Stormont, Dundas and Glengary v.V.P.M, B.H., J.S. 2017 ONSC 2209
COURT FILE NO.: 14-254
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
B E T W E E N:
Applicant Children's Aid Society of the United Counties Of Stormont, Dundas and Glengarry
Peter Chisholm, counsel for the Children’s Aid Society of the United Counties of Stormont & Dundas and Glengarry
V.P.M Respondent
Neha Chugh, counsel for the Respondent V.P.M.
B.H. Respondent
David Barnhard, counsel for the Respondent B.H.
J.S Respondent
Helen C. Desormeau, counsel for the Respondent J.S.
HEARD: April 7, 2017
RULING ON MOTIONS FOR ACCESS
LALIBERTÉ, J.
[1] On July 22, 2016, Justice Leroy, on consent of all parties, issued a temporary without prejudice order placing the children A.W.H, born […], 2012 and C.J.M, born […], 2014, in the care and custody of the Society. The order provides for access to the Respondent parents at the Society`s discretion.
[2] The Respondents bring separate motions seeking a defined access schedule and the removal of the Society`s discretion in regards to this access.
[3] While the Respondents raise a number of fairly pointed and serious allegations against the Society in these motions on how it has managed the question of access, in the end, their claims is predicated on:
− The notion that the Society has not acted so as to foster the children`s relationship to the Respondents
− The notion that the Society has failed to make any significant changes to the access despite repeated requests for access to be increased and notable improvement in the quality of the access
[4] The Society rejects the allegations and suggestions made by the Respondents. It is noted that while gains have been made there have been concerns and complicating factors. There are many challenges in arranging visits for three parents each week. The Society feels that it has set a fair and reasonable access trajectory moving forward.
[5] Exhibit “D” to protection worker Tara-Ann MacGillivray’s April 4, 2017 affidavit is the Respondent’s access calendar. Exhibit “E” is the Society’s re-integration trajectory which sets out what the Society needs to see in order for access to increase, and for the eventual return of the children to their parent.
[6] While the Respondents agree with the proposed calendar set out in Exhibit “D”, their view is that the Society should be ordered to follow this schedule without any discretion to waiver from same. It is argued that the Society should bring a motion to vary if needed.
[7] The Society’s position is that while a pre-set schedule is appropriate, the circumstances are such that it should be vested with some discretion.
[8] So that the issue for the Court in these motions is whether the Society’s discretion to vary access should be maintained?
[9] In deciding this matter, the Court is mindful of the following principles set out in the CFSA:
− The paramount purpose is to promote the best interests, protection and well-being of children.
− Help should give support to the autonomy and integrity of the family unit
− The least disruptive course of action that is available and appropriate in a particular case to help the child should be considered
− Consideration of a child’s best interests includes:
• The child’s development of a positive relationship with a parent and a secure place as a member of a family
• The child’s relationships and emotional ties
• The importance of the continuity in the child’s care
− An order for access may contain such terms and conditions as the Court considers appropriate
[10] The Court has also reviewed the cases provided by counsel for the Respondent J.S., namely:
− Catholic Children’s Aid Society of Metropolitan Toronto v. M. (P.A), 1998 CanLII 14476 (ON CJ), 1998 Carswell Ont 3659
− Catholic Children’s Aid Society of Hamilton v. M. (M.A.) ,2003 Carswell Ont 1122
− Children’s Aid Society of Toronto v. M. (A.) 2002 CanLII 45665 (ON CJ), [2002] O.J. no.1432
− Children’s Aid Society of Algoma v. P. (s.) 2001 ONCJ 93
[11] Having considered all of the circumstances and the relevant principles, the Court finds that while a defined access schedule is appropriate in the circumstances, a level of discretion is required for the Society on a temporary on-going basis.
[12] The Court’s intent is for the Society to exercise this discretion when it is necessary to do so to promote the best interests, protection and well-being of the children. The re-integration trajectory plan found at Exhibit “E” of protection worker Tara-Ann MacGillivray’s April 4, 2017 affidavit is found to be an objective and reasonable prospective measure of how access should be governed in these child protection proceedings.
