WARNING

This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Family Services Act, 2017, which deals with the consequences of failure to comply, read as follows:

87(8) Prohibition re identifying child — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.

(9) Prohibition re identifying person charged — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

142(3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Court File and Parties

COURT FILE NO.: FC-09-350-4 DATE: 20200224

ONTARIO SUPERIOR COURT OF JUSTICE

IN THE MATTER OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017, S.O. 2017, c. 14, Sched. 1

AND IN THE MATTER OF B.L., […]/2008, S.L. […]/14, J.L., […]/2016, N.L., […]/17, A.L., […]/19.

BETWEEN: THE CHILDREN’S AID SOCIETY OF OTTAWA Applicant/Moving Party

– and –

J.L. and A.C. Respondents

COUNSEL: Marie-Josée Ranger, for the Applicant/Moving Party Cedric Nahum, for the Respondent, J.L. Mellington Godoy, for the Respondent, A.C. Sheldon Cherner, counsel for the child, B.L.

HEARD: February 19, 2020

REASONS FOR DECISION

Audet J.

[1] The Children’s Aid Society has brought a motion seeking an order that the respondents’ child, B.L. (11), be placed in the temporary care of his maternal great uncle R.L. and his partner P.B. under a supervision order pending trial. The parents have brought their own motion to change all of the temporary orders that are currently in effect with respect to their five children, including B.L. They are both asking for a gradual return of all five children into their temporary care pending trial under a supervision order. The Society is opposing the parents’ motion. The trial is set to begin in the Fall of 2020.

Background

[2] The respondents, A.C. and J.L., are the parents of B.L. (11), S.L. (5), J.L. (4), N.L. (2) and A.L. (8 months). B.L.’s biological father is K.C., whose whereabouts are unknown. A.C. has acted as a parent for B.L. for many years now.

[3] B.L. is diagnosed with Attention Deficit Hyperactive Disorder, Attachment Disorder and Mild Intellectual Delays. B.L. has been in the Society’s care since July 19, 2018, due to concerns about the parents’ ability to meet his special needs. During this entire period, he has remained in the same foster home.

[4] S.L., J.L. and N.L. have been in the Society’s care since April 6, 2019, following a place of safety placement. A.L. was removed from the parent’s care shortly after her birth on […], 2019. Initially, all four children were placed in foster care. On October 17, 2019, J.L. and A.L. were placed together with their paternal aunt and uncle T.P. and M.C. under the terms of a supervision order. However, this placement broke down for J.L. who returned in his previous foster home on December 29, 2019. A.L. remains with T.P. and M.C. to this day.

[5] A kinship assessment has recently been completed and approved for B.L. to reside with his maternal great uncle R.L. and his partner P.B. This is what prompted the Society to bring a motion allowing the kin placement on a temporary basis pending trial.

Brief History of Society Involvement

[6] The Society has a long-standing involvement with the father going back to 2000. That year, the father’s two sons from a previous relationship were removed from his care due to the state of the family home and concerns regarding the children’s basic needs. After a brief return under their parent’s care, both children were made crown wards.

[7] The Society’s involvement with the mother began following the birth of B.L. due to concerns about mental health, history of domestic violence, instability in the home and B.L.’s biological parents’ ability to care for him. After the mother and B.L.’s biological father separated, and the mother became romantically involved with A.C., new and existing concerns remained and led to the Society’s continued involvement with the family. B.L. was placed in the care of the Society on three occasions before July 2018, pursuant to temporary care agreements and court orders.

Current Involvement

[8] The Society’s concerns with this family as it relates to B.L., specifically, include physical discipline, physical discipline leaving marks and the parent’s inability to meet B.L.’s high needs. In relation to all children, the Society’s concerns include the parents’ parenting abilities, the father’s drug use, the mother’s long-standing issues with mental health as related to her parenting capacity, lack of supervision, neglect, housing instability, the poor conditions of the home, and the parents’ inability to work cooperatively with the Society as well as their lack of insight into the child protection concerns raised over the years.

