Children’s Aid Society (Ottawa) v. S.L. and M.B., 2017 ONSC 7019

CITATION: Children’s Aid Society (Ottawa) v. S.L. and M.B., 2017 ONSC 7019

OTTAWA COURT FILE NO.: 11-1690

DATE: 2017/11/23

SUPERIOR COURT OF JUSTICE - ONTARIO

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

RE: Children’s Aid Society of Ottawa vs. S.L. and M.B.

BEFORE: Justice Hélène C. Desormeau

COUNSEL: Marie-Josée Ranger, counsel for the Applicant

Pauline El-Tenn, counsel for the Respondent mother

DATE HEARD: November 22, 2017

JUDGMENT

Overview

[1] While initially the trial had two issues to be determined, only one was left for determination by me by the end of the trial: frequency of the mother’s access visits with the child.

[2] The child is question is H.L., born […], 2013. She is four years old. Following a motion for Summary Judgment brought by the Society heard June 22, 2017, Justice MacLeod ordered on June 26, 2017 that H.L. be placed in the legal custody of the kin caregiver: L.O. The child had been in the care of L.O. since the summer of 2016. The same order allows for access between H.L. and her father: M.B., to be at the discretion of L.O. The mother’s access could not be determined at that time.

[3] Prior to the commencement of the trial, Sandra Jones, the father’s previous counsel, was officially removed as counsel of record upon filing the Notice of Change in Representation signed by M.B. M.B. chose not to participate in the trial.

Position of the Parties

[4] Before addressing the contentious issues, it is important to note that prior to, or during the trial, the following concessions were made by all parties:

(a) Continued contact between H.L. and S.L. is in the child’s best interest;

(b) When S.L. attends the visits between herself and H.L., and she is sober, the visits are positive and appropriate;

(c) S.L.’s access to H.L. shall be fully supervised;

(d) Access visits between S.L. and H.L. shall be for two hours per visit; and,

(e) After hearing their testimony, it was agreed by all parties that T.C. and B.L. are suitable supervisors for the mother’s access, subject to providing a clean criminal records checks and vulnerable sectors checks.

[5] While the Society does not officially take issue with regards to frequency of visits, they support the kin mother’s position that access should be once every three weeks, for two hours per visit. In support of same, through testimony of the Child Protection Worker (“CPW”) Katia Parent and Access Worker Alison O’Neil, the Society set out the following:

(a) The Society’s current file was opened approximately four years ago, just after H.L.’s birth. The Society was initially involved given the mother’s issues with alcohol, they had previously been involved with the mother’s other children, and concerned about the mother’s parenting capacity issues with respect to alcohol use;

(b) S.L. has attended a number of treatment programs, but has always relapsed and consumed alcohol;

(c) S.L. recently attended a treatment program in Brentwood, but since completing same has consumed alcohol;

(d) The Family Court Clinic Assessment (“FCCA”) went unchallenged, and therefore should be accepted as expert evidence;

(e) H.L. has been in the care of L.O. since the summer of 2016. CPW Parent has observed H.L. to have a strong attachment to L.O. She refers to L.O. as mommy. She further commented that she has seen growth and development of H.L. since being with L.O.;

(f) CPW Parent has observed L.O. to be protective of H.L., has provided her a stable environment and consistent care;

(g) H.O. is an extremely small, and a physically fragile little girl, who is developing a little slower than other children. She requires extra supports in developing skills such as speaking and learning;

(h) CPW Parent testified that at this time, their primary concern is that S.L. may show up at a visit with H.L. intoxicated, and S.L. would be unable to react if issues arose while in that state. In cross-examination, the worker confirmed, based on her observations of the two access visits she personally supervised, S.L. is capable of caring for H.L. for visits which last between one to two hours. She also acknowledged that overall, H.L. appeared comfortable with her mother during supervised visits;

(i) CPW Parent testified that S.L. had not seen H.L. for approximately one year, and her first access visit with the child in 2017 was on June 26, 2017. This is confirmed in the mother’s statement to the access worker set out in Exhibit 2, the June 26, 2017 case note of CPW Parent;

