Superior Court of Justice – Ontario
Court File No.: 99/10 Date: 20180803
Family Court
Between: Children’s Aid Society of London and Middlesex, Applicant And: S.H., B.G., S.D., T.M. and J.M., Respondent
Counsel: T. Price, for the applicant Children’s Aid Society S. Khot for S.H. (mother) W. Corston for B.G. (father) A. Kikinova for S.D. (maternal grandmother) Self-represented T.M. and J.M. (paternal grandparents) J. Lee for the children, N. and D.
Heard: June 18-22, 25-28, and July 30, 2018
Aston J.
Overview
[1] N. and D., now 12 and 10 years of age, have been the subject of child protection proceedings since they were infants. They were apprehended from their parents in 2010, and found in need of protection under s. 37 of the Child and Family Services Act (CFSA), primarily because of drug addiction and domestic violence issues. They then lived with the paternal grandparents for several years. In 2014, they were removed from that home. Between July 2014 and January 2017, they were in multiple foster homes, including the home of a prospective adoptive family. However, in 2016 the adoption fell through. The children have been in society care cumulatively for three years or more and have lived in nine or ten different homes with a like number of different caregivers since Society involvement first began in 2010. The boys have also had to cope with the deaths of their infant sister and, recently, their mother. Over the years, the Society has expended tremendous time and effort in providing support and services to the respondents and the children.
[2] Most recently, on the eve of a crown wardship trial in January 2017, an order was made on consent placing the boys with S.D., their maternal grandmother, to be supervised by the Society, subject to access in favour of each parent and a long list of terms and conditions. The order of January 13, 2017 followed three days of intense negotiations at the courthouse mediated by Henderson J. The younger child is still with S.D. under that supervision order, but 12-year old N. was removed from her care shortly before this trial and has been in the temporary care of the society for the last three months.
[3] This is a status review application. The applicable legal test is the best interests of each child. The best interests of the respondents are irrelevant. Section 74(3) of the Child, Youth and Family Services Act, 2017 (CYFSA) sets out a number of circumstances and factors that must be considered in determining the best interests of a child. The focus in this case is on a comparison of the merits of the Society’s plan of care, including the prospect of adoption, compared to the merits of the child remaining with or returning to one of the respondents. In determining what is in each child’s best interests it is also fundamentally important to consider each child’s views and wishes and to give proper weight to those views and wishes in accordance with the child’s age and maturity. Ms. Lee was of great assistance to the court in that regard. A very important consideration in this case is to provide a stable and secure home for two boys who have only known instability and conflict throughout virtually the entirety of their lives.
[4] I do not intend to specifically address or resolve all of the conflicting evidence in this case. However, I am mindful of the court’s obligation under s. 97(1)(d) of the CYFSA and I will focus on why I reject the plans of care of each of the respondents. First, the background of the present application.
[5] This status review application was started in May 2017, shortly before the expiry of a seven-month supervision order made on consent in January 2017. The application sought an extension of a placement of the boys with their maternal grandmother S.D., with access in favour of the father B.G. From the Society’s point of view, there was never any intention that the January 2017 order was to pave the way for a return of the boys to their father’s care. Unfortunately, that was not a common understanding. B.G. (and perhaps his parents T.M. and J.M.) understood that following a seven-month placement with the maternal grandmother the children would be returned to him if he complied with the terms of the order, took advantage of programs or other support that the Society could offer him and reestablished his relationship with the boys through graduated access. There had been quite a hiatus in the father’s relationship with his sons. B.G. had not seen either of the boys for at least 7 months before the January 2017 order and only sporadically before that. That is why the order had a specific and detailed graduated access provision. It began with brief supervised access at the Society’s premises for several weeks, followed by supervised exchanges for regular daytime access in the community, followed by overnight access. Unsupervised access for the father started May 13, 2017. Overnight access was scheduled to begin September 2 but was delayed until September 23. There was also a specific provision for telephone access for the father. The mother, residing in B.C., was to have “access” by Skype.
[6] Right from the beginning the maternal grandmother, S.D., resisted the father’s access provisions in the order. She often refused to comply with the terms of the order. More on that to follow.
[7] The father also failed to comply with the terms of the January 2017 order. He continued to use illicit street drugs. On several occasions, if not many occasions, he has had conversations with the boys about the court proceedings and “adult issues”. He has specifically encouraged them to say they want to come and live with him.
