Court File and Parties
COURT FILE NO.: FC-15-2642 DATE: 2017/03/09 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: J.H.1, Applicant AND J.C., Respondent
BEFORE: Justice A. Doyle
COUNSEL: Rebecca E. Rosenstock, Counsel for the Applicant Kristen Robins, Counsel for the Respondent
HEARD: March 2, 2017
Endorsement
[1] The Applicant mother brings a motion to change the order of Justice J. V. Mackinnon dated May 31, 2013 (Final Order). She is requesting an order for joint custody of 7 year-old H.H. (now known as H.M.C.) and a parenting schedule, which would grant her half time with the child within three months.
[2] The Respondent father opposes the motion on the basis that there has not been a material change in circumstances since the Final Order. If the Court finds that there has been a material change in circumstances, then he submits that it is not in H.M.C.’s best interests to have contact with her mother at this time.
[3] The issues are: − Has there been a material change in circumstances? − If the answer is yes, what parenting arrangements are in H.M.C.’s best interests?
[4] For the reasons set out below, the Court finds that there has been a material change in circumstances and that H.M.C. should have access to her mother in accordance with the terms set out below.
Background
[5] The mother is 25 years old. She was 18 years old when she gave birth to H.M.C.. She has two other children, J.H.2 born […], 2015 and A.H., born […], 2012. She is the subject of a voluntary care agreement with the Children’s Aid Society of Ottawa-Carleton (CAS) with respect to J.H.2 and A.H..
[6] The mother has a criminal record. Her last conviction occurred on March 25, 2014 when she received a 90 days’ conditional sentence and 18 months’ probation for a conviction of a 2012 charge of assault with a weapon. She also had a previous concealed weapon conviction.
[7] The father is 27 years old and has been residing with D.M. for the past three years. They have one daughter S. who is 3 years old. He has a criminal record and his last conviction was an assault for spitting on a firefighter for which he received 12 months’ probation. His last charge was for uttering death threats to a co-worker in 2016 which was withdrawn upon him entering into a peace bond.
[8] H.M.C., born […], 2010, has been diagnosed with ADHD and is taking medication. She demonstrates challenging behaviours and the school personnel are working closely with her. She does not respond well to change and needs consistent routine and structure. H.M.C. calls Ms. D.M. “mom” and believes that she is her biological mother.
[9] H.M.C.’s name was changed when the father applied for the same after providing notice to the mother’s last known address.
[10] When H.M.C. was 4 months old, she was placed in the care of the CAS. She remained in foster care from June 2010 to August 2012. The allegations against both parents were drug use, transient life style, criminal activity and domestic violence. Society Wardship orders were granted after the child was found in need of protection pursuant to the Child and Family Services Act, R.S.O. 1990, c. C.11.
[11] The mother was inconsistent with visits. She attended some visits during the 1st year the child was in care but almost none in the second year. She did not participate in the child protection proceedings. She had an unstable life including drug use, engaging in criminal behavior, living a transient lifestyle and being involved in unhealthy relationships with individuals who had criminal records.
[12] The father was consistent in his visits and the visits increased. He cooperated with the CAS and the child was returned to him.
[13] The Final Order on consent was issued in CAS proceedings. It provides for the following: − Father would have sole custody of H.M.C.. − The mother’s access would gradually increase in stages. Commencing June 2013, the mother would have access for two hours every second week supervised by the CAS. It would expand and by months of November and December 2013, she would have unsupervised access for eight hours per week. − In January 2014, access would gradually increase to overnight visits. − If the mother missed visits without valid medical reasons, access would return to the first stage of the access schedule. Prior to commencing overnight access in January 2014, she would be required to provide a hair follicle test confirming abstinence from illegal substances. − The father would advise the mother of any third party service providers involved with the child. − The mother would be entitled to receive information and documentation from third parties including teachers, school personnel and health care professionals. − Both parties would refrain from using all non-prescription drugs while caregiving H.M.C.. They would not expose her to adult conflict or individuals involved in criminal activity or drug use. − If the mother moves from the Ottawa area, she will advise the father.
[14] Paragraph 9 reads as follows: If the mother failed to attend her access on a consistent basis (i.e. if she misses more than two (2) access visits in a row, or more than 50% of her access visits in a one (1) month period) without a valid reason supported by proper documentation, then her access will revert to being at Mr. J.C.’ discretion.
