Court File and Parties

Court File No.: FC-14-1560 Date: 2018/10/18 Superior Court of Justice - Ontario

Re: Children's Aid Society of Ottawa, Applicants And K.C, Respondent mother S.C. Respondent father T.P-C. Respondent maternal grandmother

Before: Shelston, J

Counsel: Ms. MacDougal, counsel for the Applicant Ms. Robins, counsel, for the Respondent mother Mr. Marcovitch, counsel for the Respondent maternal grandmother Ms. Barron, counsel for the children

Heard: October 12, 2018 (at Ottawa)

Endorsement

[1] The Children’s Aid Society of Ottawa (“Society”) seeks an order that the children D.R., born […], 2008, and D.J., born […], 2008, be found in need of protection. The Society, based on an Amended Application dated September 11, 2018, seeks an order that the child D.R. be placed jointly with her mother, her maternal grandfather and his wife and that the child D.J. be placed with his mother for a period of six months subject to the supervision of the Society.

[2] The Society, with the support of the mother, seeks a temporary order that the child D.R. be placed jointly with her mother, her maternal grandfather and his wife and that the child D.J. be placed with his mother.

[3] The maternal grandmother was granted party status on October 4, 2018. She seeks an order that the children be placed in her care subject to the supervision of the Society.

[4] The father S.C. was served with both the original Protection Application and the Amended Protection Application. He has not participated in these proceedings.

[5] The eldest child D.R., 10 years of age, was diagnosed with ADHD, ODD and anxiety. After the completion of a psychological-educational assessment, the child was diagnosed with a learning disability with verbal reasoning and attended a section 23 Crossroads school program from June 2017 to June 2018. She is currently attending a school in Ottawa.

[6] The youngest child D.J., 9 years of age, has no identified special needs and also currently attends a school in Ottawa.

Background

[7] The Society has been involved with the family since December 2012 due to various concerns about the mother’s mental health, addictions and domestic violence with a previous partner. The children were removed from the mother’s care on March 26, 2013 when D.R. was placed with the maternal grandfather and his wife and D.J. was placed with his maternal aunt.

[8] From March 2013 to March 2014, the mother made little progress attending programming requested of her and was evicted from her home.

[9] D.J. was returned to the mother’s full-time care on July 17, 2014 under a six month supervision order and on December 4, 2014, D.R. was returned to the mother under a six month supervision order.

[10] By August 2015, the supervision orders were terminated and the children placed in the care of the mother pursuant to section 57.1 of the Child and Family Services Act. At that time the mother entered into a Voluntary Service Agreement based on concerns by the Society that the mother was using drugs and was unable to manage the children.

[11] Between May 2016 and June 2018, child protection concerns were raised regarding allegations of domestic violence, the mother’s mental and physical health, the mother’s neglect of the children’s needs, allegations of physical abuse and the mother’s inability to manage D.R.’s special needs. During this period of time, the situation would stabilize then regress to the previous situation.

[12] There were incidents of adult conflict and domestic violence with the mother and her partner who would separate and subsequently reconcile. The mother had episodes where she had panic attacks to the point where her anxiety prevented her from using public transportation. The school indicated that D.R.’s hygiene was suffering and that the child smelled of cat urine and would wear the same clothes for extended periods of time and that these clothes were dirty.

[13] The mother was struggling with taking medication and her use of alcohol.

[14] In April 2018, the maternal grandfather and his wife met with the Society worker and the mother to discuss addressing the mother’s challenges in caring for her children. The mother’s mental health was deteriorating as evidenced by the poor state of the home, her sending the children away most weekends and her use of alcohol. The mother admitted that she argued and yelled with her partner in front of the children. The mother was not prepared to discuss treatment and felt she could stop drinking on her own. At this time, the parties discussed the plan where the mother would live closer to her father and his wife to have daily family support and that they could provide her with respite from her children.

[15] By May 2018, D.R.’s behaviour at school was regressing.

[16] On June 11, 2018, the Society worker attended at the mother’s home to pick up the mother and D.R. to attend a meeting at the school. The worker observed that in the home, there was a strong smell of urine, the stairs were covered in animal hair and the kitchen was covered in dishes. The mother admitted to the worker she did not have food for breakfast or lunch for the child.

[17] On June 13, 2018, the worker received a message from the child’s teacher stating D.R. came to school wearing the same clothes for three days in a row.

[18] On June 15, 2018, the Society worker had decided that the mother and her partner had to sign a Voluntary Service Agreement to address the concerns. At that time, the Society worker proposed that D.R. be placed in the care of the maternal grandfather and his wife. The mother refused.

