COURT FILE NO.: FC-21-CP-43
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
THE CHILDREN’S AID SOCIETY OF OTTAWA Applicant
– and –
I.L., M.S., and C.T. Respondents
Counsel: Lois Boateng Amirikah for the Applicant Jennifer Ho for the Respondent I.L. Alyssa Denley for the Respondent M.S. No one appearing for the Respondent C.T. Julie Guindon appearing for the Office of the Children’s Lawyer, on behalf of S.
HEARD: November 9, 2021
WARNING
This is a case under the Child, Youth and Family Services Act, 2017. Under subsection 87(8) of the Act, no one may publish or make public any information that has the effect of identifying a child who is subject to a proceeding under the Act, or the child’s parent or foster parent or a member of the child’s family. Further to subsection 142(3) of the Act, a person who contravenes subsection 87(8), or a director, officer or employee of a corporation who authorizes, permits or concurs in a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of up to $10,000 or to imprisonment for up to three years, or both.
DECISION ON TEMPORARY CARE AND CUSTODY MOTION
Madame Justice S. Gomery
1The Children’s Aid Society of Ottawa seeks a temporary care and custody order with respect to S. (“Shania”) and M. (“Marcus”).1 Shania is the daughter of I.L. and C.T. She is 12 years old. Marcus is the son of Ms. L. and her current partner, M.S. He is fourteen months old. Until August 2, 2021, Marcus and Shania lived with Ms. L. and her older son L.K. (“Lance”), who is 17. Ms. L.’s daughter T.V. (“Tanya”), who is 21 years old, lives nearby. Depicted graphically, Shania and Marcus’ family relationships are as follows:
2On August 2, 2021, the Society were called by police to I.L.’s home after she was arrested for assaulting M.S. This was the third time in three months that drinking or fighting at Ms. L.’s residence had been reported to the police or to the Society. After investigating this latest incident, the Society concluded that Ms. L. and Mr. S. had violated written undertakings not to fight or consume alcohol and drugs when Shania and Marcus were in their care and that the children should be brought to a place of safety. On August 6, 2021, it obtained an interim, without prejudice, order from Justice O’Bonsawin, placing Shania with her father, Mr. T., and A.T., her paternal aunt. Marcus was also placed with Ms. T. On October 27, 2021, a further temporary, without prejudice, order was issued by Justice Blishen, placing Marcus with his maternal grandmother, C.L.
3Pursuant to the interim orders, Ms. L. has parenting time with Marcus and Shania three times a week, subject to the Society’s discretion. She is required to attend a residential treatment program for alcohol addiction, complete an anger management course, and discuss anger management issues with her family doctor. Mr. S. has parenting time with Marcus at least once a week, subject to the Society’s discretion. He is also required to attend a residential treatment program for his addiction to drugs and alcohol, and to complete parenting programs suggested by the Society.
4The Society now seeks to continue the terms of Justice Blishen’s order while Ms. L. and Mr. S. seek treatment for addictions and take other steps to ensure that Shania and Marcus are not exposed to violence in their home. Ms. L. asks that Shania and Marcus be returned to her care. She contends that she has been “set up” by anonymous, unverifiable reports by neighbours and that there is no credible evidence that Shania and Marcus will suffer harm if they return home. She emphasizes the importance of keeping the family together. Shania’s father, M.S., and her maternal grandmother, C.L., support Ms. L.’s position.
5For the reasons that follow, I am granting the Society’s motion. I find that it is more likely than not that Shania and Marcus would suffer harm if returned to Ms. L.’s care before she and Mr. S. have fully complied with the terms of the interim orders. Ms. L. and Mr. S. have not yet sought residential treatment or fulfilled other undertakings in the July VSA. I am concerned by Ms. L.’s lack of insight about the impact of her actions, by the inconsistency of her statements about her alcohol use, and by the differences between what Mr. S. told Society workers in August and what he is telling the court now. I find that a supervision order would not adequately protect Shania and Marcus, because Ms. L. and Mr. S. have repeatedly disregarded their past undertakings to the Society and to the Court. In light of this history, I am not convinced that Ms. L. and Mr. S. would respect the terms of any supervision order I might impose, if the children were returned to her care.
Preliminary comments on the evidence
6The Society filed affidavits sworn by Leslie Adamson and Valery Vinet, two child protection workers involved in its recent investigations in the summer of 2018. In their affidavits, Ms. Adamson and Ms. Vinet recounted conversations they had with family members as well as their own observations of Ms. L.’s home. They also described interactions and conversations between family members and other Society workers.