[15] The mother had one visit since the Final Order and her last visit was in June 2013. She was not consistent with visits and therefore visits were reverted to the discretion of the father. He was not prepared to permit visits, as he did not believe it as in H.M.C.’s best interests. It has been almost 4 years since H.M.C. visited with her mother.
Has there been a material change in circumstances?
Mother’s position
[16] The mother submits that she is in a different place than in 2013. She is not the same individual. She has two healthy happy children and she is now focused on being a mother and is not in a relationship. She has been parenting her two children for the past 5 years and she has a stronger understanding of what is required to be a good parent. She is now stable and settled in Ottawa.
[17] Her relationship with the father was abusive and he had physically assaulted her. She was fearful of him and was concerned he would harm or kill her. She says it was tumultuous relationship. He was charged with 30 counts of assault.
[18] The charges against him were dismissed when she failed to attend the trial. She was not in a position where she could be involved with the CAS proceedings.
[19] Due to her traumatic previous relationships, she was not able to deal with being involved and she admits her mistakes.
[20] She has undergone cognitive behavioural therapy, which assists her in dealing with her mental health issues. Her counsellor submitted a letter dated March 1, 2017.
[21] The CAS reports that she appears to be managing well, meeting the needs of her children and she had the same caseworker since 2010. Her worker is prepared to assist in the reintegration of H.M.C. with her mother and indicates that it is in the children’s best interests that they have access to their sister, H.M.C..
[22] In September 2016, the mother had her house broken into by an ex-partner and she fled the home for a shelter. She was acting in the children’s best interests and their safety.
Father’s position
[23] The father submits that there has been no material change of circumstances as the mother still has the same troubling issues as in 2013. She is still involved in abusive relationships; still taking drugs, has no stable housing on a regular basis and has engaged in criminal activity. She has only been in stable housing since November 2016.
[24] The CAS is involved in her life and hence they are sufficiently concerned to be monitoring her to ensure that her children are well cared for.
[25] She just recently completed her probationary period and left to live in a shelter as she was concerned for her safety and that of her children.
[26] He denies the abuse alleged by the mother.
The Law
[27] Section 29 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (CLRA) states that: A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child. R.S.O. 1990, c. C.12, s. 29.
[28] The Court will find that there has been a material change in circumstances if the Court finds that were the current circumstances known at the time of the original Order, the said Order would have been different.
[29] As stated in Brown v. Lloyd [2015] O.J. No. 327, (Ont. C. A.), the Court should evaluate whether the child’s needs or circumstances, or the parent’s ability to meet her needs has been altered in a fundamental way so as to materially affect the child.
[30] Upon finding a material change of circumstances, the Court must embark on a fresh inquiry to determine what is in the child’s best interests. Gordon v. Geertz [1996] S.C. R. 27.
Decision
[31] The Court finds that there has been a material change of circumstances. There have been significant changes to the mother’s situation which will affect her parenting for the child.
[32] The mother has completed counselling, therapy, has two children who are progressing well in her care and she is cooperating with the CAS.
[33] Even though some of the issues that existed in 2013 continue to be of concern to the CAS, to the point that they comment that “she keeps making the same mistakes over and over again”, the CAS has not requested a court to find the children in need of protection.
[34] Her parenting of her two children is not supervised. In 2013, her contact with her daughter had to be supervised, as the other parties were obviously concerned with her parenting of her child.
[35] The Court finds that the mother has made progress and has demonstrated that she has insight into her past and is making efforts to improve her parenting.
What parenting arrangement is in H.M.C.’s best interests?
Mother’s position
[36] The mother wishes gradual access to increase with access to half time within three months. She believes that it is in H.M.C.’s best interests that she be reacquainted with her mother and meet her two siblings.
[37] She wishes a joint custody order so she can be involved with the child. She does not know where the child lives, goes to school or anything regarding her medical and educational needs.
Father’s position
[38] Access should continue to be at his discretion. He does not believe it is in H.M.C.’s best interests at this age to reintroduce her to her mother.
[39] H.M.C. does not know that the mother is her biological mother. It would be very confusing to her.