The Apprehension

[19] On July 1, 2018, the mother asked the maternal grandmother to pick up the children and care for them. They were returned to the mother’s care on July 10, 2018.

[20] On July 13, 2018, the Society worker met with the mother who shared that she was struggling with her mental health, felt overwhelmed, was having anxiety attacks, had no alternate child care for the children while she worked and that, when the children were away, there had been a serious incident with her partner who was intoxicated, smashed her coffee table and put holes in the walls of her residence.

[21] The worker received information on July 16, 2018 that the mother’s partner was present in the home, that D.R. had a very serious mental health breakdown at a summer camp on July 26, 2018 and that D.R. disclosed to a doctor at CHEO that her mother had hit her.

[22] On July 31, 2018, the worker met the children at the maternal grandmother’s cottage. During that interview, D.R. disclosed that she did not want to go back to her mother’s home, that her mother hit her, that the home was dirty and smelled bad and that her mother used foul language against her. In her meeting with the youngest child D.J., he advised that the mother, when mad, will scream, swear and throw things at his sister. He also witnessed the mother’s partner punching holes in the walls and breaking down doors.

[23] On August 1, 2018, the worker met with the mother, the maternal grandfather and his wife and advised that the Society would be applying for a six month supervision order with the children to remain in the care of the maternal grandmother based on their concerns.

[24] On August 2, 2018, the Society filed a protection application seeking to place both children with their maternal grandmother for a period of six months subject to the supervision of the Society.

[25] On August 3, 2018, Justice Ryan-Bell made a temporary order on a without prejudice basis placing the children with the maternal grandmother pending the hearing of a care and custody motion.

Events Post Apprehension

[26] On August 3, 2018, the Society worker met with the mother and the step-grandmother following the court appearance. At that time, the mother advised that she planned on moving to Morrisburg to be closer to her father and his wife. At that time the mother acknowledged that D.R.’s special needs were challenging and that she proposed that the child be placed in the care of her father and his wife but that D.J. be returned to her care.

[27] Over the next 27 days, the Society worker attended at the mother’s home in Ottawa and observed a significant improvement in the condition of the home in that it was clean and organized, the mother had replaced the flooring on the children’s bedrooms and cleaned out all of the clutter. At that time the mother advised the Society worker that she had found a new home in Morrisburg to move to as of September 1 and that she would be having daily support from her father and his wife.

[28] The Society worker advised the mother that she still had to address other issues such as her mental health, addictions and her ability to maintain a stable home environment.

[29] On August 16, 2018, the Society worker spoke with the mother’s family doctor who confirmed that the mother was receiving additional medication and that she had an appointment to see a doctor at the Royal Ottawa Hospital on September 17, 2018. The doctor advised that the mother appeared more motivated to pursue treatment for her mental health.

[30] From August 21 to 27, 2018, the children spent the week with the mother, her father and his wife, which went well.

[31] On August 30, 2018, the Society worker met with the mother and her stepmother who advised that since the mother was moving to Morrisburg, the mother was proposing a plan where she would care for D.J. subject to the supervision of the Society and that the maternal grandfather, his wife and the mother would jointly care for D.R. but that the child’s primary residence would be with the maternal grandfather and his wife. The mother would see the child during the week and on weekends. Further, her father and his wife would be responsible for the child’s medical and academic needs.

[32] At that meeting the mother shared that she had completed an intake for a substance abuse program offered through the Cornwall Hospital and was waiting for the start date of the program.

[33] In addition, the mother advised that her relationship with her partner was over and he would not be relocating with her.

[34] On September 10, 2018, the Society worker attended at the mother’s three-bedroom townhouse in Morrisburg which she observed to be clean and organized. The mother showed that she had food for the children and that the bedrooms were set up. The mother indicated that she was beginning a relapse prevention program through the Cornwall Hospital that week and shared that she had supports in the neighbourhood as well as the support from her father and his wife.

[35] On September 10, 2018, the Society worker also attended at the home of the maternal grandfather and his wife. They indicated that they were prepared to care for D.R. on a long-term basis with the plan being to care for the child during the week and that the child have visits with the mother during the week and on weekends. The worker observed that they had an appropriate space for the child to sleep in their home.

[36] The maternal grandmother opposes that the children should be placed in the care of the mother, maternal grandfather and his wife. She indicates that the children are doing well and are thriving in her care and that they are doing well in school and enrolled in extracurricular activities.

[37] In July 2018, the Society worker asked the maternal grandmother if she was prepared to take care of the children for a six month period to allow the mother to address her significant mental health, addiction and behavioural issues. She agreed because she felt that it was necessary to protect the children from the harm that was being caused by the mother’s long-standing issues.