[8] The mother left Ontario in the spring of 2016 and resided in British Columbia after that. One of the reasons for her move was to get away from the causes of her difficulty in dealing with her drug addiction. At trial, her position was that she had effectively addressed her drug addiction and had been clean and sober for more than two years. She conceded that at the time of the order of January 2017 it would have been premature for her to pursue a plan that would send the children to British Columbia to live with her. However, shortly before this trial, she delivered her amended answer and formal plan of care making that proposal. She had communicated her intention to do so almost six months earlier but it was difficult to get British Columbia authorities to conduct any reliable investigation of her circumstances there. At the conclusion of the evidence on June 28, 2018, a temporary order was made placing the boys in their mother’s care effective July 12 on certain terms and conditions, pending an adjournment of the trial to August 30, 2018. She would have them for the summer at her home in Abbotsford, B.C. There would be time for a more thorough investigation and corroboration of her testimony at trial. Her evidence at trial was very positive. The boys’ extended visit with her in B.C. last summer went very well by all accounts. Her proposed plan of care seemed to be a genuine possibility. Tragically, she died on July 11, 2018, before the boys could join her in B.C. They travelled there with S.D. and were able to see her briefly while she was on life support, unconscious. They have remained with S.D. in British Columbia since that time over the objection of the society. The resumption of the trial was brought forward to July 30 and completed that day.
The Society’s Evidence and Plan of Care
[9] The Society’s original plan of care when this status review application was started 14 months ago, was to continue placement of the children with their maternal grandmother, subject to access in favour of the two parents. The hope was that the child protection order would transmogrify into a custody order, with access to the parents and no need for formal ongoing involvement on the part of the Society.
[10] The Society’s plan of care changed shortly before the trial. It now seeks an order for extended society care, formerly known as crown wardship. The main reasons for the change in its position stems from the inability of S.D. to promote or support the father’s access, her refusal to abide by the terms of the court order of January 2017, and the fact that the boys continue to be at the centre of a long running bitter family feud which exacerbates the risk to their security and emotional wellbeing. S.D. is seen as an instigator and protagonist in the family conflict. In addition, 12-year old N. has run away from her home twice this Spring and refused to return to her residence. The Society believes the father is incapable of safely caring for the boys because of his ongoing drug addiction, anger management and mental health issues. The Society can no longer believe what B.G. tells them and he seems incapable of maintaining a cooperative or positive relationship with any professional support person. The paternal grandparents have had virtually no contact with the boys since the boys were removed from their care four years ago. Furthermore, they are entrenched in the family feud as active combatants. In the Society’s view, the children cannot be safely placed in the care of any other party to this proceeding, leaving extended society care as the only option.
[11] The evidence of the three Society workers who have had responsibility for this file from 2011 to the present is found in the affidavits entered as Exhibit 1. Those affidavits focus on the period since the last order in January 2017.
[12] From the perspective of the Society, B.G., S.D., J.M. and T.M. have never accepted responsibility over the years for the problems they have created within the family and specifically for the boys. The adults all blame one another. That impression is certainly borne out by the testimony of the respondents at this trial. None of them (with the exception of S.H.) seem to understand the harm caused to the boys from putting them at the centre of the adult conflict.
[13] Ironically, the mother and father themselves were not the main combatants in the family feud. They had maintained a modicum of respect for one another but there was great hostility between the father and his parents on one hand and the maternal grandmother on the other hand.
[14] In addition to B.G.’s anger and emotional volatility, he was difficult to work with from the Society’s perspective because of his often fragmented thought patterns and inability to accept any point of view at odds with his own. B.G. never complied with repeated requests for a signed consent that would allow the Society to access his drug monitoring by Dr. Lee. I reject his excuse that he was leaving it up to his lawyer to take care of that and find that he was deliberately protecting drug test results from disclosure to the Society because those tests would reveal that his addiction issues were not under control as he claimed.
[15] Holly Gibson was frustrated during the time she had carriage of the Society’s file by the fact that both B.G. and S.D. were asking the boys for information about the other and also feeding manipulative and misleading information to them. Neither would cease and desist. They were each determined to win the loyalty contest.
[16] Exhibit 10 is a “memo of understanding” signed by the father and the maternal grandmother after a mediation session January 26, 2018 with respect to the father’s access going forward. They did not adhere to the agreement. Each blamed the other.
[17] I accept the evidence of Holly Gibson (confirmed in Exhibit 12) that Vanier Children Services refused service provision the boys could have benefitted from because of the inability of both S.D. and B.G. to put the children first. The Vanier assessment of the situation squares with the independent conclusion of the Society and Dr. Mirza that the boys are not the problem in this family; the adults are the problem.
[18] The father’s access was constantly problematic after the January 2017 order, except for a brief period of time during the Fall of 2017.
[19] Ms. Gibson testified on cross-examination that she retains some hope that the father will be able to maintain a relationship with the boys through personal contact or some other form of access. However, her clearly expressed opinion is that B.G. will never be able to be an unsupervised primary caregiver. I agree with her assessment in that regard.
[20] S.D. professed unhappiness with the Society for not investigating the father’s continuing drug use. However, S.D.’s allegations about drug use were vague and she refused to give the source of her information to the CAS worker. Furthermore, there was no corroborating evidence from the children for her allegations and therefore really nothing to “investigate”.
[21] The Society’s main concern with respect to S.D. is that she has been unable and unwilling to support a relationship between the boys and their father, which the boys clearly need and want. The disdain and hostility between S.D. and B.G. is mutual and is guaranteed to put the boys in the centre of high conflict with substantial risk of emotional harm. Protracted loyalty conflict will continue indefinitely.
