered assistance and arranged for the mother to go to St. Mary’s Home to provide her with some basic parenting skills. St. Mary’s Home provides parenting courses, children’s programs, personal growth, and counselling on independent living for young mothers between 14 and 25 years of age.
[15] At St. Mary’s, the mother had difficulty in responding to the child’s needs at night as she sometimes slept through when the baby was crying. The mother was given instructions about the rules of safe sleeping at the Centre, she refused to follow the rule of placing her child back in his crib after a night time feeding. She would also nurse the child and fall back to sleep with the child beside her in bed.
[16] While she was at St. Mary’s Home, the child developed thrush. The mother obtained a prescription but it took her two weeks to get the prescription filled. The grandfather had refused to give the medications to the child and had insisted that they follow an African remedy. In addition the child was not vaccinated as required and the thrush infection was not treated for two weeks.
[17] St. Mary’s staff suspected that the mother may have a learning disability or had cognitive deficits because she appeared unable to understand how to follow the secure sleeping protocol. St. Mary’s offered her the opportunity to remain longer than the thirty day period. The Director believed she would have benefited from the full eight month program even though their program is usually three to four months long. She was a very deep sleeper and tended not to wake up when the baby was crying at night, she put the child on her stomach instead of on her back as the protocol required and she continued to do so each day. The concerns were so great that they had her sign a written contract that if she broke the rules one more time then she would be forced to leave.
[18] The Director described the mother as always cooperative, never rude, and to the extent that she thought that perhaps she did not understand the instructions. She was always pleasant and polite to the staff. The mother knew how to hold the child and seemed interested in her child, and they believe she had previous experience in holding young children. They were concerned that she had a flat affect, and the mother was very upset when her younger sister was sent to France and afterwards she seemed to have even less energy. There were concerns about her lack of attachment to the child and that she was not responding to the emotional cues of her child. She didn’t appear to understand what to do when her child awoke. For example, it would take her three minutes to put the child to her breast, and the mother was very slow to respond to the child’s crying.
[19] The director of St. Mary’s Home described the mother as being very laid back and did not seem to understand the importance of her child’s needs. The mother would be aware that her child was hungry but wouldn’t go to get the bottles. She did not prepare the bottles in advance, did not have the bottles pre-sterilized for use. She did not dress the child adequately and left the child only in her diapers, and would not put another layer of clothing on the child if she did not think the child needed it. This occurred in the month of November which has cool weather. The staff had to go and get a blanket for the child. The mother never developed any childcare routines. The first step is meeting the child’s basic care and the second step is developing routines. The mother did not manage either of these steps.
[20] While at St. Mary’s Home a letter had to be sent to her stating that if she did not follow the safe sleeping protocol that she would be asked to leave the residence. The mother also missed four parenting classes while at St. Mary’s. She did not appear to have any idea how to care for a child and did not actively participate in the child parenting programs.
[21] The grandfather decided to remove the mother and child from the St. Mary’s Home stating that he did not believe that she needed any assistance with child rearing and that she had sufficient abilities to provide the necessary care to her child.
[22] The social worker testified that the grandfather did not cooperate with her plan to place the mother and child at St. Mary’s. He removed the mother and child after 30 days even though the director felt the mother needed several more months in order to acquire the necessary parenting skills. The grandfather was also hostile to having a public nurse attend at his home to offer further assistance to the mother. In fact, he refused to allow the public nurse to attend at his residence, as he felt there was no need for their services because he felt that his daughter was sufficiently capable to care and provide the necessary care for her child. The grandfather often threatened to take the mother and the child back to Gabon.
[23] The grandfather initially refused to register the mother with the Jeunes Parents program, but then agreed when he received notice that the mother was accepted. The mother started at Jeunes Parents in December of 2014, however she was often late. A social worker had to assist her by going with her on the bus on two occasions. The mother was also often late in attending to pick up her child at the daycare. The mother’s pace of learning was much slower than the vast majority of the clients at the centre. She also appeared depressed.
[24] Shortly after the mother left St. Mary’s, an unannounced visit by the Public Health nurse found the mother and her baby and her younger sister were at their new home without any supervision from the grandfather.
[25] The grandfather was not supportive and said it was normal for the fifteen year-old mother to be caring for a young baby by herself and didn’t see any need for him or anyone else to provide her with any assistance. The mother was very sad when her father removed her cellphone, because she could no longer maintain contact with her sister B.B, who had been sent to France, and she could no longer maintain contact with her grandmother in Gabon.
[26] The grandfather agreed to a follow up with a public health nurse, but did not want anyone to come into his home when he was not present. He did not trust the CAS and believed they were only there to remove his grandchildren.
[27] Ms. Morissette testified that the Jeunes Parents program provides individual parenting coaching, counselling, individual therapy, and allows young parents to attend school on a full-time basis. The parent is required to attend weekly programs to assist them with their parenting skills, their social aspects, as well as providing subsidized daycare care for the child while the parent is at school.