[40] There has not been a long enough period of stability. In the future, he may tell H.M.C. about her biological mother. He is concerned with the mother’s consistency and how emotionally difficult it would be if the mother was reintroduced to H.M.C. and was not consistent in visiting her.
The Law
[41] CLRA s. 24 states: (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4). 2006, c. 1, s. 3 (1).
(2) The Court shall consider all the child’s needs and circumstances, including, (a) the love, affection and emotional ties between the child and, (i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child, (ii) other members of the child’s family who reside with the child, and (iii) persons involved in the child’s care and upbringing; (b) the child’s views and preferences, if they can reasonably be ascertained; (c) the length of time the child has lived in a stable home environment; (d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child; (e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing; (f) the permanence and stability of the family unit with which it is proposed that the child will live; (g) the ability of each person applying for custody of or access to the child to act as a parent; and (h) any familial relationship between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10; 2016, c. 23, s. 7 (1, 2); 2016, c. 28, s. 2.
Decision
[42] In determining parenting, the Court must determine what is in H.M.C.’s best interests. The Court finds that the mother should have access to her. However it must be done in a very careful and gradual manner.
[43] This is not a joint custody situation where the parties have a history of communication dealing with the child’s best interests. The mother is a stranger to this child. This is not the time for the mother to be considering jointly making decisions for H.M.C.. She will certainly be advised of any major decisions and the father is ordered to provide up to date information on a regular basis including reports cards, medical reports, school /educational assessments and other important information.
[44] The mother has taken responsibility of what has occurred in the past and does cast blame on the father. The father dwells on the past as well and indicates that the mother has only herself to blame for the current situation with H.M.C..
[45] The Court must review what has occurred since 2013 and determine what is in H.M.C.’s best interests at this time.
[46] Both parties have criminal records and have shown to have past issues with criminal activity: father with anger management and the mother with transient lifestyle.
[47] The letter dated February 7, 2017 from Michelle Tyrell, the child protection worker, indicates that the mother is making good progress in addressing the Society’s concerns and meeting her children needs. She states that she will continue to work with the mother, monitor the family situation and encourage her to make appropriate decisions for herself and her children. She states that she supports access to H.M.C. and would be “willing to assist in facilitating a reintegration process if needed. I also believe it is in the children’s best interests to have sibling access with H.M.C..”
[48] In the letter from Heather Hazlett, M.S.W., from Interval House of Ottawa dated February 7, 2017, she confirms that the mother, J.H.2 and A.H. were residents at the shelter from July 21, 2016 to October 29, 2016 as the mother was fleeing abuse. She provided counselling to the mother and felt she had acted in a protective manner when she chose to leave her residence due to safety concerns.
[49] She states: “J.H.1’s interactions with her children appeared to be loving and supportive; she had a healthy routine in place which supported her children during their transition to living in a communal environment. J.H.1’s children always appeared clean and well fed; they were both happy, outgoing children who were eager to explore and learn new things”.
[50] The father’s partner, D.M. is a child and youth counsellor with the Youth Services Bureau and prior to that was a special needs worker with city of Ottawa. She has been parenting H.M.C. for 4.5 years. Her parents consider her a granddaughter and her brother and wife their niece.
[51] She states that the father is a good parent and is not physically violent and if he becomes frustrated, he steps out on the balcony or leaves the residence.
[52] There are no reports before the Court regarding H.M.C.’s school reports cards, her diagnosis and the current treatment. The father indicates that she is doing well.
[53] The CAS report dated June/July 2016 indicates the following: − Objectives: not engaging in criminal activity that affects parenting or may harm the child, provide safe and stable housing, nutritional food and adequate clothing. She has a history of instability and transiency. − She had stable housing for 2 years but was homeless again in October 2015 when she had to give up her housing for safety reasons. She continues to use marijuana on an occasional basis. − A June 21, 2016 note states: “She has a recent period of instability”. She was not to engage in criminal activity or associate with criminal offenders. − Summary: J.H.1 reports that she is managing well on her own and has a good supply of food, clothing and household needs. Both children have been healthy…. Although J.H.2 and A.H. are growing and developing well in their mother’s care, the Society continues to be concerned about her lifestyle choices, her instability, her pattern of abusive partners with addition issues and her own drug use. J.H.1 has been involved with at least 4 partners, to the Society’s knowledge, over the past 5 years and all of these men have struggled with drug addiction issues, have been involved in criminal activity and have been involved in domestic violence episodes. J.H.1 and her family of origin have an extensive involvement with the society. Although J.H.1 recognizes the significant concerns related to her brothers and her other, she continues to welcome the in her hoe and around her children. These decisions have compromised the safety and well being of her children and herself. She continues to make the same mistakes over and over again.