[9] Following B.L.’s placement in care, the Society attempted to work voluntarily with the parents relating to S.L., J.L. and N.L., without success due to the parents’ limited cooperation. Despite meetings with counsel to review the Society’s expectations, the parents did not engage in any services (until very recently, as will be related below).

[10] On November 20, 2019, Aitken J. granted an order for a family court assessment as related to B.L. only. The parents missed multiple appointments with the psychologist. The report of the psychologist, Mr. Pelletier, was received on April 4, 2019 and raised several and significant concerns, namely;

• that B.L. had clear attachment issues with his parents;
• that the parents had several issues likely to interfere with their ability to respond appropriately to B.L.’s needs;
• that both parents had personality issues severe enough to consider a diagnosis of personality disorder, and;
• that the parents showed a profile deemed resistant to treatment, with the main issue being their rejection of all responsibility in B.L.’s challenges.

[11] Of particular note are the following comments made by Mr. Pelletier about B.L.’s overall functioning:

B.L. is a 10-year-old child with Mild Intellectual Disability and ADHD that presents Externalizing problems (aggressivity, opposition, anxiety, frustration, emotional lability, irritability and morosity, poor impulse control) since a very young age. Although externalizing problems are associated with Intellectual Disability and ADHD, B.L.’s acting out of anger seems to have reached levels that were extremely marginal, showing very destructive and intrusive behaviours including being verbally and physically aggressive, exhibiting temper outbursts and rage reactions, and being assaultive toward peers and parents. Those problems are well documented and there is little doubt that a diagnosis of Disruptive Behaviour Disorder is granted (Oppositional-Defiant).

The significant improvement noted since placement of the child in foster care suggests that stress factors at home are significant contributors for the child’s disruptive behaviour. There is clear evidence of attachment issues (insecure/disinhibited/disorganized) in B.L. that leads to frustration, ambivalence and episode of acting out of frustration and anger when he is interacting with his parents.

[…] The observation of B.L. during the visits with his parents, him tanking them repeatedly, apologizing, pleading for forgiveness, clearly shows his desperate attempts to regain [his parents’] affection, love, acceptance and protection. Unfortunately, the significant lack of consistency, stability and predictability in both the parents’ availability, and attitude towards the child makes it difficult for B.L. to develop feelings of security.

[…] There is a very high risk that the child will never receive the emotional stability and structure he needs to develop the appropriate emotional and behavioural self-regulation that the parents are looking for. It appears to the assessor that the repetition of a pattern of being overwhelmed by the child’s behaviours will just continue should he return home now.

[12] Mr. Pelletier was of the view that the most effective intervention plan for B.L. consisted in providing an environment that could offer him the kind of structure he needed to reduce the anxiety and insecurities associated with his attachment issues. For the parents to be able to provide him with that environment, Mr. Pelletier opined that they needed to work on their perception of themselves and others including the child and they needed to explore their own attachment issues. Most importantly, they needed to change their perception and belief that they have no problems and that B.L. is the problem. In Mr. Pelletier’s view, no services would prove helpful to the parents unless they come to the realization that they are the tool and that they must develop the skills necessary to meet B.L.’s needs.

[13] Following receipt of this report, the Society made an unannounced home visit to the parents on April 6, 2019. During that visit, the following was observed:

• the children had been significantly neglected, whereas they were extremely unkept, dirty, smelled very strongly and had bug bites on their body. The children had no clean clothes to put on and had to be dressed in smelly dirty clothing when removed;
• The hotel room in which the family lived was a safety hazard for the children (crowded, sheets ripped with burns, spilled substances over the sheets, a great deal of debris on the floor) with a strong smell of urine and of body odor;
• The father admitted to crack use for the past two weeks (but indicated he did not do it in the same room) and toys were found in the room where he indicated using crack;
• The mother acknowledged the father’s crack use but did not agree that crack use was a risk to the children and reported that he was her only support and that she needed him.