[28] The mother was involved in the Jeunes Parent program from November, 2014 until May of 2015, when she left the program. The mother frequently arrived late for the programs, and often missed the mandatory counselling programs. The mother was also absent on many occasions. There were many absences in the month of February of 2015 and in March when she finally withdrew from the program.
[29] While at the Jeunes Parent, the mother was not rude to the staff. However she had a problem preparing the bottles for the child. She insisted on putting cereal in the milk bottles, which was prohibited, as it is not recommended to feed solids to a child until they reach six months of age. The grandfather did not agree with this and so the mother continued to put cereal in the child’s milk bottles.
[30] The child often came dressed in clothing that was too small and not adequate for the weather. In addition the mother left the child alone without supervision at the daycare on one occasion. There were also a number of incidents where the grandfather and the mother were not truthful with the staff.
[31] The staff questioned her comprehension and whether she had difficulty integrating into the new school system. The mother did not appear to have a good attachment with her child. She was late to pick up her child on one occasion before Christmas where returned at 6:45 p.m. when the daycare centre closed at 5:30 p.m. The mother had not arranged any alternative plan to pick up the child at the latest by 5:30 p.m. The staff were also concerned that the mother appeared at school very well dressed, wearing expensive jewellery and items that her father had not purchased for her. The items were gifts from a young man that they believe was involved with street gangs and human trafficking.
[32] In February in 2015, she was absent for 16.5 days and present for 2.5 days of school. In March she was present for three days. Ms. Laflèche, a supervisor of the child care at Jeunes Parents, confirmed the many absences. The mother did not respect their rules regarding food, particularly putting cereal in the milk bottles before the child reached six months of age. The child was not always clean, and also had a bad odour. The mother did not attend to the medical needs of the child. There was an infection of his penis, and his mother did not get the cream right away. The mother also lacked parenting abilities as she did not seem to have any idea about of what to do with her child. Ms. Laflèche believed the child needed stimulation which he was not receiving from his mother.
[33] The public health nurse, Hélène Gaunn, testified that the mother was receptive to her advice if the grandfather was not present. The grandfather told her he did not want the CAS involved, and the mother missed four scheduled meetings without phoning. The public health nurse was not advised when the mother left the hospital and she was unable to contact the grandfather and called at least eight times to try to arrange a meeting. She believed that the grandfather thought that if he could get rid of her, he could get rid of the CAS’s involvement in their lives.
[34] As a result of the mother’s complaint, another public health nurse, Nicole Olive, was assigned to the family. She visited the child while she was at St. Mary’s Home and thereafter attended a number of times at the Prince Edward Street address. In March of 2015, the client refused to continue with their services even though in her opinion there was still work to be done with the young mother. She had scheduled fifteen to sixteen visits, four of which the mother did not attend. It was easier to meet at the beginning when she was at St. Mary’s Home. She tried to meet with the grandfather and the mother but the grandfather was never present. She managed to meet with the grandfather in January or February on one occasion.
[35] The grandfather never called when they were unable to be present for the scheduled visits. The mother told her several times that she wanted to return to Gabon, and that she did not have a cellphone, or access to internet. She felt isolated, and she had a lot of conflicts with her her father (the grandfather). When she met with the mother and grandfather, the grandfather answered most of the questions. The file was finally closed on March 29, 2014, as the grandfather and mother had not attended many meetings without phoning to cancel.
[36] Ms. Désaulnier is a social worker, who was contacted by the school on October 7, 2015, because F.B. had complained to his teacher about being beaten by his father (P.B.’s grandfather). A meeting was arranged for October 13 at their home. The step-mother was present although the parties were supposedly separated. She saw F.B. in the kitchen looking frightened and the younger children, P. and E.B. were acting normally. The grandfather initially allowed her to meet with F.B. privately, where he told her that he was afraid of his father. He complained that his father had “boxed” his head, and said that his father liked to box. E.B. told her that F.B. was poorly behaved member in the family.
[37] The grandfather was angry that the school had contacted the CAS after F.B.”s complaint. He contacted the school and yelled at them stating that F.B. was lying. He said that he only disciplined the child because he wanted to wear clothing that was too small. Shortly thereafter, the father returned F.B. to Gabon, and the CAS was unable to conduct any further investigation with the family and were unable to complete their investigation.
[38] The child’s foster mother, M.G. testified about her observations of P.B. The child has been in her care since June 15, 2015 and was two years of age on […], 2016. When the child first came into her care, he did not make any sounds. He was very slow. He was not talking, or playing, and just sat there very quietly. She did not notice any problems with the child’s health. Now, he is very much changed. He laughs. He’s affectionate, and he loves to play. He has started speaking and is a very joyful child who likes interacting with people. He adores her children and she has treated him as if he was her child. She describes him as doing very well but that he may need some speech therapy.