[54] Reviewing s. 24(2) of the CLRA, the Court finds that: (a) there is no love affection and emotional tie with child as there is with her and her father and partner; (b) H.M.C.’s views and preferences are not ascertainable at this time; (c) she has had a stable home with her father since 2012 – same residence – same partner – H.M.C. has a sibling who loves her. She has contact with her extended family; (d) the ability and willingness of each parent: – father has been meeting all her needs and questions whether the mother can provide guidance and education – in the last 2 years she had to leave and live in shelters; (e) the disruption to the child’s reality may upset her from an emotional point of view. For that reason, H.M.C.’s reintegration with her mother will proceed slowly and with the guidance of professionals as outline below. The Court also notes that H.M.C. has special needs and hence a gradual reintegration of the mother back into H.M.C.’s life with the assistance of mental health professionals will ensure that her routine and structure is not disrupted; (f) the parents’ plan; – father is doing well and H.M.C. is doing well in her care; (g) the main consideration is that the father has demonstrated permanence and stability and the mother has not as she has repeated involvement with different men; (h) the ability to act as a parent – the mother has shown that she can be a parent and is currently parenting two young children; (i) there is no relationship between mother and child but it is in H.M.C.’s best interests that she be introduced to her biological mother. H.M.C. has not been adopted and there has been no determination that all ties between the mother and the child are severed.
[55] The Court finds that the child should be entitled to have a relationship with her mother who is in a different place than in 2013. The mother has matured and has made some strides in her life. She does not pose a physical danger to her but there are a number of emotional concerns with respect to resumption of access.
[56] The mother can contribute to the child and in addition H.M.C. has a right to have contact with her two siblings.
Disposition
[57] Therefore, the Final Order will be varied as set out below: − the father will continue to have sole custody of H.M.C.; − the mother will be advised of any major decisions and the father is ordered to provide up-to-date information on a regular basis including report cards, medical reports, school /educational assessments and other important information; − the mother will abstain from consuming non-prescription drugs while in the presence of H.M.C.; − before an integration takes place, within 30 days from the date of this Order, the father will provide the mother with H.M.C.’s last three years of report cards, her medical reports dealing with the diagnosis of ADHD, her last school photos, a list of her food likes/dislikes, her favorite subjects at school, her hobbies and interests, the IEP report if any and any food allergies or sensitivities; − discussions with H.M.C. will need to be carefully crafted by the parties and the CAS childcare worker may be able to assist in this regard. If she is not available, the parties must access counsellors to obtain advice and guidance on what should be told to the child; − the parties will register and apply for the Supervised Access Program (SAP). − access should start slowly through the (SAP). Within 30 days from the date of this Order, the parties will complete the necessary forms to enter the program; − once the SAP approves the access, the mother will be entitled to 2 hours of supervised access every two weeks at the SAP; − the parties or further court orders prohibit the mother from attending H.M.C.’s home or school subject to an agreement; − both parties will refrain from consuming all non-prescription drugs while caregiving H.M.C.. They will not expose her to adult conflicts or individuals involved in criminal activity and/or drug use; − for the first six months, access will be only with the mother. Subject to the consent of SAP, the mother will be permitted to bring her children for visits with H.M.C.; − access can be reviewed after one year from when the mother commenced access. If the mother is not consistent with the visits, the father will have the right to bring the matter back for review; − if the mother moves from the Ottawa area, she will advise the father; and − in the event that the father wishes to permanently move the child from the Ottawa region, he will provide 90 days’ written notice to the mother.
[58] There has been mixed success and the Court is not inclined to order costs. If the parties cannot agree on this, the mother will provide her two page submissions (along with any offers to settle and Bill of Costs) by March 25, 2017 and the father will provide his two page submissions (along with any offers to settle and Bill of Costs) by April 7, 2017.
Madam Justice A. Doyle Date: 2017/03/09