[22] On November 23, 2017, N. disclosed that S.D. told the boys that their father was back doing drugs. Both N. and D. asked the worker to check on whether their dad was using drugs as alleged by S.D. N. also advised the worker quite specifically that he felt pressured by S.D. not to go on visits with his dad.
[23] When the father was in hospital this Spring, the paternal grandfather J.M. took cards for the boys from their father to the boys’ school. The cards were in turn delivered to S.D. to give to the boys. S.D. says that N. received his card (which he denies) but she admitted that D. did not get his card from his father “because he didn’t ask for it”. This is but one small example of S.D.’s attitude and her determination to poison any positive relationship between the boys and their father.
[24] Information about N’s wishes and preferences, specifically that he does not wish to reside with S.D., comes from the OCL witness, Lori Cunningham, and is corroborated by the art therapist Lorie Shook, a registered psychotherapist. Her evidence was both insightful and encouraging; encouraging in its conclusion N. can benefit from a therapeutic process.
[25] The rift between the boys that is sometimes described as more than mere sibling rivalry follows the rift between the families, with N. favouring B.G. and his parents and D. favouring S.H. and her mother. N is not at all concerned that he and his brother may be separated if D. continues to live with S.D.
The Father’s Evidence and Plan of Care
[26] B.G. testified that he and S.H. were devastated by the sudden death of their infant daughter in 2009. They turned to street drugs and both became addicts. They associated with criminals and became involved in some criminal activity. Their personal relationship was marked by domestic violence. The two boys were apprehended by the Children’s Aid Society and ultimately placed with B.G.’s parents under a supervision order in 2011.
[27] I accept the evidence of the three Society workers that B.G. has been a challenging client to work with because of explosive anger issues throughout the life of the file. It was apparent, not only from the Society’s witnesses but from the testimony of B.G. himself and his behaviour in the courtroom during the trial, that he has great difficulty with emotional self-regulation. For example, he could not refrain from animated faces, hand gestures and mouthing comments in response to the evidence of other witnesses.
[28] B.G. claimed in his evidence that he occasionally uses marijuana under a medical prescription but that he has otherwise addressed his drug problems to the extent that it would be safe to now place the boys in his care. In his evidence, he outlined various community programs that he has engaged in, going back to 2013 but with a particular focus on courses he has taken in the last 18 months or so. Though his effort in attempting to get counselling and support through the Children’s Aid Society and otherwise is commendable, merely attending counselling and courses does not prove he has remedied the main concerns regarding his parental capacity.
[29] Following a five-month hospital and rehabilitation stint between November 2015 and March 2016, B.G. began attending a clinic to address drug addiction issues. For some time now, he has been on the suboxone maintenance therapy program. The program involves weekly urine tests.
[30] B.G. admitted to Society worker Jeannine Curts that he had “slipped a couple of times” with his illicit drug use, but he was vague about details and gave the impression it was long ago, not recently. He repeatedly refused to sign a consent so that the Society could independently verify his drug testing results.
[31] B.G. has been very frustrated since the order of January 2017 by what he regards as roadblocks to his expectation that the boys would be placed in his care seven months later. He has felt unsupported by the Children’s Aid Society in achieving that end and admits expressions of inappropriate anger as a result. He also sincerely believes that his occasional lapses in the use of street drugs in the last 18 months are attributable to his frustrations in this case. He says that if his boys had been returned to him, he would never have had to use street drugs.
[32] In particular, B.G. testified that his recent hospitalization in April after a drug overdose was because he felt helpless and in despair. He attributes these feelings to his cancelled access visits and lack of support from the Children’s Aid Society. He tried to explain that he had a “nervous breakdown” resulting in “a couple of drinks”. He believes someone put something in his drink, causing him to be discovered crawling around naked in his neighbour’s backyard and six weeks of hospitalization to deal with a serious infection. However, the ambulance report (Exhibit 16) reveals that B.G. admitted IV use of crystal meth to the paramedics. He restarted his suboxone program near the end of his hospital stay and was released from hospital June 3, 2018.
[33] B.G. claims that he is now faithfully following the suboxone program with daily urine tests. He says that this treatment drug makes him tired and lazy but does not affect his ability to interact with the children or attend to their needs. He does admit that he sometimes falls asleep when the children are in his care. In fact, he fell asleep during part of this trial.
[34] I do not accept B.G.’s interpretation or contradiction of the hospital records (Exhibit 16) or the clinical records from Dr. Lee’s office (Exhibit 15). The records themselves are more accurate and reliable. When confronted by the many instances when he has failed a urine test in the last year, B.G. tried to ascribe his lapses to others or to blame it all on the fact that he did not get his kids back and that he was worried about them. It is no wonder that he evaded giving any consent to the disclosure of the medical information that only came to light when the records were the subject of a summons for this trial. The report from Dr. Dulay (Exhibit 19) confirms that B.G.’s hospitalization this Spring was indeed for a bacterial infection in his bloodstream but it also specifically links that infection to B.G. engaging in IV drug use.