[39] She has taken the child to visits with the mother and occasionally to the grandfather. She has done so one to two times a week. There have been a lot of cancellations as the mother has not shown up for many of her access visits. When this occurs, the child is disappointed.
[40] The child does not talk about his mother. When the child comes back from a visit, he is happy and smiles. She has never met the mother but did initially have a communication book with the mother, which was stopped because of the mother’s constant negative comments. In her view, the child was able to attach and has shown no detachments from her family. She was prepared assist the child to transition to a new home..
[41] Ms. Cormier is a social worker who evaluated possible kinship placements. She evaluated a possible kinship placement with the grandfather, which was referred to her on July 15, 2016. She met with the grandfather and the children as well as with H.B. the mother of his two youngest children. Three child protection files have been opened involving the father, mother, and H.B. The grandfather never provided proof of his income and his application was initially put aside because the father went to Gabon.
[42] She testified that she had sufficient information to determine that she was unable to recommend a placement with the grandfather. The grandfather had been involved in three investigations by the CAS. One involving H.B. where the grandfather was investigated for alleged conjugal violence against her. In the second, F.B. was returned to Gabon, without notice to the Society, before the investigation into F.B.’s allegations of being struck by his father could be completed. She was concerned about the lack of cooperation by the mother and the grandfather with the public health nurse and the CAS with regard to the child; fourthly, the grandfather made repeated threats to send the mother back to Gabon with the child.
[43] F.B. had complained that his father hit him on the head and in the face, and kicked him on the legs. She was concerned with the grandfather’s lack of transparency because the mother had said different things which were not accurate. The worker was also uncertain as to whether the grandfather actually resided at K[…] Street, as he spent most of his time living on R[…] Street where H.B. lives. H.B. worked night-shifts, and the father mostly slept at the R[…] Street address, and worked during the day. He was generally only at the K[…] Street address on weekends.
[44] She also was concerned that the grandfather had no concerns about the child’s mother and believed she did not require training or supervision as she had sufficient maternal instincts to properly care for the young child.
[45] The grandfather has some positive attributes, namely that he has no criminal record, no alcohol or drug problems, and he is employed. His apartment on K[…] Street has the required facilities however the worker did not believe that he was living at K[…] Street but was only there on the weekends. The grandfather also had an unstable relationship with the mother, as she had left her home previously. The grandfather maintained a very strong patriarchal household. The last time she spoke with the grandfather he refused to meet with her and for this reason she sent him a letter stating that he was not an acceptable kin placement and he has never asked to be re-evaluated.
[46] Ms. Régimbald works for the Society supervising visits and providing some assistance to the parents during visits. She supervised visits from January 6, 2015 until the present. The grandfather attended four visits during one month in the fall of 2015. She has not observed any visits with the grandfather since October 21, 2015. Visits between the grandfather and the child were appropriate. The grandfather has made no further requests for additional visits since that time. During the visits with the grandfather, there was not much reaction from the child. The child did not make any sound. The child stayed serious and observed and did not go towards him when he came to the visits. The grandfather tried to interact with the child, but the child did not react, and the child did not smile.
[47] The mother was offered seventy four visits since the apprehension. At the beginning, the visits were scheduled for one hour, two visits a week. They were reduced to one visit per week due to the mother’s frequent non-attendance and failing to call to advise that she would not be present for the visits.
[48] In May of 2016, the visits were increased to two visits per week at the request of the mother’s counsel.
[49] The mother missed a lot of visits. Namely, she was offered seventy-four visits but she only attended forty-four visits, and missed approximately thirty visits from September, 2015 to present. In addition, she was five to forty-five minutes late on six occasions.
[50] As a result of her frequent non-attendances and not calling, she was required to advise thirty minutes to an hour before that she would be attending.
[51] From June 1, 2015 to September 29, 2015 the mother missed eight visits, and on September 1, 2015 and September 6, 2015 the mother did not call to advise she would not be attending. On September 8, 2015 the mother called and said she was sick. In July of 2016, she attended two of the four visits. On July 12, she said she had an allergic contagious virus, which is an unlikely excuse as allergies are not caused by a virus.
[52] During the visits, the mother provided some verbal stimulation, and showed some affection to the child. The child did not smile at her and did not appear joyful. The mother appeared distant to the child, did not act appropriate to the child, and had little direct contact with the child. She also occasionally attended with inappropriate foods.
[53] During the visits, the child never ran to his mother, did not smile, did not react or go to her, there was no reaction after she left, and little reaction to the stimulation. The child remained serious. Ms. Lalièvre supervised five visits from August 15 to the present. She also observed no facial expression from the child when the mother arrived. When the mother kissed the child it was not reciprocated by the child, with no smile or kiss. The mother spent a lot of time taking photos but not spending time interacting with the child. The child hit her on the face a couple of times and the mother did not correct this behaviour. The mother did not play with him, but rather they looked at her tablet together.