7Ms. L. argues that much of the Society’s evidence was hearsay and so should be given little or no weight. She says that her children have lied about her and she also disputes Ms. Adamson and Ms. Vinet’s account of some of their conversations with her. She contends that the court should accept her denial of many of the Society’s allegations.
8On a care and custody motion, a court may admit and act on evidence that the court considers credible and trustworthy in the circumstances; Child, Youth and Family Services Act, 2017, SO 2017, c 14, Sch 1, s. 94(10). Hearsay evidence is expressly allowed, so long as the affiant identifies the source of their information and states that they believe it to be true; r. 33(6) and 14(19) of the Family Law Rules. The court is not required to assess whether this evidence would, in other circumstances, meet the criteria for admitting hearsay evidence; Children's Aid Society of London and Middlesex v. H.(R.), 1999 CanLII 14314, at para. 15.
9Having reviewed the Society’s evidence, I generally find it to be credible and trustworthy. Out-of-court statements of children are often put before the court through sworn statements by child protection who have interviewed them. Ms. L. did not seek to cross-examine Ms. Adamson or Ms. Vinet on their affidavits or suggest that they had a motive to lie or misrepresent the children’s statements. I have also noted internal inconsistencies and contradictions within the affidavits filed by Ms. L. and Mr. S.
10Having said this, I am mindful of the need to carefully consider the weight to give to hearsay statements of individuals interviewed by Ms. Adamson and Ms. Vinet. I have been careful to take Ms. L.’s arguments about their reliability into account. I have considered, in particular, whether the accounts of other witnesses are consistent.
Events giving rise to this motion
Events prior to June 2017
11Prior to this past summer, the Society was contacted thirteen times about Ms. L. and her children. In 2017 and again in 2019, the Society investigated after Shania’s school reported concerns that Ms. L. aggressive and neglectful. Mr. T. also alleged that Ms. L. had a drinking problem. The files were closed because Ms. L. and her children denied the allegations. The Society investigated again in August 2020 in response to concerns by professionals at the Royal Ottawa Hospital about Ms. L.’s ability to care for Lance, who has serious mental health issues, and the impact of this situation on Shania and Marcus. Based on this investigation, the Society asked Ms. L. to sign a voluntary services agreement, which remained in place for three months. The other reports to the Society prior to June 2021 were unverified and did not lead it to intervene.
12I do not reach any conclusions about the specific incidents alleged in reports to the Society prior to June 2021. I have, however, taken into account Ms. L.’s response to Ms. Adamson’s description of these reports. According to her, the reports were all based on misrepresentations or bad behaviour by her children. When Shania was injured on the playground as a young child, this was her own fault because she did not listen to Ms. L.’s directions. When Shania’s school reported that she had mentioned physical abuse by her mother, this was a lie; Shania pulled her own hair or threw herself onto the floor. When Shania showed up at school without a coat on a cold winter day, this was because she snuck out behind Ms. L.’s back. Any inappropriate or sexualized behaviours by Shania at school were due to Tanya’s bad influence.
13Ms. L. also denies any role in problems arising from her son Lance’s mental health issues. She denies that she ever disregarded medical advice, but then admits that she eventually decided to take him off medication prescribed to him for his ADHD, and that she did not seek medical attention for his mental health issues in early 2020, because she thought he was going through a phase. Ms. L. does not mention the voluntary services agreement she signed in September 2020 to address the Society’s concerns about her ability to care appropriately for her children.
The Society’s investigation in June 2021 and the signature of the June VSA
14On June 17, 2021, police were called to Ms. L.’s home to investigate a disturbance. When they arrived, Tanya told them that Ms. L. had tried to punch Mr. S. during a fight, Mr. S. backed away, and Ms. L. fell on top of Marcus. Mr. S. was not in the house when the police arrived. According to the police, Ms. L. was intoxicated but appeared to be able to care for Marcus, who seemed unharmed. Shania had been picked up by her father, with whom she planned to stay for a few weeks.
15After the police contacted the Society, Ms. Adamson investigated the situation by visiting Ms. L.’s house and interviewing family members. Their accounts were largely consistent with what Tanya had told the police, although both Ms. L. and Mr. S. denied that she had fallen on top of the baby. Family members gave significantly different accounts of Ms. L.’s alcohol consumption, her care for her children and her relationship with Mr. S.