(j) Access worker Alison O’Neil supervised 10 out of 11 visits which took place, out of a possible 19 visits. Three of the visits were cancelled by the mother. Access was 1.5 hours per week, supervised. Ms. O’Neil stated a number of the mother’s strengths, such as arriving early for access, being polite to workers, bringing healthy and appropriate snacks for H.L., and organizing activities for H.L. during the visits. For the most part, Ms. O’Neil indicated that there were no worries. She went on to state that on two occasions, she suspected that the mother was under the influence of alcohol prior to an access visit taking place. One was cancelled by the access worker, but the other proceeded and S.L. was able to be child focused despite the worker’s concerns;

(k) The access notes which were properly entered as exhibits show that the mother is affectionate and loving towards H.L., and H.L. shows affection towards her mother. S.L. will play with the child, and make her laugh. For instance, at the August 17, 2017 visit, H.L. ran to her mother exclaiming “mama!” and hugged her. At the end of that same visit, S.L. expressed to the child that she loves her, and gave her a hug and kiss (Exhibit 5);

(l) Ms. O’Neil testified that on September 6, 2017, S.L. was a no-show at the visit, and did not give a reason to her for missing the visit. The next cancellation was on November 8, 2017. While the mother sent two emails to the worker to cancel, no reason was provided by the mother. The child had already been picked up by the driver and had to be turned around due to the late notice. The November 15, 2017 visit was also cancelled by the mother. The mother sent an email, but it was not received by the worker until after the child had been picked up for the visit. The child again had to be turned around to go back home. In cross-examination, the worker confirmed that four visits were cancelled by L.O., the reasons for which were either due to the child having an appointment, or the child needing to go to the doctor due to an injury that same day;

(m) In closing submissions, the Society emphasizes the requirement for continuity of care for H.L. They suggest that continuity of care is affected if visits do not occur due to the mother’s alcohol consumption, particularly because the child believes she will be seeing her mother. It is not in the child’s best interest to have inconsistent access with her mother. Access once per week is too much for H.L. as she reacts in a negative fashion thereafter. S.L. has not made out her case for access to be once per week. Pursuant to section 37(3) CFSA, in particular sub-sections 1, 2, 5 and 7, weekly access is not in the child’s best interests. The Society indicates, and this statement is supported by Justice MacLeod’s Endorsement of June 26, 2017 at paragraphs 8 to 10, that the child has had multiple placements in her life, and inconsistencies have been a part of her life. If weekly access were ordered, and not respected, it would have a negative impact on the child moving forward.

[6] The Respondent mother’s position is that she should have access to H.L. once per week, supervised, for two hours in duration. In support of same, S.L. presents the following evidence:

(a) She has three other children, whose ages range from 8 years old to 17 years old, with whom she has regular access. These children have expressed a desire to see their little sister. Only S.C. has seen H.L., and at that visit, H.L. was very welcoming and happy to see her sister, as was S.C.;

(b) She has the support of her parents, one of whom is prepared to supervise her visits with H.L.;

(c) Since being back from Brentwood, she tries to attend all of her visits. Her visits are currently 1.5 hours in length, and she believes her visits are good. Every time she sees her daughter, H.L. runs to her, give her hugs, and says mama. She has never seen H.L. turn away from her, and H.L. seems happy at visits;

(d) She is doing everything that L.O. expects of her with regards to H.L., but feels restricted. She is not advised about the health of her daughter, and feels that she does not know what is going with her child. She would really like information about her child;

(e) She is asking that there at least be a continuation of the weekly supervised access. She recognizes that Family Services Ottawa can only provide bi-weekly access, which is why she has proposed other supervisors;

(f) She is very grateful to L.O. for her taking the role of custodial apparent. She thinks that L.O. is doing a great job, a wonderful job with everything that she is doing for her daughter. She understands that L.O. is in charge. She hopes in the future to be able to communicate with her so she can understand what is going on with her child. She would like H.L. to have a relationship with herself and her family, including H.L.’s sisters;