[35] Tab 3 of Exhibit 18 (introduced by B.G.) lists the dates of all his urine tests but does not show any results. The implication (and his testimony on examination in chief) is that they were clean tests. However, on cross-examination he admits that Exhibit 15 contradicts him in that regard. He would have known that his tests were often positive. Tab 3 of Exhibit 18 was an attempt to mislead the Children’s Aid Society and perhaps the court.
[36] The clinical records reveal 20 positive drug tests in the 17 months following the January 2017 order: February 12, 2017 (crystal meth); February 27, 2017 (crystal meth and fentanyl); March 14, 2017 (cocaine); March 27, 2017 (morphine); April 3, 2017 (crystal meth); April 4, 2017 (cocaine); April 10, 2017 (crystal meth); April 18, 2017 (oxycodone); May 9, 2017 (oxycodone); June 6, 2017 (oxycodone); June 27, 2017 (crystal meth and alcohol); August 5, 2017 (crystal meth, alcohol and morphine); August 22, 2017 (crystal meth); January 16, 2018 (cocaine); February 2, 2018 (crystal meth); February 27, 2018 (crystal meth and fentanyl); March 20, 2018 (crystal meth); March 17, 2018 (methamphetamine); April 3, 2018 (crystal meth) and April 10, 2018 (crystal meth).
[37] B.G. was hospitalized after a drug overdose in April (which Dr. Dulay euphemistically characterized as “a lapse in coping skills”) and remained in hospital until June 3, 2018. Drug screening on June 4 and 12 was negative. B.G. did not offer any updated test results when the trial resumed July 30, 2018.
[38] It is crystal clear from B.G.’s testimony and from Exhibits 15 and 16 that he has an ongoing drug addiction that he refuses to acknowledge. His denials and explanations are not plausible.
[39] If B.G. truly believes that returning his sons to his care would enable him to overcome his drug addiction, he is deluding himself. Nor do I believe that he would give up all his associations with his drug-using friends if the boys were in his care.
[40] In his trial testimony, B.G. revised his plan of care to say that the children should be returned to him six months hence so that he would have time to demonstrate that he could be drug free and arrange more suitable accommodation for them. He is on ODSP and would need to get a housing subsidy. In essence, he has conceded in his testimony that he is not able to now take the boys into his care. The boys would be left in limbo for another six months or more based on the slim hope that he will overcome his drug addiction - an addiction he has been fighting to unsuccessfully overcome during the eight years before this trial.
[41] The father’s alternative plan is that the boys would continue to reside with his parents if they could not be placed in his care.
The Evidence and Plan of Care of the Maternal Grandmother
[42] Within weeks of the boys going to live with their maternal grandmother in January 2017, she seized upon an opinion from D.’s psychologist, Dr. Mirza, questioning whether any access for the parents was in the long-term best interests of the boys. It was all the excuse she needed to delay and obstruct the father’s access.
[43] I accept from the evidence of S.D. that she did her best to take courses designed to better equip her for her role as a caregiver. Exhibit 8(b) is a report from “Attachment Consultation and Education Service” program run by C.P.R.I., the local service delivery division of the Ministry of the Children and Youth Services, dated March 27, 2018. It relates to S.D.’s positive participation in four sessions to give her better insight into D.’s behavioural difficulties related to “an early history of abuse, neglect or other traumatic life disruptions”. The report is evidence of S.D.’s commitment to accessing appropriate community resources of her own initiative. The question for the court though is whether she actually took to heart the coaching and advice that she received.
[44] S.D. is genuinely devoted to N. and D. The boys have done remarkably well at school according to the report cards for June 2017 and November 2017. In academic accomplishments, behaviour and attitude to learning, the report cards for both boys are solid evidence of their real potential for success in life. See Exhibit 27.
[45] S.D. did her best to take care of the boys’ needs. However, she kept them at the centre of the family feud by undermining the father’s access whenever and however she could, contrary to both the court order and the repeated wishes and preferences of the boys themselves. She lied to the boys about why they were not seeing their father. S.D. admits that after telling N. last November that his father had an ongoing drug problem, she also told him that it is “easy to fake a pee test” and that his dad should have had a fingernail test. S.D. testified that she believes D.’s “night terrors” are related to his visits with his father and also caused by the paternal grandparents (who have only had contact with the boys a couple of times in the last four years) without any evidence to support that belief. She told them that the Children’s Aid Society had cancelled his visits and on another occasion blamed it on the court. In truth, she was the one who cancelled the visits. She told the boys that their father was “not doing well” with his drug problems and that both their parents had drug problems. S.D. left a picture of B.G. with the school last Fall with instructions that they should call the Children’s Aid Society if he showed up at school to have any interaction with the boys even though the court order specifically provided that he could attend at the school.
[46] Following a mediation session in January 2018, a new access schedule was established, reinstating unsupervised alternative weekend access for B.G. Even telephone access proved problematic. B.G. was to call to speak to the boys on the phone Wednesdays and Saturdays according to the January 2018 mediation agreement. It did not happen. S.D. did admit that he called, but she would not allow him to talk to the boys because it was not the scheduled time.
