Children's Aid Society of London and Middlesex v. J.C.1 et al.
COURT FILE NO.: C450/20-01
DATE: December 14, 2020
SUPERIOR COURT OF JUSTICE – ONTARIO
FAMILY COURT
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SUBSECTIONS 87(8) AND (9) OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017
RE: CHILDREN’S AID SOCIETY OF LONDON AND MIDDLESEX, applicant
AND:
J.C.1, J.C.2, J.M.C., J.M. and K.U., respondents
BEFORE: HENDERSON J.
COUNSEL: Sandra Welch for the Society J.C.1, deceased Matthew Dupre for J.C.2 Eric Vallillee for J.M.C. Robert Cunningham for J.M. and K.U.
HEARD: November 27, 2020
ENDORSEMENT
[1] This is a temporary care hearing concerning the placement of two sisters, MC, age 7, and NC, age 6. They have been in care in the same foster home since June 2020.
[2] I have before me to consider two plans that seek to place the children with different parties on a permanent basis.
[3] One plan is presented by a maternal aunt, JMC, who resides in a community on the outskirts of Atlanta, Georgia. She is a single parent to an adopted son, D.
[4] The other plan is put forward by KU and JM (“KJ”). KU was the police officer who attended at the children’s residence when they were taken to a place of safety. KJ have since developed a relationship with the girls.
[5] The father is currently incarcerated and there is no one else on the paternal side who is able to put forward a plan. The father supports KJ’s plan.
[6] The mother is deceased, having died according to her sister, from complications from diabetes.
[7] The Children's Aid Society of London and Middlesex (“the Society”) supports JMC’s plan.
The Children
[8] Before proceeding to my analysis, it is important to talk about the children who are the subjects of this hearing.
[9] The Society’s involvement with the family goes back to 2013, with historical concerns being the father’s mental health issues, his anger management issues, limited support, poor finances, general neglect, domestic violence and the children’s exposure to it.
[10] The Society’s most recent involvement came on June 21, 2020 and has continued since. On that day, the children were taken to a place of safety in tragic circumstances. They were found in their residence with their mother, who, according to some evidence, had been deceased for three to five days. The residence was described as cluttered and dirty.
[11] The children have been in care since, in the same foster home.
[12] The children have no significant medical needs, although NC has required significant dental work.
[13] There are concerns, however, with their mental wellbeing. According to the Society worker, the foster parent has reported concerns, specifically, regarding MC. She has been observed to exhibit anxiety behaviours such as biting the wooden bed, tearing up pieces of paper/cardboard to chew/consume and nail biting.
[14] MC has been described as having difficulty focussing, is easily distracted and is fidgety. She also has exhibited other concerning behaviours, such as parentification and often, at bedtime, regressing into toddler-like behaviour. She can be defiant, steals and is not truthful much of the time. At school, she is performing at below grade level.
[15] NC, for her part, has displayed stubbornness and seeks out negative attention.
[16] Both children have been observed to have attachment issues.
[17] The Society says it would like to get the children counselling.
The Law
[18] Section 94 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (“CYFSA”) governs temporary care hearings. Section 94(2) sets out a number of placement options. The only viable option to consider is s. 94(2)(d), that the children remain in care.
[19] However, before making that order pursuant to s. 94(5), the court must consider whether a placement under s. 94(2)(c) is in the children’s best interests. This would include a placement of the child in the care and custody “of a person who is a relative of the child or a member of the child’s extended family or community.”
Analysis
[20] The Society supports placement of the children into the care and custody of JMC, the maternal aunt. It supports its case with two arguments:
KJ do not fall within the definition of “community” in s. 94(5) because they would fall outside the definition of a child’s “community” as defined in s. 2(3) of the CYFSA. The Society argues they lack the “beneficial” and meaningful “relationship” required by s. 2(3).
It is in the children’s best interests in that placement is the least intrusive in that JMC is a maternal aunt and that, on the facts, JMC can provide a stable and loving placement.
[21] In my view, for the purposes of this case, it is not necessary to decide whether KJ are excluded by a technical reading of s. 2(3). I need not decide whether the traditionally more restrictive definition of “beneficial and meaningful” would apply to s. 2(3) (see, for example, Children's Aid Society of the Niagara Region v. M.J., 2004 2667 (S.C.J.) or the more expansive definition in the recent Court of Appeal’s decision in Children’s Aid Society of Toronto v. J.G., 2020 ONCA 415, [2020] O.J. No. 2822). This was a case concerning access pursuant to s. 105(6), which speaks of a beneficial and meaningful relationship in the context of a child’s best interests, a consideration absent in s. 2(3).
[22] It is not necessary to embark on this analysis because, in fact, the Society was seriously considering placing the children with KJ until JMC entered the picture. For example, they were part of the Society planning meetings.
[23] The Society had a least one other way to place the children with KJ, by approving them as foster with a view to adopt parents.
[24] It was entirely appropriate for the Society to seriously consider KJ’s permanent plan which, when presented, was the only plan. The alternative would have had the children bumping through the system. KJ’s plan had excellent prospects. The Society would have made it work.