(g) She feels that she and H.L. are bonded, that H.L. knows her, and that she knows that her mother cares about her;

(h) She is aware of the risk of harm to the child when she attends for access in an intoxicated state. She indicates that she knows that when a parent feels pain, a child feels that pain too;

(i) Since completing her treatment at Brentwood, she has taken additional steps to maintain her sobriety, including going to A.A. meetings, getting in touch with a counsellor, and returning to work. She stays connected with the people from Brentwood;

(j) When asked how additional access is beneficial to the child, she responded by stating that it’s a village that brings up a child. It’s not just one person, or two people. It’s a whole bunch of people. If she can’t be there all of the time, she would like her child to at least have a relationship with her, and with her family and siblings. She feels that the current weekly access is sufficient to maintain their bond, but thinks more would be better;

(k) During cross-examination, S.L. confirmed she has attended previous detox centers or withdrawal management centers, and has taken addictions treatment in the past. However, since those treatments, she admits to using alcohol;

(l) S.L. agreed that it is important to H.L. to have stability, structure and routine; and

(m) In closing submissions, it was suggested that it was in H.L.’s best interests to continue to have regular weekly access with her mother. This access is meaningful and beneficial to the child, and should continue. Permanency and stability warrants making an access order whereby the mother will see the child once per week.

[7] L.O., the kin custodial parent suggests that access between H.L. and her mother be once every three weeks, fully supervised, for a two hour visit. In support of same, she offered the following testimony:

(a) H.L. has been in L.O.’s care since the summer of 2016;

(b) On June 26, 2017, Justice MacLeod made a Final Order pursuant to section 57.1 CFSA placing the child in the legal custody of the kin: L.O.;

(c) H.L. has special needs, including but not limited to:

(i) she has a hole in her heart;

(ii) she has eating issues, whereby she does not have a “full” signal and will eat continuously. She however does not gain weight;

(iii) she is significantly smaller in weight and height, almost half the size of her classmates;

(iv) she falls frequently, and has balance issues. She typically falls down once per week;

(v) she is a very fragile child, not very strong;

(vi) she attends occupational therapy weekly;

(vii) she attends speech therapy every second week as her speech is very delayed;

(viii) she attends CHEO at least every two weeks, and almost weekly with her pediatrician; and

(ix) she has been diagnosed with fetal alcohol syndrome.

(d) H.L. needs very strict routine, which includes a bed time between 6:00 and 6:30 pm. She also attends school daily, and returns home from school at approximately 3:40pm;

(e) L.O. has observed H.L.’s behaviours to change following the reintroduction of visits to S.L. Her evidence was that at the first couple of visits, not much was noticed, other than maybe H.L. being clingier. After the first couple of visits, she noticed that when H.L. returned home, she would be very clingy, and would not leave her leg or her lap. Her regular routine at bed time was disturbed as H.L. would cry and be more emotional. She fell down more frequently, and has soiled herself. When visits are cancelled, H.L. appears disappointed, but she is not at the level to be able to communicate her disappointment. At one time, H.L. stated “S. doesn’t like me” upon return from a cancelled visit. This only happened on one occasion. While L.O. has never observed a visit, she knows that H.L. has fun at the visits;

(f) L.O. expressed concerns that weekly visits were too much for H.L., who is a fragile child. She indicates that when the mother missed two weeks of visits, and this creates a gap in the access, H.L.’s issues following access are not as evident. L.O. is also concerned about S.L.’s lack of consistency at the visits. She would like, in the future, confirmation of visits 24 hours in advance of same, including 24 hours’ notice of cancellations. L.O. would make up any visits cancelled by herself, unless they were cancelled due to the mother’s consumption of alcohol. L.O. would also make up any visits cancelled by the mother, provided that a legitimate reason was given; and

(g) In cross-examination, L.O. confirmed that she supports a relationship between H.L. and S.L. She also clarified that she herself was not overwhelmed, but the child is overwhelmed. There is a lot on the child’s schedule, and weekly access is too much.