[54] Ms. Clément is an adoption worker with CAS, and stated that she evaluated Mr. Wamanga, who was proposed by the African League as a possible placement. She received his application on June 30, 2016 and contacted him on July 18, 2016. In August, he left for Rwanda. On August 8, she called again and asked if they were still interested, and was advised that he would not be returning until August 22, 2016 because his mother was sick. Mr. Wamanga never called back to advise if he was still interested in proposing an adoption plan or any other plan. As a result, she has not been able to meet with him or observe or evaluate their home, and he did not return her calls.
[55] In her experience, interested potential adoptive parents will return her phone calls, which did not occur with Mr. Wamanga. As of September 1, 2016 there are 24 francophone families approved for adoption. Three of these francophone families are of African descent. Two African families reside in Ottawa.
[56] She advised that if another plan was presented to her, whether by Mr. Wamanga or some other person that she would consider it.
The mother’s position.
[57] The mother testified that she views B.B. and F.B. as her brother and sister even though they have different mothers. She testified that she has completed the equivalent of grade 10 in Canada by attending school in Gabon. She testified that in her culture, time was not an important factor as long as you just arrived. She testified that she enjoyed a good childhood and was cared for by her paternal grandmother, and that she had never left her village before coming to Canada. She confirmed that they lived for approximately a month at R[…] Street, at her Aunt H.B.’s apartment, but due to disagreements between them they left after approximately a month. She believed that H.B. gave more privileges to her children rather than the three children brought to Canada from Gabon by her father
[58] She testified that in Gabon it was different because no medical visits were required for an expectant during pregnancy. She testified that she had breast fed for three to four months, and that while she has not cared for a baby, she saw and knew what to do to care for a child. She testified that the grandfather (her father) worked from 9:00 to 6:00, Monday to Friday, but did not work on the weekends. She testified that she tried her best to follow the secure sleeping rules while she was at St. Mary’s Home. She agreed that she stopped attending school at Jeunes Parents on February 13, 2015, because she felt there were too many things for her to do.
[59] She testified that she stopped meeting with the public health nurse because she asked too many questions about her private life and her relationship with her father. She agreed that she left her father’s house in June of 2015, because of a dispute with her father. She believed that the involvement with the CAS had been too much for her father. Her father reported her missing to the police at that time, and once she was located at the YMCA in Ottawa, this led to the child being apprehended.
[60] She agreed that she did not tell anyone that she was leaving her father’s residence and moving to live in the YMCA. She did not advise her Children’s Aid worker as to where she was going to be living with the child.
[61] After she left and the child was apprehended, she moved to a shelter and did not return to live in her father’s home. She denied that she had ever shaken the baby as was reported to the CAS by her friend. The mother denied that she had spent two weeks at her friend’s place. She said she only had a short visit at her friend’s place. She did not advise her father that she was moving out and did not tell him where she would be living because she knew her father would not accept her decision. She testified that in August, 2015 she spoke with her father from the shelter, and asked him to pardon her. They agreed to mediation through the African League, and they agreed to work together to resolve their differences. She agrees that her child used to smile at her, but no longer smiles and is very serious and not attached to her.
[62] She agreed that she went through S[…] High School to attend her eleventh grade but she could not follow her schedule. She said it was too much to both attend her school and to attend visits with her child. The mother testified that she did not want to return to Jeunes Parents. Her father made the arrangements, not her, and she agreed that her male friend gave her expensive gifts and they were not from her father.
[63] The mother’s plan is to live with her father at the Prince Edward residence and care for the child with her father’s assistance. She was hopeful that her grandmother would come from Gabon to Canada to assist them with caring for the child, but she was not sure about this.
[64] The grandfather’s plan is for the mother to attend and finish school, and for the child to go to daycare.
[65] She testified that the African League would assist her with her parenting, and help remove her from bad influences. They offered her employment this summer and helped with the reconciliation between her and her father. The mother agreed that she was still considering returning to Gabon if things did not go well with her father.
[66] The mother agreed that she has not attended any parenting programs, she has missed four of the twelve meetings in the parenting course that she was registered in, and she is not registered in any parenting program presently. She is not currently attending school and is not working. She is also not attending any counselling at the present time.
[67] She agreed that M., who she has known since she was 17, gave her a credit card, presents and gifts. She does not believe she is at any risk and is aware that he has been involved with human trafficking. She told M. that she could not accept any more gifts because the Society believes she was being groomed for prostitution.
[68] She agreed that during the day her father would not be aware of where she was or what she was doing when he was at work. She agreed that the plan that she is presenting is the same plan that was in place when the child was apprehended, namely she was living with her father who was working and spending time at the R[…] Street address where his other two children and former partner H.B. reside.