[38] On September 11, 2018, the Society amended its application seeking an order that D.R. be placed jointly with the mother, maternal grandfather and his wife and that the child D.J. would be placed in the care of the mother for a period of six months subject to the supervision of the Society. Access to the father would be at the Society’s discretion.

[39] The maternal grandmother was shocked when the Society changed their position and supported the current plan advanced by the mother, the maternal grandfather and his wife.

Legislative Framework

[40] Sections 94(2) and 94(4) of the Children, Youth and Family Services Act provide the legal test to be applied for a temporary order for care and custody:

94(2) CUSTODY DURING ADJOURNMENT-Where a hearing is adjourned, the court shall make a temporary order for care and custody providing that the child,

a. remain in or be returned to the care and custody of the person who had charge of the child immediately before intervention under this Part;

b. remain in or be returned to the care and custody of the person referred to in clause (a), subject to the Society’s supervision and on such reasonable terms and conditions as the court considers appropriate;

c. be placed in the care and custody of a person other than the person referred to in clause (a), with the consent of that other person, subject to the Society’s supervision and on such reasonable terms and conditions as the court considers appropriate; or

d. remain or be placed in the care and custody of the Society, but not placed in,

(i) a place of secure custody as defined in Part IV(Youth Justice), or

(ii) a place of open detention as defined in that Part that has not been designated place of safety.

94(4) CRITERIA - The court shall not make an order under clause (2)(a)(b) unless the court is satisfied that there are reasonable grounds to believe that there is a risk that the child is likely to suffer harm and the child cannot be protected adequately by an order under clause 2(a) or (b).

[41] Under subsection 94(4) of the Children, Youth and Family Services Act, the burden of proof is on the Society to satisfy the Court that there are reasonable grounds to believe that there is a risk that a child is likely to suffer harm and the child cannot be adequately protected by an order returning the child to parental care with or without an interim supervision order.

[42] The legal test applicable on a care and custody hearing is the test set out by Blishen J. in Children’s Aid Society of Ottawa-Carleton v. T. at para. 10:

The Children’s Aid Society must establish, on credible and trustworthy evidence, reasonable grounds to believe that there is a real possibility that, if the child is returned to his or her parents, it is more probable than not that he or she will suffer harm. Furthermore, the Society must establish that the child cannot be adequately protected by terms and conditions of an interim supervision order to the parents.

[43] In Children’s Aid Society of Toronto v. L.P., 2010 ONCJ 320, the court held:

A court must make an order that is the least disruptive placement consistent with the adequate protection of the child in accordance with section 1(2) of the Child and Family Services Act. The degree of intrusiveness of the Society intervention and the temporary protection ordered by the court should be proportional to the degree of risk.

[44] In Catholic Children’s Aid Society of Toronto v. J.O., 2012 ONCJ 269, 20 R.F.L. (7th) 471, the degree of intrusiveness of the Society’s intervention in the temporary protection order by the court should be proportional to the degree of risk.

[45] Under section 1(1) of the Children, Youth and Family Services Act, the paramount purpose of the legislation is to promote the best interests, protection and well-being of the children. As part of that purpose, one of the factors that a court is to consider is the least disruptive course of action that is appropriate to help children.

Analysis

[46] All parties agree that the mother had charge of the children immediately before the intervention of the Society. All parties agree that there is a risk if the children are returned to the mother.

[47] The issue is whether or not the children can be adequately protected by a supervision order.

[48] The maternal grandmother submits that the plan proposed by the mother in conjunction with the maternal grandfather and his wife may be valid but is premature. The maternal grandmother submits that the issues that gave rise to the apprehension are long-standing and cannot realistically be addressed in such a short period of time from the date of the apprehension on July 31, 2018 to October 12, 2018.

[49] The maternal grandmother’s position is that the mother had signed a Voluntary Service Agreement on June 15, 2018 which she failed to comply with. Further, between January 2015 and August 2018, the same issues have been raised over and over with the mother without any serious change. Further, she submits that changing the children’s schools may have a serious negative effect on both children but especially D.R., who all parties concede has special needs.

[50] By June 2018, the Society had serious concerns about the mother’s mental health and her ability to meet the needs of the children. Even after signing a Voluntary Service Agreement, the mother’s mental health continued to deteriorate, the dysfunctional relationship with her partner continued, she could not adequately care for D.R’s challenges and she did not address her addiction issues.

[51] At the time of the apprehension, the Society’s concerns were the mother’s mental health, her abuse of alcohol, her inability to manage D.R.’s special needs, her failure to provide D.R. with her medication as well as the serious issue of domestic violence between herself and her partner. Further, the mother had not been able to demonstrate a consistent ability to meet the children’s basic needs, such as providing appropriate supervision at home, sending them to school prepared and maintaining their hygiene.