16In separate interviews, Shania, Lance and Tanya each told Ms. Adamson that Ms. L. drank daily. Shania said her mother drank up to three hours every day and Mr. S. also drank but not as much. According to Lance, Ms. L. and Ms. S. would drink up to three beers each day. He described how Ms. L. had come into his room one night when she was really drunk and told him to take his pants off. Tanya also told Ms. Adamson that Ms. L. was struggling with alcohol and cocaine.
17The three children told Ms. Adamson that their mother and Mr. S. fought often. Shania said that Ms. L. abused Mr. S., and that she had threatened to kill Marcus if Mr. S. left her. She described fights between Ms. L. and Tanya, and neglectful or abusive behaviour by her mother. She said there was never any food in the house, and that Ms. L. threatened to punch Marcus when he cried at night. She told Ms. Adamson that she did not want to be around Ms. L. anymore.
18During the June 2021 investigation, Ms. L. and Mr. S. denied that they fought or drank alcohol as much or as often as described by the children, but gave inconsistent statements about their drinking habits and drug consumption.
19When first interviewed by Ms. Adamson on June 18, Ms. L. admitted that she had been “buzzed” the day before and that both she and Mr. S. had each drunk about four beers before they fought. On June 24, she told Ms. Adamson that she understood her drinking was a concern but denied that she had a problem or was an alcoholic. Finally, in her October 18, 2021 affidavit, Ms. L. says that she only had a couple of drinks in the evening of June 17, and she was not drunk when the police arrived.
20When he was first interviewed by Ms. Adamson on June 18, Mr. S. said that he generally drank only a couple of alcoholic beverages every week. Contrary to what Ms. L. had told Ms. Adamson, he said he had only had one beer on June 17. He denied any addictions. A week later, though, Mr. S. admitted to Ms. Adamson that he has struggled with cocaine abuse over the last year. In his November 1st affidavit, he confirms that he first tried cocaine in June 2020 and began using it more frequently after Marcus’ birth, when he was living full-time with Ms. L.
21Some of the children’s allegations were corroborated by other people. Shania’s father and aunt told Ms. Adamson that they had received text messages from Shania about the lack of food at home and expressed frustration that their past calls to the Society had not had any affect. Ms. Adamson herself saw two cases of beer in the kitchen of Ms. L.’s home. When she confronted Ms. L. and Mr. S. about this, they claimed that the cases had been there for several months.
22On the other hand, Ms. Adamson found no evidence that Marcus was not well cared for. He appeared to be well and happy. She was concerned about Ms. L. and Mr. S. smoking around the baby and his sleeping arrangements. They reassured her that they would not smoke in the house and ensure that he slept in an uncluttered crib.
23Following the Society’s investigation, Ms. L. and Mr. S. signed a six-month VSA (the “June VSA”). They agreed not to drink when Shania and Marcus were in their care, and to each attend an appointment at an addiction treatment centre. Ms. L. told Ms. Adamson that she would ask her mother, C.L., to take care of Marcus on weekends if she and Mr. S. needed to drink. They also agreed not to fight verbally or physically when the children were home and to attend couples counselling. Finally, they agreed to keep Ms. L.’s home free of any safety hazards, including drugs or drug paraphernalia.
The Society’s investigation in July 2021 and the July VSA
24On the evening of July 16, 2021, the Society received an anonymous report that Ms. L. had been drinking for several hours while Marcus was in her care. The caller said that Tanya was also drinking in the house and that Ms. L. had kicked Mr. S. out earlier that day. She said that Ms. L. was flushed and clearly intoxicated, walking and speaking unsteadily.
25A child protection worker, Yvonne Young, went to Ms. L.’s home accompanied with a police officer. Ms. L. admitted that Marcus was home and that she had been drinking, but said that she had only consumed one beer. According to Ms. Young, Ms. L.’s eyes were a bit red and glassy, but she had no trouble walking and her speech was clear and coherent. Ms. Young reviewed the June VSA and, specifically, Ms. L.’s undertaking not to drink alcohol while caring for her children. Ms. L. denied any problem with alcohol and said that she had felt compelled to sign the VSA. Ms. Young noted a bong by the door and clutter in the house and in Marcus’ crib. Ms. L. admitted daily marijuana use but denied that this interfered with her ability to parent.
26Two days later, two other child protection workers visited Ms. L.’s home for a scheduled visit. No one answered the door. The workers saw six empty alcohol containers in a bucket on the front porch. A neighbour who was there expressed concern about Ms. L. and Mr. S.’s drinking and said that Marcus was crying all of the time. The two workers returned to Ms. L.’s house again later that day. She was still not at home, and the workers called her to set a time for their visit.
