Court File and Parties

Court File No.: 464/15 [Perth] Date: November 9, 2018

Ontario Superior Court of Justice

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT

In the Matter of the Child and Family Services Act, R.S.O 1990

Between:

Family and Children’s Services of Lanark, Leeds and Grenville, Applicant And: T.R., Respondent S.G., Respondent

Counsel: Nicola Edmundson, for the Family and Children’s Services of Lanark, Leeds and Grenville Cynthia Squire, for T.R. Ralph Lee, for S.G.

Heard: November 6, 2018

Before: The Honourable Mr. J. M. Johnston

Reasons for Judgment

Ruling:

[1] The Family and Children’s Services of Lanark, Leeds and Grenville brought a motion within its status review application to place the subject children, H.R.R., born […], 2014, S.J.G, born […], 2016 and M.T.G., born […], 2017 in their temporary care and custody. Mother, Ms. T.R. opposes the Status Review Application and the motion. Father did not file any material at this motion but supports Mother’s position.

Background:

[2] Mother of the three children in question is Ms. T.R., Mr. S.G. is the father. The Society has been involved with this family on an ongoing basis since September 25, 2011.

[3] Ms. T.R. also has three other children, who were the subject of prior Child Protection proceedings. Those children are all in the care of their respective father under a Child Protection custody Order. Ms. T.R. has a right of supervised access, which she is not exercising. Mr. S.G. has supervised access to them as set out in the CFSA Court order.

[4] Ms. T.R. has had an extensive history with the Society, due to chronic neglect of her children’s needs. Over the years of CAS involvement, Ms. T.R. has struggled to ensure that she has a stable, safe home and that she is meeting the children’s medical and developmental needs. At times she has been able to engage with service providers, but has not been able to maintain her progress.

[5] The child H.R.R. was apprehended from his mother’s care and spent 18 months in Society care. The child was returned to his parents’ care initially by way of an interim order on August 25, 2016, followed by a final order of supervision, made on consent, dated November 10, 2016.

[6] On January 11, 2018 an interim order of supervision was granted in relation to the two children, S.J.G. and M.T.G. On April 12, 2018 S.J.G. and M.T.G. were found in need of protection and a final order of six months supervision was granted to Ms. T.R. and Mr. S.G.. On April 12, 2018 a final order of six months supervision to Ms. T.R. and Mr. S.G. was granted regarding the child H.R.R.

[7] According to the Affidavit of Society worker, Ms. Porter dated September 27, 2018, the Society has made many attempts to support the parents to care for their children. She states she has provided the parents numerous tangible items such as food, clothing bedding, cleaning supplies and hygiene products. In the last two years the worker arranged for the family to be involved with numerous supports from the community to help educate the parents on child development and parenting issues.

[8] Ms. Porter states that from August 2016 to April 2018 she attended the family home primarily unannounced on a weekly basis and since April she has attended on a minimum bi-weekly basis. At each home visit she has advised the parents of tasks they needed to accomplish to ensure the needs of the children were met for their safety, care, well-being and optimal development.

Society position:

[9] The Society position is that there has been and continues to be significant child protection concerns including: lack of physical care of the children (they often appear dirty), lack of routine and child focused environment for the children, unhygienic state of the home with safety risks, lack of supervision that places the children at risk, domestic violence and adult conflict, criminal activity and the parents requiring continued prompting by the Society to ensure the children receive medical, dental and developmental services. The Society argues that the Supervision Order has not mitigated the concerns. Further, the parents have not complied with many the terms of the orders. There is alleged to be ongoing parental conflict and exposure of this to the children, ongoing criminal activity by father, failure to engage in services and to meet basic needs of the children.

[10] Ms. T.R. is again pregnant. She has not followed through with prenatal care. Her doctor, Dr. Wang has expressed concern about mother’s ability to parent and her ability to sustain stability.

[11] Ms. T.R. was served by the Society with its Status Review Application and motion on September 27, 2018. The Application seeks an Order of extended society care of the children. The motion is the motion that is now before this court. The grounds for both the Application and motion obviously rely on events that have occurred up to the date of service.

[12] On the day the Society workers attended the family home to serve the documentation, the home was in bad condition, there were foul odors of possibly urine or garbage. The child M.T.G. was seen in her playpen, her diaper was full with urine and was sagging, she was dirty: her knees, legs, feet and hands were black with dirt. S.J.G. was upstairs napping, his diaper was full of urine and there were pimples and dirt\food on his face. The worker noticed a baby bottle in the bedroom with curdled milk. There was also a curdled bottle in the bathroom sink. Mr. S.G. was asleep in the living room. When he awoke both he and mother became agitated and escalated their behavior, engaging in swearing and yelling in the presence of the children. Father yelled at one of the workers calling her a “fucking bitch” and told her to “go die-crawl in a hole of something”, “you can’t fucking take pictures” [the worker was taking photographs of the condition of the children].

[13] On September 28, 2018, mother called Ms. Porter and advised that she and the three kids had moved in with Ms. L.D. (a distant cousin) and her husband and their five children in Smiths Falls. Mother conceded to the worker that “things had gone downhill” in her situation. Ms. T.R. minimized father’s behavior from the day before.