[14] On that day, the other three children (A.L. was not yet born) were removed from their parent’s care and brought to a place of safety. Since that time, and until very recently, the parents failed to engage in any services to address the child protection concerns. Specifically, the Society has expressed to the parents, including in writing, the importance of obtaining mental health services as a priority to address the results of the family court clinic assessment.

[15] Given the above, on June 10, 2019, A.L. was removed from the parent’s care (shortly after her birth) and was placed in the care of her paternal aunt and uncle where she remains to this day.

[16] Since this protection application was commenced in July 2018, it was amended on several occasions by the Society. The most recently amended protection application which was issued on December 11, 2019 seeks a final order placing the four eldest children in the Society’s interim care for a period of six months and placing A.L. in the care of her paternal aunt and uncle for a period of six months. Since the trial in this matter will be held in approximately seven months from now, at which time S.L., J.L. and N.L. (5, 4 and 2 years of age) may potentially have been in the care of the Society for almost 18 months, and since a kinship placement has been approved for B.L., it is not impossible that the Society’s protection application might undergo further amendments in the future, depending on what happens in the next six months or so.

The Parents’ Recent Engagement in Services

[17] It is not disputed that until very recently, the parents failed to engage in any services as recommended by the Society and the family court clinic to address the child protection concerns identified by the Society.

[18] In November 2018, the parents lost their house, and as a result, they have been living in hotels and couch surfing. However, they have, over the past months, made significant efforts to try and reestablish stable housing for themselves. On January 1, 2020, they moved into a new three-bedroom subsidized home in Ottawa. Pictures of the home adduced in evidence and home visits by Society workers confirm that this is an appropriate place for the children to reside.

[19] The father has been addicted to crack cocaine for about three years. While he alleges that he has had periods of sobriety within those three years, he also admits that his addiction became more serious after he and the mother lost their family home in 2018. In July 2019, he began getting support at Rideauwood Addiction and Family Services, where he attends sessions with a counsellor to address relapse prevention and anger management. However, the father has continued to struggle with his drug addiction and had many relapses, including in the fall of 2019.

[20] In late November 2019, the parents made plans to move to Bishop Mills with the father’s friend and employer. The father states that being in the country for a month has supported his efforts to remain sober. However, it also resulted in the parents’ inability to attend any visits with their children from mid-November to the beginning of January.

[21] It is the father’s evidence that during his last visit with the children in mid-November 2019 that he had a defining moment following S.L. telling him how she really wanted to come home and be part of the family. He says that he was “crushed” by the conversation and that this was the turning point from which he resolved to do everything possible to be stronger for his family. He says that from that point on, he has remained sober.

[22] The father’s attendance at Rideauwood following his return to Ottawa in January 2020 has been noted to increase and to be much more regular. In addition to his counselling, the father has registered for a program called the Choices and Changes Harm Reduction Program, which was set to start on February 11, 2020 (10 days ago) and to continue at the rate of 90 minutes once per week for 8 to 12 weeks. The program is a psychoeducational program teaching “harm reduction skills to those who want to increase the quality of their lives while still using”. The father also indicates that he will begin attending the father’s drop-in centre’s program called “Super Kids, Super Dads”, which runs for one hour per week for five weeks.

[23] The mother indicates that on February 7, 2020, she visited the Montfort Hospital Psychiatry Outpatient department for a psychiatry consultation. She was referred to the Integrative Day Hospital group for therapy which will run five days per week, for eight weeks. The program takes place at the Montfort Hospital psychiatry outpatient department, but I have no evidence as to when this program is supposed to start. The mother is set to attend follow-up appointments with both her doctor and the nurse practitioner soon, and she has started to take medication to address her mental health issues. The mother also indicates that she is currently attending the Positive Discipline Program provided by the Vanier Community Service Centre. This program will run for nine two-hour sessions with an additional follow-up session which is optional.