[47] Exhibit 8(a) consists of four opinion letters from Dr. Steven Goldie dated in April and May of 2017 to the effect that each of the boys have “a history of significant mental health issues” exacerbated by interaction with their father, whom he characterizes a “destabilizing presence”. Dr. Goldie “recommends” that B.G. have only supervised access or, better yet, no access at all. I discount this opinion because it is based entirely on information from S.D. (though purportedly verified by the boys) and it does not reflect an appreciation of S.D.’s determination to undermine and eliminate the father’s court ordered access. Dr. Goldie was also apparently unaware that D.’s nightmares and the degree of friction between the boys first manifested itself when the boys were not having any contact with their father. His conclusion about cause and effect are therefore suspect. He never met B.G. or a Society worker or counsel for the boys to see if there might be another side to the story.
[48] S.D. testified that N.’s behaviour has changed over time. She says he became a very angry and depressed boy. She did say that the more she tried to talk to N., the more he distanced himself from her, running away from her home, not once but twice. Ultimately, he refused to return to her residence and the court order placing N. in her care was varied in early May 2018 to place N. in the temporary care of the Society.
[49] The relationship between N. and S.D. has deteriorated badly. Towards the end of his residency with her, they were having physical altercations as well as calling one another liars and other name-calling.
[50] The boys told their lawyer they were grounded for telling the Office of the Children’s Lawyer that they wanted to live with their dad. S.D. denied that. I do not believe her denial and accept the boys’ understanding of why they were grounded.
[51] On cross-examination, S.D. admitted that para. 20 of the Minutes of Settlement signed in January 2017 was to reinforce the basic goal of keeping the children out of the friction between the adults. She has done nothing to promote that goal; quite the opposite. As early as February 2017, without any evidence then to support the accusation, she told Dr. Mirza, “I know B.G. is using drugs”. She had made a similar allegation to the CAS worker but refused repeated requests for the source of her information depriving the Society of the ability to investigate her unsupported allegation. The week before B.G.’s scheduled access April 22, 2017, S.D. spoke to the CAS workers to advise them, “I’m not sending the boys”. She admits saying to the CAS worker, “I don’t care if I am in contempt of the order” when Holly Gibson tried to effect compliance.
[52] On cross-examination, she admitted that she “hates” the paternal grandparents, as well as B.G. It is hard to escape the conclusion that S.D.’s attitude is based on “payback”. When the boys lived with the paternal grandparents for approximately four years between 2010 and 2014, S.D. did not get to see them very often and once experienced a three-month stretch of no contact whatsoever. She was the one who reported allegations of physical and emotional abuse to the Children’s Aid Society that resulted in the apprehension of the children from the paternal grandparents in the summer of 2014. It was apparent throughout her testimony that she wants to demonize the father and his family.
[53] S.D.’s plan of care at the opening of trial was to support her daughter’s plan, placing the boys with their mother. As an alternative, she proposed placement with her and restricted access for the father.
[54] At trial, her evidence was that in anticipation of having the boys in her care beyond the term of the seven month supervision order of January 2017 she moved to a bigger home on the same street, in London. There was no mention whatsoever in her testimony of moving to British Columbia. She expanded on her request for “restricted access” for B.G. by bringing a motion during the trial for a restraining order against him, including a term that he have no contact with the boys.
[55] On the resumption of the trial July 30, S.D. presented a new plan of care whereby she would stay in B.C. with the boys. She asks for custody with no access in favour of the father or the paternal grandparents. Her request for a custody order, rather than a supervision order, would mean there would be no ongoing role for the Society. She is not sure where she would reside, but somewhere in the Okanagan Valley near a cousin and an ex-sister-in-law.
[56] The advantage of this plan is that the geographical distance and an absence of any contact with the paternal family would finally insulate the boys from the manipulation, hostility and loyalty conflict they have been subjected to within the family feud. However, the boys, particularly N., want to maintain some relationship with their father, and probably now his parents as well. Another problem is that there is no safety net for N. The prospect of him running away again and refusing to live with S.D. as he has done twice this Spring is a real possibility. Even in the last three weeks, N. has been separated from S.D. and his brother. He has been residing with persons the court knows nothing about. Though a supervision order (instead of a custody order) would keep the Society engaged (albeit through an agent) the Society can no longer trust S.D.’s word on anything. Nor do I. S.D. has demonstrated her continued disdain for this court’s orders by remaining in British Columbia with the boys beyond the brief sojourn approved by the Society. She has refused to return them and is once more in contempt of the January 2017 order and the May 4, 2018 order. Her excuse? It would cost more money to change airline tickets already purchased for a return August 23 and spending the summer in B.C. will give the boys the chance to “have fun” and get to know their deceased mother’s family. These are not reasonable or child-focused explanations, particularly when the Society is paying for N.’s airfare and S.D. herself admits she cannot keep both N. and D. in her care right now.