[14] Ms. L.D. advised the Society she is willing to help her cousin and work cooperatively with the Society and expressed she did not see Mr. S.G. as a support to Ms. T.R. and that she needed to be away from him to clear her head. L.D. advised that S.G. is not allowed in her home.

[15] On October 11, 2018 Mr. S.G. advised Ms. Porter ‘in confidence’ that Ms. T.R. did not want the Society to know, but that he and she continue in their relationship and he sees the children outside Ms. L.D.’s home several times a day and walks H.R.R to and from school as he has not had bus transportation arranged. On October 25, 2018 Ms. Porter found Mr. S.G. outside the home of Ms. L.D. talking with Ms. T.R. Ms. T.R. told the worker she had told S.G. to leave.

[16] Ms. T.R. states that since she left Mr. S.G. and moved into Ms. L.D.’s residence that is has had little contact with him. She states she is committed to the separation.

Issue:

[17] The issue to determine on this motion is whether the Society has met its onus of establishing on the balance of probabilities that the best interests of the children “require” a change in their care and custody, pending hearing of the Society’s Status Review application.

Section 113 (8) of the Child, Youth and Family Services Act, 2017 provides:

8. If an application is made under this section, the child shall remain in the care and custody of the person or society having charge of the child until the application is disposed of, unless the court is satisfied that the child’s best interests require a change in the child’s care and custody.

[18] Accordingly, in the case at bar, the three children shall remain in mother’s care pending outcome of the Society Status Review Application unless the court is satisfied that the children’s best interest require a change in the care and custody.

Analysis:

[19] I am satisfied on the Affidavit evidence of Ms. Porter that both parents have failed in large part to follow through on many of the requirements of the existing supervision Order. Up to the date the Application was served, I find the Society has demonstrated a strong case in support of their position, namely: during the current supervision Order, the parents have not been able to meet the children’s needs, demonstrated by neglect, lack of supervision and failing to ensure the children’s participation in community and medical services\appointments. The issue, however, is whether or not the changes mother has enacted since being served with the Application are such that the children’s best interests are now being satisfied.

[20] The Society in its Factum acknowledges that “since being served with the court documentation Ms. T.R. has engaged again with some community supports. The concern is that Ms. T.R. does not have the internal motivation to accomplish these tasks on her own but requires the external motivation of CAS involvement and the court application to address the things that she should do as a parent without constant prompting. The parents have clearly demonstrated that they do not have the capacity to meet the needs of their children for more than short periods of time.”

[21] Ms. Porter in her November 2, 2018 Affidavit has noted improvements in mother’s care of the children and the conditions of the children. Ms. Porter noted at paragraph 25 the : “overall Ms. L.D.’s home is in much better hygienic and safe state than Ms. T.R. kept her previous home and Ms. L.D.’s children’s rooms are beautifully decorated for her children. This is a welcome space for H. and S. who share a room with Ms. L.D.’s 9 year old daughter.” Porter also notes that Ms. L.D. appears ‘to be a good role model for Ms. T.R. on keeping a home clean, organized and equipped and ensuring children are clean. H., S. and M. are observed to be clean in this home and dressed in day clothes at all visits.”

[22] Ms. T.R. has since October 11th given her worker almost daily text updates on the tasks she has addressed. At paragraph 27 of the Affidavit Ms. Porter outlines the tasks Ms. T.R. has recently accomplished, including: resumed taking her children S. and M. to a play group, October 15 th she took H. for his immunizations; October 16 th she recommenced prenatal care with Dr. Wang, October 17 took H. to the optometrist, she took S. to a dental appointment with Dr. McPhee October 22, October 23 she attended an intake session to commence individual counseling with Ms. Wright at the Rideau Community Health Center, but says she did not qualify, October 29 met with Ms. Janice Dupuis counselor from Interval House outreach.

[23] Ms. L.D. in her sworn Affidavit dated November 1, 2018 outlines a number of changes that she has observed in Ms. T.R. over the past month. Ms. L.D. indicates she has helped Ms. T.R. and will continue to do so. Ms. L.D. states at paragraph 14 of her affidavit: “I have supported T. over these past few weeks by driving her to appointments when I can, or taking her to do errands. We spend a great deal of time together and I am noticing a good change in T. and her children, especially I have seen a positive change in H.’s behavior. H. can be challenging to parent, but T. is doing well with meeting his needs and dealing with his outbursts.

[24] Ms. L.D. notes that “T. is very hands on with all of her children. The children are well looked after, clean well fed and follow a good schedule.” At paragraph 18 she states: “T. has worked very hard since September 28, 2018. She has gotten H. to his appointments with all of his doctors, followed up on booking referral for his x-ray and his teeth. All the children have seen Lori Ann Glen. S. is on a waiting list for Language Express, and M. is seen by Erin Henson.”

[25] According to Ms. L.D., the children are settled into their new home and doing well.