Legal Framework

[24] There are currently temporary orders in place regarding the care of all children. Pursuant to s. 94(9) of the CYFSA, a temporary care and custody order may be varied or terminated by the court at any time. Although no statutory criteria are provided for a variation, the court in Children’s Aid Society of Simcoe (County) v. B. (B.J.) sets out a two-stage test at paras. 31 to 33:

32. The first stage is to determine whether there has been a material change in circumstances. The moving party must demonstrate that there has been such a change. This is a threshold question. If there has not been a material change in circumstances, then the application need not be considered further. On the other hand, if there has been such a change, the court should proceed to the second stage.

33. The second stage involves consideration of whether there are reasonable grounds to believe that there is a risk that the child is likely to suffer harm and that the child cannot be protected adequately by a supervision order as well as a broad and discretionary assessment of the best interests of the child.

[25] In Catholic Children’s Aid Society of Toronto v. M. (R.), 2017 ONCJ 784, the court stated that courts should take a flexible approach in interpreting what constitutes a material change in circumstances, and take a flexible approach about what factors will be considered when determining whether it should change the temporary placement order once the material change has been established. The change in circumstances required to change a temporary placement order should only need to be “sufficiently material”. What change is sufficiently material will depend on the circumstances of the case. Once a material change in circumstances is established, a contextual analysis should be conducted by the court to determine if the placement order should be changed. The purposes of section 1 of the act should always be at the forefront of the analysis.

[26] As it relates to B.L., the recent approval of the kin placement for him is unquestionably a change in circumstances sufficiently material to allow this Court to review his temporary placement. As it relates to the other four children, I find that the parents having moved into new housing appropriate for the children, coupled with their very recent involvement in services to address the Society’s protection concerns, amount to a material change in circumstances allowing for a review of the temporary arrangements currently in place for all children.

B.L.

[27] It is overwhelmingly clear to me that B.L. cannot be returned to his parents at this time and that no supervision order could possibly alleviate the risk of physical and emotional harm that he is likely to suffer if he is returned to their care. Although the parents have recently engaged in some services, which they are to be highly commended for, and although B.L. has recently expressed the wish to participate in all visits (twice per week) with his parents along with his siblings (previously he only attended once per week), I have no evidence that would suggest that the parents have commenced the work necessary for them to change their attitude with regards to B.L., that they have gained any insight about their contribution to his significant challenges, or that they are in any way better equipped to provide the emotional stability and structure that they need to meet his high needs. Unless they immediately and meaningfully engage in mental health services to address the results of the family court clinic assessment, the future appears very grim as far as B.L.’s return to their care is concerned.

[28] The parents argue against a temporary order that would change the status quo that has been into place for B.L. over the past 18 months. In their view, this would be a significantly unsettling change for B.L., some six months before the trial is scheduled to proceed, one which may be so disruptive and destabilizing that it might jeopardize his possible return into his parents’ care.

[29] Pursuant to subsection 94(5) of the CYFSA, the court must consider family and community plans prior to placing children in care. The test is not perfection, it is a balancing of risks as opposed to benefits, keeping in mind only the child’s best interests. Subsection 94(5) makes it clear that an order for temporary care and custody to a Society is the last resort, to be made only if an order placing with kin is not appropriate.

[30] I acknowledge that B.L. has been in the same foster home since being placed in care in July 2018, and that he is reported to be doing well there. However, since the maternal great uncle and his partner, R.L. and P.B., were approved as possible kin for B.L., he started to spend time with them as part of the visits he already enjoys with his maternal grandmother. He has spent time with the R.L./P.B. family since October 2019, and his visits with them have quickly progressed to overnight visits during the weekends. During the week of January 19-27, 2020, B.L. got to spend a full week with this family and reportedly did well in a weekly routine. While he has occasionally acted out, his kin were able to manage his behaviours. In addition, and unlike B.L.’s current foster home, the family resides near B.L.’s school which he sees as a positive. P.B. and R.L. are willing to present a permanent plan for B.L.