[57] S.D. has apparently arranged for N. to live with Starlynn Rae, a woman whose own children were apparently removed from her care in the past for seven months because of substance abuse. S.D. testified on July 30 that the boys have had to be separated because “the war [between them] has been on again”. She testified N. was angry because he had not been allowed to call his dad and then was even more angry and defiant with her after N. did talk to B.G. One fundamental flaw in S.D.’s latest plan of care is that 12-year old N. is determined to maintain some relationship with his father and S.D. is unwilling or unable to countenance that. It is not in N.’s best interest to deny him an ongoing relationship with his father. S.D.’s plan of care would continue the manipulation and conflict that will undermine N.’s security, happiness, emotional health and long-term success in life.
The Evidence and Plan of Care of the Paternal Grandparents
[58] Though J.M. is a respondent in this proceeding, he was called as a witness by counsel for B.G. He explained that he and his wife, T.M., see their role as a “backup” for the parents, offering to provide a home for the boys until the parents are over their drug issues and capable of resuming responsibility for the boys. He confirmed that after the children were removed from their home in the summer of 2014, he and his wife did not participate in the court process or assert any claims concerning the boys. He acknowledged that up until eight months ago, in December 2017, the boys had both indicated they did not want to have anything to do with J.M. or T.M. The order of January 2017 plainly states that the father is not to allow them to have access to the children. Since this proceeding was started more than a year ago, they have not initiated any motion for access.
[59] On February 27, 2018, the boys told the Society worker they wanted to see their paternal grandparents. This was the first time they had expressed such a wish in the year or so that Holly Gibson had managed the file.
[60] T.M. and J.M. both described a good relationship with the boys when the boys’ parents could no longer cope with parental responsibilities in 2010 until the removal of the boys from their home in 2014. Neither of them had any reasonable explanation for not participating in the court process from 2014 to 2017. They had no access to the boys and did not take any steps to change that. Neither of them have seen either boy since July 2014 except when their paths happened to cross briefly on three occasions: the first when their son delivered a bathtub to their backyard last year; the second when N. asked T.M. to take him to Walmart to pick up a video to watch at his dad’s home; and a final time three months ago when N. ran away and showed up on their doorstep.
[61] The paternal grandparents deny the allegations of abuse levelled against them in 2014 and say that the boys were coached and pressured to disclose false information by S.D. and S.H. Until approximately December 2017, the boys continued to say that they did not want to see their paternal grandparents. The grandparents blame that on the influence of S.D. who once told T.M., “no matter what it takes, I’ll make sure you never see those kids”.
[62] T.M. was a poor witness who turned every question on cross-examination into an argument. She was defensive and focused mainly on her own blamelessness and helplessness. However, to her credit, T.M. accepts the notion that “perception is reality”. She conceded that if the boys both believe they were mistreated by the paternal grandparents, their reluctance to have a relationship with them is, at least from the boys’ perspective, well founded.
[63] It is very concerning, however, that the paternal grandparents share their son’s perception of his drug problems. They accept that “a couple of times” he has messed up. They accept his theory that if the boys were with him he would be able to immediately discontinue illicit drug use. T.M.’s suggestion that the boys’ mother should move back to Ontario so that their son could be more involved with the boys while their mother assumes primary responsibility for parenting was fantasy, not a plan.
[64] In essence the paternal grandparents are deluded when it comes to their son’s parenting capacity and drug addiction. Furthermore, their plan of taking the boys into their care until their son is “totally clean” amounts to another experimental and temporary placement rather than a viable and realistic long-term proposal. It would also guarantee that the boys will continue to be at the centre of the friction between the adults.
The Evidence of the Children’s Wishes and Preferences
[65] The boys have had their own lawyer, Ms. Lee, since 2015. In January 2017, Ms. Lee enlisted a clinician, Lori Cunningham, to assist in determining and expressing to the court the wishes and preferences of the children.
[66] Ms. Cunningham interviewed all of the respondents, as well as the children, and conducted observational meetings. In an observational meeting in June 2017, Ms. Cunningham noted a marked “sibling rivalry” between the boys, but observed that S.D. was able to remediate their disputes in an appropriate manner. The observation meeting she conducted in January 2018 in the father’s home was also quite positive.
[67] Ms. Cunningham described meetings with the boys to explore their perception of events and their wishes and preferences in March 2017, May 2017, August 2017, December 2017, February 2018, March 2018, May 2018 and twice in June 2018 shortly before trial. It is apparent from Ms. Cunningham’s description of those interviews, buttressed by her notes made at the time, that the boys grew to feel comfortable in expressing their concerns and opening up about their feelings. The wishes and preferences of the boys have vacillated somewhat over time. For example, when Ms. Cunningham first met N. in May 2017, he expressed the wish to continue living with his grandmother S.D. and said that he did not want to see his paternal grandparents. However, in December 2017, he said that he would “not mind” seeing T.M. and J.M. In the Spring of 2018, he ran away from S.D.’s residence on two separate occasions and expressed in the strongest terms his refusal to continue living in her home resulting in a temporary order for a foster placement in May 2018, which continues today.