27Just after this conversation, the Society received another anonymous phone call. The caller alleged that Ms. L. was drinking and using drugs despite the June VSA, and that they had seen beer being delivered to her home. They also alleged that Ms. L. had assaulted Mr. S. and, on one occasion when Shania tried to intervene, Ms. L. grabbed her by the throat, pushed her up against the wall and choked her. The caller also alleged that Ms. L. had molested Lance, had handled Marcus roughly while changing his diaper, and that the baby was often heard crying for hours while Ms. L. swore at him.
28When Ms. L. was interviewed later that day, she accused either her neighbours or Tanya of making unfounded and malicious reports. She again admitted that she had consumed a beer on July 16, but denied that she was receiving deliveries of beer to her house. She also admitted that she had not obtained an assessment from the addiction treatment centre, as she undertook to do in the June VAS, as she did not think this was necessary. In her October 18, 2021 affidavit, Ms. L. denies that the containers of alcohol on her front porch on July 19 belonged to her, and says she does not know who put them there. She denies the allegation that she was rough with Marcus, swore at him or left him to cry in his crib. She also denies that she ever grabbed Shania by the neck and choked her.
29During the July investigation, Society workers again observed that Marcus appeared to be clean, well dressed and happy. They were again concerned that toys in the crib were a safety hazard and reminded Ms. L. about appropriate sleeping arrangements.
30On July 20, 2021, Ms. L. and Mr. S. signed a second, six-month term VSA (the “July VSA”). In it, they made the same undertakings they had made in the June VSA, but also agreed to submit to random drug screening and the establishment of a support network of other adults who perform random checks on the house to ensure that Ms. L. and Mr. S. were not drinking alcohol while the children were present. In the July VSA, as in the June VSA, Ms. L. and Mr. S. acknowledged that they were advised of their right to seek independent legal advice before signing the agreement.
31According to Ms. Adamson’s affidavit, Ms. L. failed to attend a scheduled drug screen the next day. She said she misunderstood the arrangements. When contacted two days later about a drug screen, she said she had a cyst on her leg that prevented her from walking. When she and Mr. S. finally did a drug screen on July 29, it was positive for marijuana use.
The Society’s intervention in August 2021
32On August 2, 2021, the Society learned that Ms. L. had been arrested for assaulting Mr. S. at Ms. L’s home. Police who responded to Mr. S.’s 911 call said that Mr. S. had three to four inch scratches on his face, bruising and scratches on his left knee and scrapes on both knees. According to the police, Ms. L. was evasive when asked questions, and spoke very slowly, had a dry mouth and appeared “out of it”. The police also reported that Ms. L.’s house was a “disaster”.
33When Michelle McLeery, a Society worker, attended at the home, she found it cluttered and dirty. Marcus’ crib was full of toys and books, there was a bong on the dining table and bags of garbage in the backyard.
34Mr. S. told Ms. McLeery that he did not understand what had happened. He said that both he and Ms. L. had been sober when she verbally and physically attacked him. Ms. L. tried to confine Mr. S. in the bathroom, but he was able to get away and call the police. Mr. S. did not know where Marcus was when the fight took place.
35Mr. S. showed Ms. McLeery pictures on his phone of an injury to his right bicep. He said that Ms. L. had bitten him about six months earlier, and that this was not the only injury she had caused to his body. Mr. S. took off his shirt to show Ms. McLeery a scar from the bite mark.
36Shania was still living with her paternal aunt and father at this time. Lance had been admitted to the Royal Ottawa Hospital. Mr. S. wanted to bring Marcus to his home in Gatineau. Ms. McLeery told him that, since he and Ms. L. had violated the July VSA by fighting in front of Marcus, he would need to be taken to somewhere safe until the Society could assess the situation. Mr. S. agreed that Marcus could be taken to stay with Shania at her aunt’s house.
37Ms. McLeery interviewed Tanya that same evening. Tanya expressed the view that her mother was not able to care for her children. She said that she had seen Ms. L. drinking a week earlier. Although she had not seen her mother or Mr. S. drinking since then, she suspected that there would be empty bottles on the premises. When Ms. McLeery and Tanya opened the garbage bags in the backyard, they found over 150 bottles and cans. Tanya also alleged that Ms. L. often snorted cocaine on the washing machine. No drugs were found in the house, but Ms. McLeery discovered a false book containing a crack pipe.