[26] Upon review of all of the Affidavit evidence, I conclude that Ms. T.R. has made very positive changes in her life and the children’s lives. She has finally separated from her partner, whom she alleges was abusive. Mr. S.G. told the worker they in fact secretly continue to meet. This is not verified by Ms. L.D.. Mr. S.G.’s evidence is dubious and I treat it with caution. In her new home Ms. T.R. has provided a clean safe place for the children to live. She is now attending to their medical needs. Most importantly Ms. T.R. has a very positive role model to follow daily in the home. I have no doubt that Ms. T.R. needs significant assistance.

[27] The Society is not wrong to question whether or not Ms. T.R. will or has the capacity to continue to follow through on the various positive steps she has taken. Ms. T.R. does not have a good track record of providing the children with continued stability.

[28] However, the recent changes are very positive and a break from the past. There is reason to believe that Ms. T.R. not only can, but will, continue on her current path. The home she and the children now live in is undoubtedly crowded and is not be a long term solution. However, the issue confronting this Court is the timeframe between now and trial of the Status Review Application, which would likely be at least six months from now.

[29] The Legislation is mandatory in its wording in section 113 (8 ): it states the children shall remain with Ms. T.R. unless the court is satisfied the best interests of the children require a change now. I have reviewed the analysis regarding temporary variation of final orders in Child Protection matters made several cases, including: DCAS v J.L.; P.L. (GF) (2016) ONSC 5925 (SCO). In that case, Nicholson J in turn reviewed the cases of Windsor-Essex Children’s Aid Society v T (T) (2014) ONCJ 239 , and Children’s Aid Society of Toronto v Samantha G (2011) ONCJ 746 Justice John Kukurn in Children Aid Society of Algoma v Sandra S. (2010) ONCJ 332 stated:

Subsection 64 (8) [now ss 113 (8)] does not create a presumption in favour of whomever has care and custody of a child. It goes further than a presumption. The use of the words ‘shall remain’ implies that the status quo must remain in effect. The only exception is where the court is satisfied that the best interests of the child requires a change in that status quo. In my view, the use of the word ‘require’ in this provision is not accidental. “Require” is a fairly strong word. It denotes considerably more than being merely desirable. It carries the connotation of necessity or obligation. Moreover, the criterion for determining that there is a requirement for a change is the best interests of the child. Whenever this test is to be applied under the stature, the person making the determination must take a number of listed considerations into account.

[30] I agree with and adopt the above comments.

[31] In arriving at a decision, I consider the evidence and apply it to the best interest factors set out in Section 74 (3) (a) (b) and (c) of the Act . I find that the three children do have a good relationship and emotional tie with their mother, I consider the existing plan for mother and the three children to continue to live together at Ms. L.D.’s is important and find it will provide continuity of care. Ordering the children into Society care would be very disruptive and have potentially harmful impacts. I have considered the harm the children have been exposed to in the past and, specifically, their neglect. I am concerned but find the risks are now being addressed. I see more harm being done to these children if they are removed from mother at this time than if they are permitted to remain with her at Ms. L.D.’s. The Court’s decision is significantly influenced by the many positive steps mother has taken in the last month. If Ms. T.R. is unable to continue to follow her current plan, including residing at Ms. L.D.’s, engaging the children in community services, attending to their medical appointments, allowing father supervised contact only, then the Court would find that apprehension is required in the children’s best interests. During the past month Ms. T.R., albeit with assistance from others, has demonstrated she is capable of meeting the children’s needs. For this reason I find that removal of the children at this interim stages is not required in the best interests of the children. Their best interests are currently being met.

[32] The Society acted responsibly by commencing this motion and seeking an interim Order from this Court. The improvements in mother’s ability to meet the needs of the three children is as a direct response to the Society initiating the proceedings.

[33] For the foregoing reasons, I Order the children shall remain in the care and custody of Ms. T.R., pending outcome of the Status Review Application on the following conditions:

(i) Mr. S.G. shall have supervised access to the children as arranged by the Society; (ii) Ms. T.R. and the three children shall live at the residence of Ms. L.D. and not change that residence without notifying the Society in advance and obtaining the approval of the Society for any alternate residence. Alternative residence at an Interval house shelter would be acceptable option to the Court, subject to the Society’s approval; (iii) Except with the necessary changes as made by this Order, Ms. T.R. shall comply with all terms of the existing supervision Orders granted by Quigley J. April 12, 2018. I delete the condition requiring couples counselling. Ms. T.R. shall complete a parenting program, such as the Triple P Program and attend for personal counselling to address issues of domestic abuse. Ms. T.R. shall cooperate with the Society and allow them access to speak privately with any of the three children at any time; (iv) In the event that Ms. T.R. does not follow any terms of this Order, the matter may be returned to Court and the Society may seek to renew the request for relief sought in this motion.

The Honourable Mr. Justice. J. M. Johnston

Released: November 9, 2018

COURT FILE NO.: 464/15 [Perth] DATE: November 9, 2018 ONTARIO SUPERIOR COURT OF JUSTICE INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990 AND IN THE MATTER OF B E T W E E N: Family and Children’s Services of Lanark, Leeds and Grenville Applicant

• and – T.R. and S.G. Respondents REASONS FOR JUDGMENT Johnston, J.

Released: November 9, 2018