[68] Ms. Cunningham’s meeting with the boys December 18, 2017 is particularly telling. It reveals that the boys were quite agitated and upset because of conflicting messages and information from their father and their maternal grandmother. They felt caught in the middle and wanted answers about whether their father was or was not using drugs, and whether the information S.D. gave them about J.M. and T.M. was “a pack of lies”. It was obvious that both sides were feeding information and misinformation to the boys, portraying the other side of the family in a negative light. The boys also expressed great frustration about the uncertainty they had experienced in so many different homes with so many different caregivers. As D. expressed it, “We are like toys. They just play with us and throw us away”.
[69] On several occasions, D.’s main focus was on getting the court process over with and getting the Children’s Aid Society out of the family’s life. By March 2018, he was expressing strongly his desire to go and live with his mother in British Columbia. Like N. he said that he did not want to continue living with his maternal grandmother. In March 2018, he expressed, for the first time that he wanted to see his paternal grandparents again stating, “I forgive them. I forgave dad and mom and now I need to forgive them.”
[70] D. is quoted by the Society worker as having said “all this chaos was created by Children’s Aid”. Clearly that is a comment that comes from an adult, not a 10-year-old boy. It is likely not just a coincidence that B.G. has repeatedly said the same thing throughout these proceedings.
[71] When N. ran away the first time in February 2018, he told Ms. Cunningham that he wanted to go and live with his father and he wanted to renew contact with his paternal grandparents. He also wanted to see the court order to see for himself if it was not being followed. N. ran away for the second time in May 2018. This was precipitated by a fight with S.D. stemming from her taking D.’s side in a dispute between the brothers.
[72] The subsequent discussion with Ms. Cunningham revealed N.’s preoccupation and concern about his father’s hospitalization. N. believes that his father was hospitalized this Spring because of “stress”. That is his father’s version. The hospital admission record clearly shows that he had a relapse in his drug recovery and an infection caused by an intravenous injection and overdose. N. did not know the true reason for his father being hospitalized but thought it was “because of his anger”. N. told Ms. Cunningham he wanted to live with his father in part because “I can calm him down by getting him to focus on good thoughts”. Back on November 23, 2017, N. had expressed to the CAS worker his view that he could help his father “snap out of it” and deal with drugs and his anger. The worker replied, appropriately, that it was not N.’s job to solve his dad’s problems.
[73] In two meetings with N. in May 2018, N. expressed to Ms. Cunningham his desire to be a witness or speak to the judge. He told Ms. Cunningham that his father had spoken to him many times about that and that his father was working on making it happen. He also explained to Ms. Cunningham that his change of heart in wanting to see his paternal grandparents was based on having talked to his father about them and “about what really happened in 2014”.
[74] T.M. and J.M. told Ms. Cunningham that their son was now substance free and a good father in expressing their view that the children should be returned to him. They were quite hostile in their comments regarding the Children’s Aid Society. J.M. indicated a wish to sue the Society.
[75] At the time of trial, both boys were greatly looking forward to spending time with their mother in British Columbia in the summer. Both boys were very upset by the prospect of maybe being placed in foster care after the trial.
[76] The latest residential preferences expressed by the boys before the commencement of the trial were at odds with one another. N. expressed the wish to live with his father. His second choice was to live with his mother and his third choice was to be in a foster home, “hopefully with someone nice” until he is sixteen, when he would be old enough to move in with his father. He expressed that, “dad is way up there, 10 spaces, then mom”. He was clear in saying he did not want to live with S.D. and was indifferent as to whether he and his brother resided in separate places. He was very angry with S.D. in the meeting with Ms. Cunningham on June 14, 2018 over the fact that S.D. had told him his father had relapsed in his drug use and N. considered that to be a lie. D.’s wishes and preferences, on the other hand, were clearly that he wanted to be in his mother’s care in British Columbia. That was a strong preference, with his second choice being to live with his father or to stay with S.D. until either his mother or father were “ready” to be his parent again.
[77] It is apparent from Ms. Cunningham’s evidence that the boys long to be settled. Their expressed preferences for placement with either of their parents rested on a foundational belief that their parents have, or would, overcome their problem with drugs.
Analysis and Disposition
[78] A fundamental goal of the CYFSA, and of its predecessor the CFSA is to enable parents and extended family to receive the services and support they need to safely raise children. In child protection proceedings, a child should only be removed from his or her family when the child’s best interests, protection and wellbeing make it necessary. An order for extended society care, formerly known as crown wardship, is a disposition of last resort. However, in some cases parents and extended family simply run out of chances and run out of time in establishing their ability to safely raise a child. This is one of those cases.
[79] Each respondent in this case, with the exception of the mother, has caused harm to these boys through malice, insensitivity and ignorance. There is no doubt that they all love both boys dearly, but there is also no doubt the boys would be gravely at risk of harm if placed with any of them. It is remarkable that the boys have done as well as they have, given the tumultuous circumstances of their lives up to now. The boys have shown great resilience to instability and conflict, but their strengths should not be tested any further.