38On August 4, Ms. Adamson spoke again with Mr. S. about the August 2 assault. According to her affidavit, he told her that he and Ms. L. were no longer in a relationship because she was very abusive and he could not take it any longer. He told Ms. Adamson that he had been using cocaine because of the abuse. He confirmed the anonymous report that the Society had received in late July about an incident during which Ms. L. grabbed Shania by the neck and choked her. He expressed the view that Ms. L. was mentally unwell and frequently very angry. He again supported Marcus being in Ms. T.’s care.
39Later that day, Ms. Adamson spoke with Ms. L. She denied any alcohol or drug consumption and claimed that she was being set up by her daughter. She said that she and Mr. S. were still in a relationship and are engaged to be married. Ms. Adamson advised Ms. L. that she would be seeking a three month order placing Marcus with Ms. T. and Shania with her father and Ms. T. She also told her that the Society would be seeking a condition that Ms. L. obtain treatment for addiction. Ms. L. again denied any problem and said she would prefer that Marcus be placed with her mother, C.L.
40In her October 18, 2021 affidavit, Ms. L. admits that she got into a physical altercation with Mr. S. on August 2, 2021. She suspected that he had talked with another woman and told him to return the clothes she had given to him and leave the house. When he refused, she lunged at him to try to remove his shirt and, in doing so, scratched his neck. She says that Mr. S. cut his face while shaving that day but admits that she may have also scratched his face accidentally. She denies that she was intoxicated that day, and says that Marcus was in another room when the fight took place. She acknowledges that she bit Mr. S. on one other occasion, when he allegedly offered to give Tanya cocaine.
41With respect to the empty alcohol containers found in the backyard, Ms. L. says that she and Mr. S. had been accumulating them so they could return them to the liquor store and collect the deposits on them.
42In his November 1st, 2021 affidavit, Mr. S. downplays the incidents when Ms. L. bit him and assaulted him on August 2, 2021. He says that the bite did not cause him any serious injury and that there was only some shirt grabbing, and no physical striking or hitting, during the more recent altercation. He says that he told the police that he did not want to press charges.
Events since August 4, 2021
43Following the alleged August 2 assault, Valery Vinet took on the lead role in the Society’s investigation.
44Ms. Vinet met with Mr. S. on August 11, August 20 and September 17, 2021. During these meetings, Mr. S. said he had not taken any cocaine since early July but smokes up to two joints of marijuana each day. He was seeking an assessment for substance abuse, had been attending AA meetings online and had completed an online parenting course. Mr. S. told Ms. Vinet that he and Ms. L. had an unhealthy relationship. Their fights took place mostly when they had been drinking or when he was high.
45On August 20 and again on September 17, Mr. S. admitted to Ms. Vinet that he and Ms. L. had been in contact face-to-face and by phone in violation of the no-contact order. Ms. L. had come over with Ms. T. to pick something up. Mr. S. asked Ms. L. to stay over, but she declined and left after a short period of time.
46At the September 17 meeting, Mr. S. told Ms. Vinet that he was submitting a joint plan of care with Ms. L., but recognized that they had “work to do on themselves first”. He has started to attend group therapy at the Centre Jellinek, a rehabilitation centre in Gatineau. In his affidavit on this motion, he says that he has been clean since July 2021. During a home visit on October 25, 202, however, Mr. S. told Ms. Vinet that he had last used cocaine on September 7, 2021. This information was confirmed by an intake counsellor at the Centre Jellinek.
47Ms. Vinet met with Ms. L. on August 13 and 19, and for a third time on September 13. At the second meeting, Ms. L. told Ms. Vinet that she had been drinking about four beers about three times a week but had stopped about a month or a month and a half earlier. She acknowledged that Mr. S. had been using cocaine at her house. Ms. L. also acknowledged that she and Mr. S. fought in front of Shania and this was not good. She admitted that she was better able to handle her emotions when she was not drinking. Ms. Vinet recommended sources of counselling for relationships, substance abuse and anger management.
48Ms. L. attended the September 13 meeting with her friend and former employer, C.D. They discussed a plan for Ms. L. to move from her current neighbourhood. Ms. L. again acknowledged that drinking made her emotional and said that she had last had a drink a month earlier. This contradicted earlier statements that she had not consumed any alcohol since early July.