[69] The grandfather testified that he was born in Gabon and is thirty-eight years of age. In his view, his fifteen year old daughter did not require any parenting assistance and that as a mother she was capable to care for her baby. He testified that he was supported by the African League and by the Christian community. He agreed that when the mother went to St. Mary’s he wanted to be present for any discussions. He agreed that he did not fill the prescription for the child’s medication when the child was diagnosed with a thrush infection, because they did not wish to follow the doctor’s advice but rather to follow an African remedy using orange juice and salt, used by his mother in Africa.
[70] He also decided that the baby should be allowed to have cereal in his bottle before reaching six months. He decided that solid food was appropriate rather than following the recommendations that the child only start on solids at age six months despite the policy at Jeunes Parents.
[71] He testified that he had applied for three daycares for the child. He agreed that he often stays at H.B.’s apartment. She works at night while he looks after the other two children, and he works during the day.
[72] The grandfather has no concerns about leaving the mother alone with the child and has no worries about this and says the mother has adequate skills to care for the child. He did not believe she needs any assistance from St. Mary’s. This was imposed on them. The father agreed that his last visit with the child was eleven months ago and that he never asked for any further visits, and has not worked on re-establishing attachment with his grandchild in the last eleven months.
[73] He said that he applied for immigration status for his mother to come to Canada but he was not aware when this would occur. He denied F.B.’s allegations to his school teacher that he had hit him. He agreed he threatened to remove F.B. if the allegations continued, and that he did so at the end of October, 2015. He returned F.B. to Gabon, before the CAS could complete its investigation and complete an evaluation of him as a possible kin placement. He denied receiving a letter dated December 11, 2015, stating that he was not approved as a kinship placement for the child. He testified that he was only advised by telephone about the contents of the letter. I accept the evidence of the CAS worker that the letter was sent to the grandfather.
[74] The grandfather denied ever removing the phone service from his daughter and stated that the telephone at his home always worked.
[75] In 2014 the grandfather also stated that he planned to have his mother come over to assist him with the care of his children, but she has not obtained a Visa as of this date.
[76] The grandfather testified that neither he nor his daughter needs any help or assistance from anyone to care for the child, and if he needed any assistance he would be able to obtain help from the African League. He testified that the allegation that the child’s mother did not get up when the child was crying at night was false because he was advised by the mother that it was false.
Issue #1: Is the child, P. B., in need of protection.
[77] The criteria to find a child in need of protection are set out under Section 37(2) of the Child and Family Services Act, R.S.O. 1990, c. C. 11, as amended (the “CFSA”). The Children’s Aid Society submits that the child is in need of protection for the reasons set out in Sections 37(2)(i), (2)(b), and (2)(g) of the CFSA.
[78] I accept the evidence of the CAS workers, the Public Health nurses and the employees at Jeunes Parent who testified at this trial, as well as the evidence of Ms. Beatch from St. Mary’s Home. They gave credible important evidence which was not affected by cross-examination other than on some minor details. Their evidence was not really contested by the mother or the grandfather.
[79] The grandfather contests Mrs. Beatch’s evidence and disputes that the mother had difficulty getting up at night when the child was crying and also had difficulty following the secure sleeping protocol, where the child was to be fed and then returned to his crib. I accept the evidence of Ms. Beatch and reject the evidence of the grandfather as he was not present and does not have any personal knowledge. He only relied on the mother allegedly telling him that this was false but the mother did not contest this evidence at trial.
[80] As a result, I accept the evidence as summarized by workers and witnesses for the Society. Given my acceptance of the evidence of the witnesses called by the Society, I find that the child P.B is in need of protection based on section 37 (2)(a), (2)(b), and (2)(g) of the CFSA for the following reasons:
(a) The mother was only fifteen years of age when she gave birth to a child that was not desired or planned;
(b) The mother had not completed any parenting course as she attended only approximately a third of the courses in which she registered;
(c) the mother is not working or attending school, and the grandfather refused the assistance of the public health nurse on the mother’s behalf;
(d) The grandfather demands strict obedience from the mother, and he has a very strong patriarchal attitude. He has prevented the mother from obtaining parenting assistance that might have allowed her to develop the skills to properly care for her child. The grandfather’s strong belief that the mother of any child was naturally adequately equipped to parent a child without any assistance, resulted in him terminating the mother’s stay at St. Mary’s Home when several additional months of assistance were required to assist her to acquire adequate parenting skills. He took this step after he was informed that the young mother was having difficulty properly caring for the child, namely not getting up at night to feed the child and a failing to follow the safe sleeping practices of placing the child back in his crib and placing the child on his back.