[13] In arriving at this conclusion, the Court has considered the following:
− The Respondent parents have shown a willingness to address the Society’s concerns and taken steps to address same; this favors a more definite and structured access regime to the children
− Provided it is consistent with the children’s best interests, protection and well-being , access, in this matter, should be a means to foster, nurture and maintain the children’s relationship to the Respondent parents
− The need to maintain the Society’s discretion to waiver from a pre-set access schedule is rooted in the following:
• The long standing history of concerns relating to the care given to these children by the Respondents;
• The Society has been involved with these children since their birth either through court proceedings or on a voluntary basis
• The children have been apprehended on two separate occasions
• The Respondents have historically waivered on the quality of care given to the children
• The evidentiary record reveals episodes of the Respondent’s providing appropriate care to the children followed by sudden and unforeseen changes of circumstances when the children were placed at significant risk
• The degree of risk associated to the care of these children is relatively significant; they were found to be in need of protection on September 24, 2015
• The events leading to the July 19, 2016 apprehension of both children are troubling
− The Respondent J.S. has plead guilty to a number of Criminal Code Charges stemming from the events of July 19, 2016 including forcible confinement and exposing a child to danger; he is awaiting sentence
− The Respondent mother is also charged with same offences and is awaiting a judicial pre-trial on May 21, 2017
− The July 19, 2016 events occurred in the context of the Society being involved with the children on a voluntary basis
[14] The Court also finds that the evidence does not, on balance, support the Respondent J.S.’s suggestion that the Society has not put the children’s best interests in the forefront and “… is seeking to devastate children of any form of caregiver with whom they have an attachment in pursuit of their end game goal: Crown Wardship “
[15] This conclusion is based on the following considerations:
− There are three separate Respondent parents between whom the Society must balance access
− Respondents J.S. and V.P.M cannot exercise access together by reason of bail conditions which prohibit contact
− While access has not been without difficulties (i.e. cancelled visits, condition of home where access was to take place, breaches of bail conditions, no one to supervise access, unexplained bite and marks on child’s back , children’s behavior when returning from visits.), the Society has shown to exercise its discretion and increased access once concerns were addressed by the Respondents
− The fact that the Society has worked with the Respondent parents towards increased access including overnight visits once the proper structure in place, is not supportive of the notion that the Society has acted so as to frustrate the children’s relationship to the Respondent parents
[16] On consent of the parties, the Court will direct that any reference to a Judge’s worries in the exhibits attached to protection worker Tara-Ann MacGillivray’s affidavit of April 4, 2017 is to be redacted from the record.
[17] In regards to the Respondent B.H.’s request for an order compelling the Society to review pre-access planning, tip sheets and other helpful parenting information sheets with him prior to each visit, while the Court will not order same, clearly the expectation is that the Society will do so as part of its mandate to assist the Respondent. This takes on special significance in light of his learning difficulties.
CONCLUSION
[18] For the reasons articulated in this ruling, the Court makes the following temporary order:
The Respondent parents access to the children A.W.H., born […], 2012 and C.J.M., , born […], 2014, shall be in accordance with and progress in accordance with the defined access schedule set out in Exhibit “D” attached to protection worker Tara-Ann MacGillivray’s affidavit dated April 4, 2017.
The Society’s discretion to waiver from the said defined access schedule is preserved and is to be exercised if and when necessary to do so to promote the best interests, protection and well-being of the children.
In exercising its discretion, the Society shall be guided the re-integration trajectory plan found at Exhibit “E” of protection worker Tara-Ann MacGillivray’s affidavit dated April 4, 2017.
Any reference to a Judge’s worries in the protection worker’s affidavit evidence filed in the continuing record is to be redacted.
Justice Ronald M. Laliberte Jr.
RELEASED: April 10, 2017
Stormont, Dundas and Glengary v.V.P.M, B.H., J.S., 2017 ONSC 2209
COURT FILE NO.: 14-524
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
B E T W E E N:
Children’s Aid Society of the United Counties of Stormont, Dundas and Glengary
Applicant
- and –
V.P.M Respondent
- and -
B.H. Respondent
- and -
J.S Respondent
RULING ON MOTIONS FOR ACCESS
Justice Ronald M. Laliberte Jr.
Released: April 10, 2017