[25] My decision, instead, will be made solely in the children’s best interests.
[26] KU is a police officer with the London Police Services and works shifts. He was the officer who responded to the children’s residence when they were initially taken to a place of safety. KU spent several hours with the children that day and he felt they bonded. He feels they have developed a relationship over the months since.
[27] JM is university educated and works for Service Canada from home. She has not met the children physically but has participated in virtual visits.
[28] KJ met in 2014, cohabited starting in 2015 and married in 2019. They live in a renovated century home in the town of Ingersoll, Ontario. They have no children of their own at this point. They have taken PRIDE pre-service training and attended the Circle of Security Program, which offers insight into the concepts of attachment theory.
[29] KJ stepped forward early on to put forward a plan of permanent care for the children.
[30] JMC is 41 and university educated. She taught pre-school for 15 years and is now a staff accountant with an accountancy firm. She lives with her adopted son, D, in a suburb on the outskirts of Atlanta, Georgia.
[31] Her current stable middleclass lifestyle is in sharp contrast and in spite of her upbringing. With her younger sister, the children’s mother, most of her childhood was spent homeless. She was physically, emotionally and sexually abused by her father. She attempted suicide when she was 16 and institutionalized for a period. She attended counselling. She is familiar with trauma.
[32] D had a traumatic upbringing before he was taken into care. JMC is committed to providing him with a stable, predictable and loving household. She makes the same commitment to her nieces but is realistic in her expectations.
[33] Both KJ and JMC agreed to comprehensive home studies. Both studies would recommend them as adoptive parents.
[34] I do not intend to do a detailed comparison between the two plans. Both plans are meritorious and, in fact, it is rare that this court is presented with competing plans of such high quality. Does each plan carry frailties? They do and opposing counsel were quick to highlight them. For example, they underlined KJ’s lack of parenting experience and JMC’s single parent status.
[35] I am aware of these and a few other shortcomings. However, I am confident that both parties have the abilities to overcome them. Challenges there will be. These children by all accounts carry a lot of baggage. They will need a lot of care, support and love. They will need counselling.
[36] That said, I still have to make a decision. In arriving at this decision, I have not considered the children’s views and preferences, as required by s. 94(11) and s. 74(3)(a). To the extent they may have expressed any, I would discount them entirely, taking into account the children’s ages, emotional issues, possible delays and attachment issues.
[37] After considerable thought and with due consideration, I find that it is in the children’s best interests that they be placed in the temporary care and custody of their aunt, JMC, subject to the terms and conditions set out in paragraph 37 of the affidavit of Society worker Catherine Hatfield, sworn October 30, 2020.
[38] When faced with two equally compelling plans, I find in this case a close family connection, an aunt, is the distinguishing factor.
[39] A reading of the CYFSA supports this approach. Section 1(2)2. requires “the least disruptive course of action that is available and is appropriate.” Section 74(3)(c)(vi) requires the court to consider, among other factors, “the child’s relationship and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community.”
[40] Section 94(5), as already discussed, requires consideration of placement with “a person who is a relative of the child or a member of the child’s extended family or community.”
[41] Both s. 74(3)(c)(vi) and s. 94(5) strongly suggest a hierarchy: relative over extended family over member of the child’s community, all other things being equal.
[42] JMC acknowledges that contact over the past nine years was off and on. Her sister met the children’s father online and, in 2011, ran off to him in Canada, leaving the United States where she always resided. Communication was cut off.
[43] Not until 2016 did JMC’s sister resurface on Facebook, where she described the father’s physical abuse, that he had isolated her, taking away her passport, and barring contact with her family. It was then that JMC became aware of her nieces.
[44] After her sister left the children’s father, communication became regular, with video calls including the children.
[45] Unfortunately, after the father was convicted of sexually assaulting the mother, she fell into a depression and communication became sporadic by December 2019. The mother had talked of returning to the United States. JMC learned of her sister’s death about six weeks after she died, when contacted by a private investigator.
[46] The relationship between JMC and the children, while not tenuous, was not robust or close either. Regardless, what JMC brings to the children that KJ cannot is familial continuity. She is the closest connection with their mother. She grew up with their mother in the same circumstances. They have a shared history. She, and only she, can explain to the children the challenges her mother faced and why she had them. Even without the challenges, JMC can tell them what their mother was like as a person and about those other intangibles that can only come in a sibling relationship. JMC brings the advantage of blood and close blood at that.
[47] While I concede the move to Georgia is significant, it is in an urban setting not much different from the one they are used to.
[48] Interim access to the father shall be as set out in paragraph 38 of Ms. Hatfield’s affidavit. As this is a temporary order, I do not see that it is not in the children’s best interests that they continue to have contact with KJ. That shall be once every two weeks for 30 minutes by video call, at such times as can be arranged with JMC.
[49] There shall be no order as to costs.
“Justice Paul J. Henderson”
Justice Paul J. Henderson
Date: December 14, 2020