(e) The grandfather also deciding to overrule the medical advice that had been received and did not to treat the child’s thrush infection with medication that had been prescribed, instead choosing to rely on a remedy using orange juice and salt. His also refused to allow the public health nurses to assist the mother by refusing to allow them to meet with the mother and child in his absence at their home; he failed to proceed further with his application for a kinship placement with him after he was advised that his application had been refused; he failed to cooperate with the Children’s Aid Society when F.B. made allegations of being struck (“boxed”) by his father and sent him back to Gabon without allowing the Society to complete their investigation; he insisted on interfering with the mother’s preparation of the child’s milk bottle by insisting on adding cereal to the bottled milk at the age of two months when the recommendations at the daycare were to only commence using solids at six months. As a result of the grandfather’s decisions, which he demanded that she follow, the mother had difficulties at the daycare centre because she arrived with improperly prepared milk bottles which contained a solid food, namely cereal, which was prohibited. The grandfather also influenced and caused the mother to refuse to follow the recommended medical practice.
(f) The grandfather was unable to provide any supervision to the mother at the K[…] Street address while he was at work during the days, and on many of the nights he was at the R[…] Street apartment; he also deprived her of any support from the public health nurses while living at this address on her own. The grandfather returned the mother’s sister, B.B., to France and sent F.B. back to Gabon, which left the mother feeling alone and isolated as a result of the combined effect.
(g) The mother displayed a pattern of neglect in caring for, providing for and protecting the child, for the same reasons as set forth above albeit influenced by the grandfather, who demanded that she follow his uninformed advice on the care and parenting of a young child.
[81] I find that there is also a risk that the child is likely to suffer physical harm inflicted by the mother and the grandfather, resulting from their failure to adequately care for, provide or supervise, as they displayed a pattern of neglect in caring for, providing for, and supervising the child as outlined above and for the following reasons:
(a) The mother has displayed a lack of interest in pursuing parenting courses, both by failing to attend parenting classes while at St. Mary’s Home, again failing to follow parenting classes when she was at Jeunes Parents, and finally by only attending four of the eleven classes in the parenting course;
(b) The mother is very young and inexperienced with child rearing, and in addition has failed to show any interest in following parenting classes. She is not currently enrolled in any parenting classes and has no plans to enroll in any parenting classes. In addition, she has not taken any parental counselling and she has followed her father’s bad advice and refused the assistance offered by the public health nurses.
(c) I find that by refusing to take the reasonable steps offered to her to acquire necessary parenting skills and following the grandfather’s bad advice, she, as a young woman with no parenting experience, has demonstrated a pattern of neglect in caring for her child together with the grandfather who has failed to provide adequate supervision for the child, leaving the young mother alone with a young baby without any assistance or supervision.
(d) the evidence from the visits shows that the child is not attached to her, the child does not run to her, does not smile at her, does not interact with her, and she spends most of her visits looking at a tablet with the child instead of interacting with the child;
(e) the mother has missed approximately a third of her access visits without calling to explain and cancel the visits while this child has been in the care of the Society, for approximately sixteen months. Her conduct shows a high degree of disregard to the best interests of her child;
(f) The grandfather has shown the same neglect to the best interests of the child by only attending four supervised visits in the sixteen months, and refusing to have any visits with the child in the last eleven months. His conduct demonstrates a pattern of neglect in caring for or protecting the child.
[82] I am also satisfied that there is a risk that the child is likely to suffer emotional harm resulting from the actions and the pattern of neglect on the part of the mother and the child’s grandfather for the reasons given above and for the following reasons:
(a) The mother has failed to attend many of the access visits while the child was in care;
(b) The child has been in care for sixteen months awaiting this trial;
(c) the mother has failed to take any parenting courses, engage any counselling;
(d) the mother has failed to follow the rules at the daycare, introducing solids before the time recommended for the age of the child;
(e) the mother has failed to treat infections with the appropriate medication;
(f) there is a lack of any attachment between the child and the mother; and
(g) the mother was unable to get up at night to feed a crying child on a consistent basis.
[83] All of these factors lead me to conclude that there is a risk that the child is likely to suffer emotional harm if left in the care of the mother or in the care of his grandfather.
[84] For the above reasons, I find that the child P.B. is in need of protection.
Options
1- Are there any less intrusive options other than making the child a Crown Ward?
Custody to the Grandfather
[85] I will deal with this option first as I find that it would not be in the child’s best interest to grant a custody order to the grandfather for the following reasons:
(a) The grandfather has been found unacceptable for a kinship placement by the Society;
(b) The grandfather has not visited the child for the past eleven months and has only visited four times while the child has been in care for the past sixteen months;
(c) The grandfather had an unresolved Children’s Aid complaint involving his son F.B., where he decided to return him to Gabon without notice to the CAS. One of the effects was to prevent the Society from completing its evaluation of this complaint of physical abuse. Also two allegations of assault were made to police by his former spouse, H.B. one of which resulted in criminal charges.
(d) The grandfather has exercised his power over the mother to direct her to refuse to get the proper parenting assistance from St. Mary’s and removed her from that program prematurely.
(e) He has insisted that the mother follow medical remedies for infections suggested by him instead of following medical advice.
(f) He has insisted on following his view that solid cereals should be introduced to a baby at the age of two months, instead of the recommended age of six months.