49Ms. L.’s mother, C.L., has filed an affidavit supporting Ms. L.’s plan to have Marcus and Shania returned to her care. She acknowledges her daughter’s anger management issues but denies that she has seen any signs of ill-behaviour towards her grandchildren or that any sign of alcohol or drug addiction. She expresses the view that Shania and Marcus’ best interests would be served by living with their mother. There is no indication in C.L.’s affidavit that she has read the Society’s affidavits and so is aware of the information in them.
50Ms. L. has also filed an undated letter from her friend C.D. C.D. speaks positively about Ms. L.’s parenting skills and expresses the view that her neighbours and Tanya have made false reports about her to the Society. She expresses the opinion that, if anything, Ms. L. is too lax in disciplining Shania. C.D. again does not mention much of the information set out in the Society’s affidavits.
What temporary order is appropriate?
(a) Applicable principles
51Section 94(2) governs the process where a child is apprehended and brought to a place of safety, but a hearing under s. 101 will not take place immediately:
(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 be placed in a place of temporary detention, of open or of secure custody.
52The court is required to consider first whether an order for placement is appropriate under clauses (a) or (b) before considering an order under clause (c). Further to s. 94(4), the court shall not make an order under clause 2(c) unless it “is satisfied that 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 under clause 2(a) or (b)”.
53Further to s. 1(1) of the Act, its paramount purpose is to promote the best interests, protection and well-being of children. Section 1(2) recognizes that the “least disruptive course of action that is available and is appropriate in a particular case to help a child … should be considered”, and that services to children should be provided in a way that respects a child’s need for “continuity of care and for stable relationships within a family and cultural environment”. As a result, in making a temporary custody order, the court should seek the least disruptive arrangement for the child, so long as this is otherwise consistent with the child’s best interests, protection and well-being; Catholic Children’s Aid Society of Toronto v. K.A., [2008] O.J. No. 3582, at para. 36.
54Other considerations in making a temporary custody order include the risk to the child in the placement; the Society’s ability to control any risks; the merits of each party’s plan in light of the child’s particular needs; the strength of the emotional ties the child has to family and community members, and to any sibling; the abilities of the proposed caregivers to meet the child’s needs; and the child’s wishes, if they can be reasonably ascertained; Catholic Children’s Aid Society of Toronto, supra, at para. 38.
(b) Where should Shania and Marcus be placed?
55On the evidence currently before me, I find there is a risk that Marcus and Shania will suffer harm in Ms. L.’s care, and that they would not be protected adequately through a supervision order. I accordingly cannot order them returned to her care at this time.
56Based on the evidence on this motion, Ms. L. and Mr. S. were drinking regularly while the children were in their care prior to June 17, 2021. Mr. S. was also using cocaine regularly. I find that Ms. L. continued to drink alcohol while Shania and Marcus were in her care after June 17, even though she signed an undertaking not to do so. On the evidence before me, I do not believe that Ms. L. consumed only one beer after June 17, or that she has not consumed any more alcohol since July 19, 2021. Ms. L. admitted to Ms. Vinet during their September 13 meeting that she last drank a month earlier. This means that she continued to drink despite her denial to the contrary.
57In order to accept Ms. L.’s denial that she has ever had too much to drink while caring for her children, I would have to believe that Shania, Lance, and Tanya lied to Ms. Adamson, and I would have to disregard the physical evidence of her drinking — the cases of beer in her kitchen in June, the containers found on her front porch in July, and the 150 empty bottles and cans found in the backyard in August. I would also have to disbelieve the evidence of both Ms. Adamson and Ms. Vinet about what Ms. L. herself told them. According to Ms. Adamson, Ms. L. told her on June 18 that she drank four beers on June 17. According to Ms. Vinet, Ms. L. admitted to her on August 19 that she had been drinking about four beers three times a week prior to the incident in June.
58Ms. L. and Mr. S. have also fought frequently in front of Shania and Marcus. Sometimes these arguments have escalated to physical violence, resulting in injury to either Mr. S. or Shania. I find, based on Ms. Adamson’s evidence, that Ms. L. grabbed Shania by the hair and choked her on at least one occasion. This allegation was admitted by Mr. S. on August 4, 2021. His attempt to resile from the admission by saying he did not personally witness this incident makes little sense since the incident occurred when Shania intervened in a physical altercation involving him.
59I find that Ms. L. lacks insight on how her drinking and her temper affects her parenting. At para. 37 of her October 18, 2021 affidavit, she states that her alcohol consumption “has never interfered with my daily tasks nor my ability to care for my children”. As she has admitted, however, she nearly fell on top of Marcus on June 17, 2021, and Shania had to take him outside of the house to ensure that he was safe. Her anger management issue led to her leaving Marcus alone in another room while she confronted Mr. S. about his suspected communication with another woman on August 2, 2021. She physically assaulted Shania when she tried to intervene between another fight between her and Mr. S.