[8] The court also heard from the three proposed supervisors. As set out above, immediately following their testimony, two of them were accepted as being appropriate, subject to a criminal records check. After hearing his evidence, the third proposed supervisor: B.C., was withdrawn at the request of the mother. Given same, I will not go into any of their evidence. Suffice it to say that after hearing the evidence of all three, I fully agree with the ultimate determination by the parties of who is, and who is not, an appropriate supervisor.

The Law and Analysis

[9] In determining this matter, I have considered the appropriate sections of the Child and Family Services Act, (“CFSA”), in particular, sections 57.1, 58, 59, and 37(3). I have also considered sections 28 and 34 of the Children’s Law Reform Act, (“CLRA”) as they apply to section 57.1 of the CFSA Orders.

[10] Section 58 of the CFSA grants the court the authority to make an order respecting a person’s access to a child, or a child’s access to a person, and impose such terms and conditions that the court considers appropriate.

[11] Section 59 of the CFSA indicates that the court shall make an order for access by the person who had charge of the child immediately before intervention unless the court is satisfied that continued contact to the person would not be in the child’s best interest.

[12] In determining best interests of a child in a Child Protection context, I must consider the test set out at section 37(3) of the CFSA.

[13] Section 28 of the CLRA allows the court to grant access to the child to one or more persons, and allows the court to determine any aspect of the incidents of the right of custody or access. The court can make any additional order that it considers necessary and proper in the circumstances. While I have considered all of the sections, I have only included below the sections that are immediately relevant to this matter:

(i) limiting the duration, frequency, manner or location of contact or communication between any of the parties, or between a party and the child, or

(ii) prohibiting a party or other person from engaging in specified conduct in the presence of the child or at any time when the person is responsible for the care of the child.

[14] Pursuant to section 34 of the CLRA the court may also give such directions as it considers appropriate for the supervision of the custody or access by a person, a children’s aid society or other body.

[15] Though I have not specifically referred to the case law presented by the parties, I have considered the cases, and recognize that every access order turns on the particular circumstances of each case.

[16] I have relied on the FCCA which was ordered by the court pursuant to section 54 CFSA. This assessment was created in order to assist the court in reaching a proper determination in the file.

[17] While the mother provided a book of documents in support of her request, not all of the pages were made into exhibits. The documents which were properly made into exhibits have been considered by me in reaching my determination. What was not properly before me has not been considered.

[18] In this case, the parties all agree that access between H.L. and S.L. is in the child’s best interest. The question left for me to determine is that of frequency. For reasons set out below, I find that access for at least two hours, every three weeks, is appropriate for this child.

[19] In coming to my determination, I am guided by the test at section 37(3) CFSA, and specifically, subsections 1, 2, 5, 6, and 7:

1. And 2. The child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs. The child’s physical, mental and emotional level of development.

a. As set out in the FCCA, we are dealing with a child who has special needs, including that of language and possibly attachment.

b. The evidence is that H.L. also has significant health issues.

c. The assessor, at page 59 of the FCCA, indicates that H.L. “has some vulnerabilities in terms of language development, but also in terms of social-emotional development.”

d. The assessment sets out that H.L. “is a child that needs a very strong sense of security, stability, predictability, in a well-established routine that includes appropriate opportunities to stimulate her development.”

e. Further, “[H.L.] needs more attention than other children in order to foster her development and correct any inappropriate behaviours. Without special attention, [H.L.] is at high risk of developing long standing problems and limitations in her cognitive functioning as well as her social functioning.”