(g) He believes that a fifteen year-old mother was quite capable of caring for a baby on her own without supervision, and he refused to allow the public health nurses to provide assistance to his daughter with the child’s parenting, care, and medical needs.
(h) Finally, he has been very uncooperative with the Children’s Aid Society, Jeunes Parents, St. Mary’s, and the public health nurses, all of which have been working to try and ensure that the best interests of the child were met.
(i) The report prepared dated November 25, 2015, by Parise Cormier at Tab 1, recommended against placing the child in the care of the grandfather and I agree with her conclusion
Supervision Order to the Mother, Subject to Conditions
[86] One of the possible options is that the child be returned to the mother on a supervision order, a condition of which would be that she reside with the grandfather at the K[…] Street address.
[87] I find that this is not an option that would be in the child’s best interest or adequately protect the child from the risks of harm identified above for the reasons set forth above and for the following reasons:
(a) Firstly, the condition would be ineffective because the grandfather does not believe the mother needs any supervision.
(b) The grandfather works every day from 9:00 a.m. to 6:00 p.m. and spends most weeknights at the R[…] Street apartment with his two younger children, and as a result will not provide any supervision or assistance to the mother.
(c) The grandfather has not been cooperative and does not believe that any supervision is required and has refused any assistance on the mother’s behalf.
(d) The mother who has not been able to adequately parent the child would effectively be without supervision. The mother has let the statutory timelines pass without taking any parenting courses, has missed many visits and has failed to form an attachment with her child during the past 16 months.
[88] I find that the mother has not presented a plan of care that would adequately protect the child and meet the child’s best interests because:
(a) She has not completed any parenting courses and is an inexperienced very young mother.
(b) She did not cooperate with the Jeunes Parents daycare program by providing milk containing solids to a 2 month old baby against the specific advice of the daycare. She was often late on returning and did not comply with the program, and was finally asked to leave. Her conduct showed disregard for the needs and the best interests of the child.
(c) She has missed twenty-five of the seventy-four access visits that were offered to her, and she often failed to call to advise of her non-attendance, which disappointed the child and demonstrated an emotionally uncaring attitude to the child.
Supervision Order to the Grandfather
[89] I am not prepared to make a supervision order to the grandfather subject to conditions for the same reasons as I gave for refusing to grant a supervision order to the mother and for refusing to grant custody of the child to the grandfather.
Extending the Time Limits
[90] The child has now been in the care of the Society for over sixteen months. The maximum time limit for a child to be in the care is twelve months when they are under three years of age and then increased to eighteen months if under six years of age. In this case, the child was apprehended when he was eight months of age, and has been in care for the past sixteen months.
[91] The Court is not permitted to extend the time limits beyond eighteen months for a child less than two years of age. The child has been in care for over sixteen months and that means that the maximum remaining time for the child to remain in care is about a month. There is not a sufficient length of time to allow any material change in the situation to warrant an extension of time in which the child would remain in the care and custody of the Society. There is no evidence that the mother has taken any steps that would allow her to acquire the necessary parenting skills to properly care for the child in the near future.
Is an Order of Crown Wardship in the Best Interest of the Child?
[92] Section 37(3) of the Child and Family Services Act sets out the factors to be considered when making an order and determining the best interests of a child. In this case, the child’s physical, mental, and emotional needs have not been met by the mother while in her care. In this case the mother and the grandfather have had a strained relationship, as the mother left her father’s residence without notice to him or without advising him of her location. The grandfather called the police and made a missing person’s report for the mother. The grandfather and the mother had no contact with each other and the mother went to live in a shelter from June to August of 2014.
[93] The mother and grandfather, who are acting together, have not met the child’s physical or emotional needs as evidenced by their conduct and in fact this has continued while the child has been in care, because the grandfather has not visited the child for the past eleven months, and the mother has missed twenty-five of the seventy-four access visits offered to her while the child has been in care.
[94] I am satisfied that the child’s physical, mental, and emotional development would not be met by returning the child to the care of the mother or by having the mother supervised by the grandfather or any of the options proposed by the respondents due to their neglect and negligent conduct towards the care of the child as exhibited while in their care and subsequently after, by failing to visit the child or take any further parenting programs, counselling, or any steps to acquire the minimum required parenting skills.
[95] The child’s cultural background may be met as there are two possible French-speaking African families that are approved for adoption. The importance for the child to have a permanent opportunity to develop in a positive relationship with a parent, in a secure place, as a member of a family, would be achieved by making the child a Crown Ward and placing him with a family.
[96] The mother and the grandfather have not developed a positive relationship with the child as the mother has not attended many visits or taken steps to acquire the minimum required parenting skills and the grandfather has not visited the child for eleven months. The same applies to the relationships and emotional ties to a parent, as the child does not exhibit any emotional response to seeing the mother but is able to attach and displays emotion, laughter, while in the care of his foster parents.