60Ms. L. has taken some steps recently to address the issues that led to Marcus and Shania being removed from her care. She has been attending AA online and recently completed an online anger management course. These are positive first steps. Her November 1 affidavit, however, shows that she still does not understand or accept the impact of her behaviour. She admits that, during a recent access visit, she threatened to punch Shania in the mouth because Shania swore at her. Ms. L. states that she now realizes that this was inappropriate, but does not seem to understand that Shania might legitimately fear what she might do, based both on this threat and Ms. L.’s past behaviour. She instead expresses the opinion that Shania wants to stay with her father because he is less strict.
61Mr. S.’s account of his relationship with Ms. L. has changed over time. On August 2, 2021, he told the police that she had assaulted him. He had three to four inch long scratch marks on his face and showed a Society worker scarring from a bite inflicted by Ms. L. six months earlier. Two days later, he told Ms. Adamson that he had ended the relationship because Ms. L. was abusive towards him. He acknowledged to Ms. Vinet again a few days later that he and Ms. L. had an unhealthy relationship. In his November 1st, 2021 affidavit, however, Mr. S. denies that Ms. L. hit or struck him on August 2, 2021, denies that the earlier bite resulted in any significant injury, and denies that he ever told Ms. Adamson that Ms. L. was abusive.
62Mr. S. has also given inconsistent statements about Ms. L.’s behaviour towards Shania. On August 4, he told Ms. Adamson that Ms. L. had choked Shania when she tried to intervene in an assault on him. In his November 1st affidavit, he denies that he witnessed this incident.
63Mr. S.’s attempts to change his story are not convincing. It is not unusual for victims of domestic violence to recant their allegations. I do not see any reason why Ms. Adamson and Ms. Vinet would have misrepresented or misunderstood Mr. S.’s statements to them or misreported they saw on August 2. Mr. S.’s denial that Ms. L. hit or struck him or seriously injured him is contradicted by her own admission that she scratched and bit him, and by the physical evidence of his injuries on August 2.
64There is another aspect of Mr. S.’s conduct that concerns me. During his September 17, 2021 meeting with Ms. Vinet, they discussed the possibility that his father could monitor his visits with Marcus to ensure that he and Ms. L. were respecting the no-contact order and not drinking while Marcus was in their care. In Mr. S.’s affidavit, however, he says that his father has serious dementia. He would therefore be unable to supervise Mr. S.’s visits with Marcus in any meaningful way. Mr. S.’s failure to mention his father’s dementia to Ms. Vinet during their discussion nof the supervision plan indicates either poor judgment or a casual disregard for the Society’s restrictions.
65Mr. S., the children’s maternal grandmother C.L., and Ms. L.’s friend C.D. have each expressed the view that Ms. L. is a good parent and that Shania and Marcus should return to her care. I place limited weight on Mr. S.’s views because they have changed so radically over the past two months. I do not have confidence that C.L. and C.D. have all of the information that has been put before me.
66Shania and Marcus have been exposed to frequent fights between Ms. L. and Mr. T., which have escalated to physical fights at least three times (when Shania attempted to intervene, on June 17, and on August 4, 2021). Ms. L. also pulled Shania’s hair, pushed her against a wall and choked her on one occasion. I am not confident that Ms. L. would not do this again, given her failure to take any responsibility for her current relationship with Shania.
67Shania appears to be doing well in her father and aunt’s care. They have spoken with her teacher about an updated Individualized Education Program for her and have signed a consent for her to have counselling at school if she is interested. She told Ms. Vinet on September 29 that she feels well cared for with them and that school is going well.
68When Shania has returned to Ms. L.’s house for visits over the past three months, they have spent little time together. When they are together, they argue constantly. As already mentioned, during a recent visit, Ms. L. threatened to hit Shania. Ms. L. admits this and acknowledges that she must work to control her temper. She does not however take any responsibility for the impact of her past behaviour on her relationship with Shania, or suggest how she plans to improve it.
69Shania says she would prefer to remain in the care of her father and paternal aunt rather than return to live with her mother. She told Ms. Vinet that, if she moved back with her mother, she was worried that she or Marcus could get hurt when Ms. L. and Mr. S. were arguing. Given Shania’s age, the events of the last few months, and Ms. L.’s lack of insight into the impact of her behaviour, I must give serious consideration to her wishes.