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.

a. While it is conceded that the child has a positive relationship with her mother, I am mindful that the FCCA sets out at page 59 “To continue a relationship with the child is not necessarily detrimental but to expect that child would feel secure with the mother is unlikely.”

b. I am also mindful of Society Worker’s and L.O.’s testimony about S.L. not consistently attending access visits with the child, which disappoints the child.

c. I have also considered that while S.L. has recently completed a treatment program, she has done so in the past, and still relapsed. While I hope for H.L.’s sake that this does not occur, I am also aware that S.L. just recently resumed access with the child after not having any visits for approximately one year. It is also in evidence that S.L. recently missed two visits without any reasons having been provided. It is to the child’s detriment if access visits are not consistent.

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.

a. Based on the evidence, including the FCCA, it is clear that the child is attached to L.O.

b. The evidence also supports a determination that the child is bonding with S.L., however, I cannot make any findings regarding attachment.

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

a. Continuity of care is of primary importance to this special needs child. The evidence shows that L.O. is able to provide this continuity. Likewise, the evidence shows S.L. is unable to maintain the level of continuity required for this child as she is not consistent in the access. The disruption of continuity of care affects the child.

[20] I have considered that pursuant to sections 28 and 34 of the CLRA, the court can impose terms and conditions which it feels is appropriate. This includes appointing both B.L. and T.C. as appropriate supervisors to the access, so long as they comply with the criminal records requirements. The terms set out below are in keeping with what I find in the child’s best interest.

[21] While I understand that access has been once per week, given the inconsistences displayed by the mother, and the effect this amount of access has on the child, I am not persuaded that weekly access is in the child’s best interest.

[22] I appreciate that the child has a lot of important appointments which she must attend, such as occupational therapy, speech therapy, and doctor’s appointments. Her special needs necessitate a very strict routine. I find that given this child’s particular special needs, it is in her best interest that access with her mother be every third week, for 2 hours per visit, supervised. As such, I make the following Order:

Disposition

[23] Ms. Sandra Jones is hereby removed as counsel of record for M.B.

[24] S.L. shall have access to H.L, born […], 2013, as follows:

a) The mother shall have access to the child, H.L., once every three weeks, for a minimum of two (2) hours, subject to the following conditions:

(i) The mother shall not consume alcohol during the access visits of for twenty-four (24) hours prior to the visit;

(ii) Should the mother experience a relapse or a slip and use alcohol within twenty-four (24) hours of her visit, she shall not attend her access visit and shall advise the kin L.O. of the cancellation as soon as possible;

(iii) The mother’s access shall by fully supervised by the Family Visitation Center, T.C., or B.L., subject to their providing the kin L.O. with a clean criminal record (including a vulnerable sector check) prior to supervising a visit;

(iv) The mother and the kin L.O. shall properly complete the Family Visitation Center referral before December 1, 2017;

(v) Should the mother miss access visit two (2) times in a row or three (3) times within a six month time period without reasonable excuse, access shall revert back to the discretion of the kin in terms of frequency;

(vi) The mother shall provide confirmation by e-mail, or by direct telephone communication, 24 hours before the visit that she will be attending the visit. Should she fail to provide confirmation, the visit will not proceed;

(vii) Any additional access visit shall be as agreed between the kin L.O. and the mother, and /or extended family members;

(viii) Should the mother attend a visit and the kin L.O., or one of the approved access supervisor noted above observe that her parenting capacity are impacted in any way, S.L.’s supervisor shall have a positive obligation to act protectively and take reasonable appropriate steps to protect the child. This may include cancelling a visit if appropriate.

Justice Hélène C. Desormeau

RELEASED: November 23, 2017

CITATION: Children’s Aid Society (Ottawa) v. S.L. and M.B., 2017 ONSC 7019

OTTAWA COURT FILE NO.: 11-1690

DATE: 2017/11/23

SUPERIOR COURT OF JUSTICE - ONTARIO

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

RE: The Children’s Aid Society of Ottawa v. S.L. and M.B.

BEFORE: Justice Hélène C. Desormeau

COUNSEL: Marie-Josée Ranger, counsel for the Applicant, Pauline El-Tenn, counsel for the Respondent mother

JUDGMENT

Justice Hélène C. Desormeau

RELEASED: November 23, 2017