[31] While I acknowledge that moving in with the R.L./P.B. family will undoubtedly bring about some disruption in B.L.’s life, since he has remained with the same foster family for more than a year and a half, I am of the view that it also provides B.L. with an alternative (and permanent) extended family placement plan should it become impossible for him to return to his parents’ care. The fact that he will be able to continue to attend the same school is an important benefit which alleviates some of the concerns that a change in his placement at this particular juncture might cause him.

[32] In light of all the circumstances, I am of the view that it is in B.L.’s best interests to be placed in the care of the R.L./P.B. family at this time. As a result, a temporary order containing all the terms set out in the Society’s Notice of Motion dated February 7, 2020 shall issue. Although in its factum, the Society indicated that the parents presently have two visits per week with all five children (including B.L.), according to B.L.’s lawyer’s Confirmation Form, he does not currently attend the Monday after school visits with his siblings. His lawyer confirmed that at this time, B.L. wishes to participate in the Monday visits as well. To the extent that this is not yet the case, Brandon’s access to his parents shall be increased to include the Monday after school visits as well.

The Four Youngest Children

[33] I share the Society’s view that the parent’s request for a gradual return of their children into their care is premature. Although they have made important gains (housing and engaging in services), many of the services they have engaged in have only just started, and some of them have not even begun. It is impossible at this time to assess whether they have made the kind of progress required to alleviate the Society’s and this Court’s concerns in a meaningful and sustainable way.

[34] More importantly, neither parent has started to engage in services meant to address the underlying mental health issues and personality vulnerabilities that have been identified in Mr. Pelletier’s assessment, although I acknowledge that the mother has begun the process by recently attending a psychiatry consultation with the Montfort Hospital psychiatry outpatient department (on February 7). Although I acknowledge that B.L.’s challenges are unique to his own health issues and his own relationship with his parents, it seems to me that the concerns identified by Mr. Pelletier in his assessment report are serious enough to cause significant worries about the parents’ long-term ability to care for their other four children and to develop and maintain healthy attachments to them, without addressing those concerns.

[35] The evidence before me makes it clear that these children have likely suffered significant emotional harm in addition to their basic needs not being met while in the care of their parents. Following the place of safety placement, S.L. made concerning disclosures to the Society and the children (with the exception of A.L., who is still a young infant) presented with important behavioral issues. As far as S.L. is concerned, she had to be placed with three different foster families as a result of her challenging behaviours. J.L. and N.L.’s first foster family also requested a replacement due to their inability to manage their behaviours. J.L.’s kin placement broke down due to his challenging behaviour. N.L. is nonverbal despite being almost 2 years old, and he receives speech therapy.

[36] While the parents’ progress is recent, the Society has expressed that it would be prepared to consider a plan to gradually return the four younger children to their parent’s care if the parents achieve the following objectives:

• a period of a few months of sustained attendance to programs;
• a period of a few months of regularly attending their access visits (which could be increased gradually during this period);
• positive engagement by the parents in addressing their mental health and addictions issues;
• The parents meeting with the Society’s workers to establish a family support network.

[37] I agree that progress on all the above must be achieved before this Court can consider the reintegration of the four younger children into their parents’ care. However, time is ticking, and I am not prepared to leave it to the Society’s discretion to decide when the parents’ visits with the children should begin to increase or when a gradual reintegration plan should be put into place. I am also of the view that the parents must clearly understand that they must meaningfully engage in all the services previously identified by the Society if they are to maintain any hope of their children being reintegrated into their care before trial.

[38] As a result, rather than dismissing the parents’ motion at this time, I am adjourning it to March 31, 2020 to provide the parents with more time within which to engage in services and establish progress with meeting the Society’s objectives as set out above. I shall be seized of this motion and the parties shall re-attend before me on March 31 to re-assess whether the parents’ visits with the children should be increased and/or whether they should be gradually reintegrated into their care. At that time, I also expect to discuss with the parties the necessity and value of obtaining a family court clinic assessment to evaluate the parents’ parenting capabilities in relation to the other four children and their ability to meet those children’s needs at this time and in the future.

Madam Justice Julie Audet Released: February 24, 2020