70Marcus’ health or development does not appear to have been compromised while in Ms. L.’s care. Ms. L. has been visiting him regularly and is attentive to his needs. Mr. S. has visited less often but is also an engaged parent. Ms. L. and Mr. S. both contend that it is unnecessary and unfair to place Marcus elsewhere given the evidence that they are loving and devoted parents.
71Some of the past reports to the Society about Ms. L. may have been false or exaggerated. I also place little weight on Tanya’s statements unless they are corroborated by other evidence. There is, however, compelling evidence that many of the allegations made against Ms. L. since June are accurate.
72Marcus was at risk of a potential injury when Ms. L. almost fell on him during an argument with Mr. S. in June, and during the fight between his parents on August 4. Ms. L. has also disregarded repeated instructions by Society workers to keep his sleeping area free of hazards, and to ensure that there are no drugs or drug paraphernalia in the house.
73I find there is a risk that Ms. L. and Mr. S. will consume alcohol and drugs while the children are in their care. I do not accept Ms. L.’s explanation for the cases of beer in her kitchen in June, the beer cans found on her front porch in July, and over 150 cans and bottles in garbage bags in early August. Mr. S. initially told Ms. Vinet that he stopped using cocaine in July, but more recently admitted that he had consumed it again in September.
74Having weighed the evidence, I find there is a risk to Marcus and Shania if they are returned to Ms. L.’s care. More specifically, there is a risk that Ms. L. will ignore their well-being or injure them if she drinks or loses her temper. Mr. S. cannot safeguard against these risks given the no-contact order currently in place.
75I am furthermore not satisfied that there are orders I can make that will protect Shania and Marcus from harm, because I am not confident that Ms. L. and Mr. S. would respect such orders.
76Both Ms. L. and Mr. S. breached the June VSA. Ms. L. admits that she consumed alcohol on July 16, although she claims she only had one drink. Mr. S. admits that he continued to use cocaine until mid-July. They did not attend couples counselling or take steps to arrange for an intake appointment for addictions counselling prior to August 4.
77In her affidavit on the motion, Ms. L. states that she was “unaware of all the allegations that the Society was using against me” when she signed the June VSA, and would have consulted a lawyer had she known about them. It is not clear what allegations she is referring to. Based on her own affidavit evidence, however, Ms. L. was not unaware of the terms of the June VSA. She simply decided that she did not need to comply with them, because she felt she did not have a problem with alcohol or drugs and did not need any counselling.
78Ms. L. and Mr. S. also violated the July VSA. They got into an argument that escalated to a physical altercation on August 2, 2021. This violated their undertaking to ensure that the children in the home were in an environment free of adult conflict. Ms. L. and Mr. S. also breached the term requiring that the home be kept clean and free of any health or safety hazards, including drug paraphernalia.
79Finally, I find that, as admitted by Mr. S. to Ms. Vinet, he and Ms. L. have repeatedly violated the no-contact order since August 2. Ms. L. denies this. I do not believe her denial because Mr. S. has gone from saying the relationship is over due to her abuse in August and September to saying that she never abused him and proposing a joint plan of care in late October. I do not see how he would have had such a change of heart absent repeated contact with Ms. L.
80I do not find that continuing Shania and Marcus’ current placements threatens the long-term stability of the family or the bonds between its members. Ms. L. and Mr. S. regularly spend time with Marcus. Given recent history, I do not think that forcing Shania to return to live with her mother against her wishes will strengthen their relationship, given Ms. L.’s lack of insight into the reasons for the problems in that relationship.
81I therefore conclude that Marcus and Shania should remain in their current placements, subject to the same terms set out in Justice Blishen’s October 27, 2021 order.
Justice Sally Gomery
Released: November 30, 2021
COURT FILE NO.: FC-21-CP-43
DATE: 2021/11/30
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
THE CHILDREN’S AID SOCIETY OF OTTAWA Applicant
– and –
I.L., M.S., and C.T. Respondents
Caitlyn Symsyk-Dekker for the Applicant Jennifer Ho for the Respondent I.L. Alyssa Denley for the Respondent M.S. No one appearing for the Respondent C.T. Julie Guindon appearing for the Office of the Children’s Lawyer, on behalf of S.
HEARD: November 9, 2021
decision on temporary care and custody motion
Madame Justice S. Gomery
Released: November 30, 2021