[97] The continuity in the child’s life would also be assured by allowing him to be adopted into a stable family, and that has not been possible with the sixteen months that the child has been in care. His attachment to his mother and grandfather is minimal. I find that the merits of the plan of care proposed by the Society greatly exceed the merits of the child being returned to the mother made or under a supervision order to the mother or to the grandfather, or granting a custody order to the grandfather.
Further Delay
[98] I find that the best interests of the child would be met by having this matter decided at this time, as the mother has had sixteen months with which to take some positive steps plus the initial eight months that the child was with her and has failed to do so. Further delaying establishment of a stable home and secure place in a family with emotional ties to a parent, is not in the child’s best interest. The child should be allowed to develop close emotional ties to a parent or parents and have a secure place as a member of a family as soon as possible.
Disposition
[99] As a result, I find that it is in the child’s best interest that he be made a Crown Ward and placed for adoption and for the reasons given above, as I find that there are no less intrusive options available that are in the child’s best interest.
Should the mother or grandfather be given the access to the child who is now a Crown Ward?
[100] Section 59(2.1)(a)of the CFSA reads as follows:
“A court shall not make or vary an access order made under section 58 with respect to a Crown Ward unless the court is satisfied that,
(a) the relationship between the person and the child is beneficial and meaningful to the child; and
(b) the ordered access will not impair the child’s future opportunities for adoption.”
[101] I am not satisfied that there is evidence that access to either the grandfather or the mother would be beneficial and meaningful to the child because:
(a) The child has not formed a strong attachment with the mother or the grandfather. The child does not smile or go to the grandfather or to the mother when she attends for visits. The mother has missed twenty-five of the seventy-four access visits offered to her. The grandfather has not seen the child in eleven months, and does not have a meaningful relationship or any relationship that is beneficial to the child. In fact, the grandfather’s actions by not following the recommendations of the social workers, the daycare workers, and the workers at St. Mary’s Home has in fact been harmful for the well-being and care of the child.
[102] The case of Children and Family Services for York Region v. J.E., [2008] O.J. 3948 at paragraph 175 the court stated:
“On the other hand, as noted by Ms. Sheehan, the degree of attachment demonstrated by P. towards Mrs. E. is limited and, as noted by Mrs. W., P. is easily consoled when visits are cancelled. Further, simply enjoying visits and having an emotional bond with the visitor are not sufficiently significant to be meaningful according to the Divisional Court in J.C. cited above.”
[103] In this case, I find this is exactly the situation here that there is very limited attachment demonstrated by the child towards the mother and no degree of attachment demonstrated by the child to the grandfather. In fact, the child does not have to be consoled when visits are cancelled, and shows no emotional reaction during visits, no smiling, and the child remains passive and does not go to the mother or to the grandfather. As a result, I find that the evidence demonstrates that their access will not be beneficial or meaningful to the child.
Kinship Placement with Mr. Wamanga
[104] The mother has proposed a kinship placement with a member of the African League. Mr. Wamanga, initially came forward and applied to be approved for a kinship placement. However, he failed to respond and travelled to Africa and never completed the approval process. As a result, he was not approved as an appropriate placement for the child.
Impairment of Future Ability to be Adopted
[105] There is no evidence before me that allowing access would impair or how it would affect the child’s future opportunities for permanent or stable placement. The onus of proof is on the person seeking access. This was set out in the Children’s Aid Society of Niagara Region v. C.J. [2007] Ontario Div. Court where the Divisional Court stated:
“The onus is on the person seeking access to a Crown Ward to prove on a balance of probabilities:
That the relationship between the person and the child is meaningful to the child.
That the relationship between the person and the child is beneficial to the child.
Access will not impair the child’s opportunities for permanent or stable placements.
The three factors must be proven on the balance of probabilities by the person seeking access before the Court goes on to consider whether an access order would be in the child’s best interest.”
[106] In the circumstances, with the lack of regular visiting by the mother and no recent visiting by the grandfather, the lack of interest shown in the child by the mother and grandfather, the lack of a relationship and the very limited attachment, I find that the mother and grandfather have not shown on a balance of probabilities that the relationship with the child is either meaningful or beneficial. I am also satisfied that they have not produced any evidence and have not satisfied the last criteria that access would not impair the child’s future opportunities for adoption.
Disposition
[107] For the above reasons the child, P.B., is made a Crown Ward without access.
Justice Robert J. Smith
Released: November 29, 2016
CITATION: La Société de l’aide à l’enfance d’Ottawa v. L.K.M.B., 2016 ONSC 7429
COURT FILE NO.: FC-15-1211
DATE: 2016/11/29
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 P.Z.M.B.
(d.o.b. […], 1999)
BETWEEN:
La Société de l’aide à l’enfance d’Ottawa
Applicant
– and –
L.K.M.B. - Mother
Respondent
REASONS FOR JUDGMENT
R. Smith J.
Released: November 29, 2016