[80] B.G. is angry and volatile. His emotional self-regulation is closer to that of a child than an adult. He is a drug addict who professes to have his addiction under control, but the clinical records prove that to be false. B.G. not only lies about his ongoing drug use, he refuses to accept responsibility for it. Instead he blames the Children’s Aid Society, the maternal grandmother and his friends. His “solution” is to give him day-to-day custody of his sons so that, according to him, he would have an added incentive to stay clean and sober. There is no realistic possibility of B.G.’s ability to enter into a trustworthy or cooperative relationship with the Children’s Aid Society and a supervision order would be a constant battleground to which the boys would continue to be exposed.
[81] The maternal grandmother, S.D., can recite the jargon that she picked up from the sessions she attended at Merrymount, but it is not apparent she actually learned anything of value. Her overarching goal from the moment the boys were placed with her 18 months ago has been to shut the father out of his children’s lives, notwithstanding the bond they have with him. She seized upon every excuse to rationalize and justify repeated non-compliance with the court order for the father’s access. She sabotaged the ability of the father (and the underlying purpose of the January 2017 order) to achieve meaningful friction-free access. She proved to be ungovernable and regarded the Society as an opponent. Her versions of her conversations with the boys do not ring true. Rather they seem artificial and contrived. There is little doubt in my mind that N.’s animosity towards her is well founded and he has no reason to believe she speaks the truth about the other side of the family.
[82] The paternal grandparents’ plan of care is also devoid of merit. They have had no meaningful contact with the boys in the last four years. Their proposal to temporarily take on responsibility for the boys while their son rehabilitates himself and finds suitable accommodation demonstrates a failure to understand that the time for experiments is over and that these boys need something permanent and stable.
[83] This trial is about finding a viable long-term solution for two boys whose lives up to now have been nothing but chaotic, uncertain and riddled with strife between their parents and grandparents. There can be no stability for the boys if they are placed with either B.G. or S.D. Even access orders in their favour will be problematic.
[84] If N. were to be placed with S.D., it is only a question of time before he runs away again. She has not even been able to keep him in her home or her care in British Columbia since his mother’s passing.
[85] This raises the issue of whether different dispositions ought to be made for each child. D. has expressed the desire, sometimes at least, to remain in S.D.’s care. It seems clear he would prefer that to foster care, unlike N. who has acknowledged that foster care may be his only option for the next few years. There is less friction between S.D. and D. than between S.D. and N. D. seems less determined than his brother to maintain a relationship with his father. According to S.D. and the boys themselves, they fight with one another often and hard. N. has indicated he would not mind living somewhere without his younger brother and D. has indicated he would like to remain with S.D. even if his brother does not reside with them. However, notwithstanding the friction between the boys, I am mindful that they are, for each other, the one person who has been a constant in their life. Perhaps they fight with one another because it is the safest outlet for the fear and anger generated by the traumatic and unfortunate chaos of their life the last eight years. Boys this age may not presently understand the importance of their brother. I think it would be wrong to overemphasize their current wishes. In particular, I think that D.’s loss of a meaningful relationship with N. or with his father would be more harmful to his wellbeing over the next six or eight years than a foster placement here in the London area where both boys have roots.
[86] The long-term best interests of the boys requires at least an opportunity to keep them together in a home where they are also insulated from the high conflict that has been front and centre in their lives since 2010.
[87] An order for extended society wardship will not necessarily result in an adoption of either child. It may result in the boys experiencing more than one foster home placement over the next six years or so, or it may result in their placement in different foster homes, but it is nevertheless the least detrimental alternative. It will ensure access to appropriate counselling or therapy that is non-partisan and child-focused.
[88] With respect to access, there is a statutory test to consider under s. 105(5) and (6) of the CYFSA. Before making any order for access the court must be satisfied that it is not only in the best interests of the child but meaningful and beneficial to the child. The purpose of any access order following an order for extended society care is not to lead into a reunification of the child with the person to whom access is granted. The purpose of an access order following an order for extended society care is simply to provide a way for the child to maintain a connection to a family member to the extent it is beneficial to the child. Minimal access, say once a month, may be enough to avoid estrangement. In other cases, frequent access may continue a healthy, risk free parent/child bond. In this case it is difficult to predict whether B.G. and S.D. will be able to accept having a limited role in the care and upbringing of the boys. I am loathe to make any specific access order in favour of either that could be used as an opportunity to lobby the boys, or to interfere with or undermine the success of a foster placement by pursuit of his or her own agenda. I think it is also important to listen to the wishes of the boys on an ongoing basis regarding access, but to vest the decision making in that regard with the society who will also have input and feedback from any foster parent.
[89] An order that is silent as to access does not foreclose the Society exercising its own discretion in arranging and facilitating access. In this case, it is most appropriate to leave the question of access to the Society’s discretion.
[90] An order is therefore granted for extended society care, without granting any respondent access but without any prohibition on access. The order will also provide that if the boys are not residing together they shall each have a right of reasonable access to the other.
“Justice D. R. Aston” Justice D. R. Aston Released: August 3, 2018