[52] Soon after the child was apprehended, the mother undertook actions to address the concerns raised by the Society. As of the date of the hearing of this motion, the mother has done the following:

(a) ended her relationship with her partner and confirmed he would not be moving to Morrisburg; (b) moved from Ottawa to a clean three-bedroom townhouse which has separate bedrooms for the children; (c) is no longer working and is receiving Ontario Works benefits as well receiving financial support from the maternal grandfather and his wife; (d) is taking medication for her anxiety and depression; (e) is addressing her mental health issues by pursuing an appointment with the psychiatrist. The scheduled appointment in September 2017 had to be rescheduled through no fault of the mother to a date in November; (f) is undertaking counseling at the Cornwall hospital two times per week; (g) is attending Alcoholics Anonymous two times per week; (h) has retained a new family doctor for her and the children with an appointment scheduled for November 21, 2018; (i) will have financial and emotional support from her father and his wife to assist her in the care of D.J.; (j) has a joint plan between herself, her father and his wife, who is a pediatric nurse, whereby her father and his wife will care for D. R. on a full-time basis and ensure that she receives her medication; and (k) has made arrangements for the local school board to ensure that D.R. receive the significant supports currently in place in the school in Ottawa to address her special needs.

[53] Where in the past the mother had failed to address the issues causing her children to be in need of protection, I find that the mother has shown insight in that she has acknowledged her issues from the past and she is now taking remedial steps to address past issues. The mother acted responsibly when she asked the maternal grandmother to care for the children in early July because of her inability to address their needs. The mother asked the assistance of her mother to care for her children despite the strained nature of their relationship.

[54] The Children, Youth and Family Services Act mandates the children should be returned to the parent in whose care they were prior to the Society’s intervention if the risk that the children may suffer harm can be adequately protected by a supervision order. The Children, Youth and Family Services Act’s objectives are to maintain the integrity of the family and to permit early intervention and early assessment to assist parents in raising their children.

[55] With respect to the maternal grandmother’s fears that too short a time has elapsed since the apprehension to realistically believe that things have changed, I find that the situation that existed at apprehension and today are completely different. I find that the mother is no longer residing with her former partner, is addressing her mental health and addiction issues, has proper accommodations with food for the children and has the support of her father and his wife to jointly put a plan together to care for D.R.

[56] In the past, the mother has not taken remedial steps and allowed the situation to require the intervention of the Society. I find that the plan being presented, which actively involves her father and his wife, adequately addresses the risk of harm to these children. That being said, the mother must realize that any future breaches of this order may have very negative repercussions regarding her continued care of her children. There are many conditions that form part of the supervision order being requested by the Society. The mother, her father and his wife must adhere to all of those conditions at all times.

[57] I have also considered the children’s wishes. D.J. has indicated a preference to return to live with his mother while D.R. has provided contradictory statements about living with her mother, her maternal grandfather and his wife or continuing to live with the maternal grandmother. The views and preferences of the children are an important factor to consider in any decision regarding their care. Counsel for the children met them on three separate occasions, being September 11, September 22 and at school on October 10, 2018. She advised that D.J.’s views are consistent and clear that he wishes to live with his mother. She advises that D.R. now indicates that she does not want to advise the court of her views and preferences. In the past she has been adamant that she wishes to remain with the maternal grandmother. However, counsel for the children advises that D.R.’s views and preferences are not independent and that the child is being influenced by the maternal grandmother so that little weight can be placed on D.R.’s views and preferences.

[58] In this case, D.R. is 10 years of age with special needs and there is evidence that she has been influenced by the maternal grandmother. In the circumstances I will afford little weight to her views and preferences.

[59] With respect to D.J., he is 9 years of age and has been consistent in his views and preferences in that he wishes to live with his mother. Based on his young age, I have considered his views and preferences as a factor in my decision.

Disposition

[60] I order that D.R. is placed in the joint temporary care and custody of her mother, the maternal grandfather and the step-grandmother subject to the supervision by the Society pending disposition of the application with the conditions set out in the Notice of Motion at Tab 7 of the Continuing Record.

[61] I order that D.J. is placed in the temporary care and custody of his mother subject to the supervision by the Society pending disposition of the application, with the conditions set out at Tab 8 of the Continuing Record.

[62] I order that access to the children by the natural father shall be at the discretion of the Society as set out in the Notice of Motion at Tab 7 and 8 of the Continuing Record.

Shelston, J Date: October 18, 2018