Children’s Aid Society of Waterloo Region v. J.L.M., 2011 ONCJ 734

WARNING The court hearing this matter directs that the following notice should be attached to the file: This is a case under

Part III of the Child and Family Services Act and is subject to one or more of subsections 48(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act , which deals with the consequences of failure to comply, read as follows: 45.—

(7) Order excluding media representatives or prohibiting publication. — The court may make an order, . . . (

c) prohibiting the publication of a report of the hearing or a specified part of the hearing, where the court is of the opinion that . . . publication of the report, . . ., would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.

(8) Prohibition: 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) Idem: order re adult. — 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. . . . 85.—

(3) Idem. — A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(

c) or subsection 45(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. Cambridge Registry No. 08/3126 DATE: 2011·VII·27 CITATION: Children’s Aid Society of Waterloo Region v. J.L.M. , 2011 ONCJ 734 ONTARIO COURT OF JUSTICE BETWEEN: CHILDREN’S AID SOCIETY OF THE REGIONAL MUNICIPALITY OF WATERLOO, Applicant, — AND — J.L.M., R.G.Jr. and B.G., Respondents. Before Justice Paddy A. Hardman Heard on 24 June 2011 Decision on motion for

summary judgment released on 27 July 2011 Ms. D. Brown ................................................................................. counsel for the applicant society Respondent mother, J.L.M. ................................................................................. on her own behalf Respondent father, R.G.Jr. ................................................................................... on his own behalf

Grant W. Schafer ....................................... counsel for the respondent paternal grandmother, B.G. [ 1 ] JUSTICE P.A. HARDMAN:— This is a motion seeking

summary judgement on an application for status review issued December 30, 2009 but amended January 27, 2010 to seek crown wardship without access. The two children who are subject to the application are a girl, A.G., born September […], 2007, now almost four years of age, and a boy, R.G., born November […], 2008, being over two and a half years old. [ 2 ] While the mother and father had filed a joint answer as well as an amended answer and appeared at the hearing, neither had filed any documentation for the motion.

Essentially the parents supported the paternal grandmother’s plan to have the children placed with her. The paternal grandmother, B.G., was made a party on October 18, 2010 and did file affidavits in support of her plan. She was represented by counsel at the hearing. BACKGROUND Statements of Agreed Facts filed July 16, 2008 and August 5, 2009: [ 3 ] The society had a number of historic protection concerns regarding both the families of the mother and of the father. There were concerns about substance abuse and domestic violence in the mother’s family home and indeed she was made a crown ward.

As a youth, she struggled with emotion management, structure and was not open to counselling. In the father’s home there had been issues regarding drugs, school and adult supervision although the major drug concerns occurred after the father was an adult. [ 4 ] When A.G. was born, the parents were living with the grandmother B.G. and there were concerns about the capacity of the young parents to deal with the newborn child who had been born prematurely. The parents agreed to work with the society pursuant to a service agreement with a number of supports including counselling.

As a result of the domestic arguments between B.G. and the parents as well as concerns about the behaviour of BG’s other children in the home, the parents and the child at the insistence of the society moved out on their own. [ 5 ] During this time there were a number of concerns. The condition of the family home was a problem: the home required significant repair and had numerous pets and pet odours.

Further, on January 28, 2008, there was concern about a confrontation between the parents and B.G. that involved B.G. being intoxicated; in April 2008, police were involved in two further domestic disputes between the parents and B.G..

As the parents were not cooperating with the society in resolving the issues, the society sought an interim order placing the child with the parents subject to an order of supervision May 28, 2008. [ 6 ] On July 16, 2008, the child A.G. was placed with her parents subject to a supervision order for a period of eight months. [ 7 ] During the period of this order, there were concerns about the failure of the parents to follow up on counselling and the mother’s failure to obtain a mental health assessment.

There were two police reports about the mother screaming so loud that the police were called. [ 8 ] Further, the mother hid her pregnancy with her next child R.G. as she was afraid that the society would want to be involved. When R.G. was born November […], 2008, he was “jittery” and his meconium tested positive for Cannabinoids. His hair on March 19, 2009 was found to be too short for testing. [ 9 ] Despite the results of the mother’s test with levels indicating that the mother was a chronic user of marijuana, the society still sought the placement of both the children with their parents.

Both parents agreed to attend for substance abuse counselling and further testing. [ 10 ] On April 3, 2009, given the incident of the drug use by C in BG’s home with other children and the escalating negative behaviour of C, the society determined that B.G. could not care for her grandchildren at her own home. On April 6, 2009, when B.G. was informed of the decision, she was upset.

When the worker suggested that she could care for them in their own home, she told the worker that their home was not appropriate and that she had all the things necessary for the children at her house and that the mother was a psychopath who should not be left in charge of the children. B.G. was also informed that as a result of the concerns about C, her home was no longer being considered as a kin placement. [ 11 ] On April 6, 2009, the society attended unannounced at the home of the parents to tell them about not being able to leave the children at BG’s home.

There they discovered that the home environment was “unsafe and hazardous”. There was no running water, no working toilet, and no food. The home was cluttered with various items including rotting garbage. AG’s hair was sticky and crusty to the touch. Apprehension (April 7, 2009 from the parents) [ 12 ] On April 7, 2009, both children were apprehended and placed in the care of the society. The older child A.G. was admitted to the hospital over night when it was discovered that she suffered from malnourishment and dehydration.

The foster parents were instructed to ensure that A.G. ate three meals a day plus snacks in between and to increase her liquids. The medical professionals were concerned about the levels from her blood work, having to do with her liver, electrolytes and bones. [ 13 ] At the time of apprehension, the child R.G. had a concerning cough but despite having been prescribed a puffer in February 2009 for the same condition, the child’s condition still persisted in April and the parents were unable to provide the society with the medication.

[ 14 ] It was not until after the apprehension that the society received results from the hair tests from A.G. and the mother. On April 23, 2009 the society received the results of AG’s hair test taken March 17, 2009 which were positive for Cannabinoids in a very high concentration. That same day, the society learned that the mother’s sample tested on March 17, 2009 was positive for Cannabinoids in the medium range.

On June 3, 2009, the results of the father’s test from April 21, 2009 were found to be positive for Cannabinoids also in the medium range. [ 15 ] In May 2009, the parents indicated to the society that they were prepared to follow through with finding suitable housing and attending relapse prevention counselling. The mother said that she had not used drugs since the apprehension.

She said that she used drugs and poor coping skills because she had been feeling tired and depressed looking after the children while the father was at work. [ 16 ] At one time during this period, the mother became angry during a conference with the society and had to leave the meeting to calm down. There was also a concern about the mother yelling at the father and upsetting A.G. during an access visit. [ 17 ] The grandmother B.G. expressed an interest in having the children placed with her as she said that she had been a regular caregiver for them prior to the apprehension.

However, B.G. was having issues at this time with one of her own children, C, who had behaviour issues and was involved in drugs and crime. The society felt that B.G. had failed to follow through with the recommended programs and supports for C, who had been expelled from school due to a knife incident. [ 18 ] Further, on June 22, 2009, the society received a copy of a hair test taken from B.G. on May 27, 2009.

While the results were below the level of detection for Cannabinoids, the test was positive for alcohol and indicated a concentration which is considered to reflect chronic alcohol abuse. [ 19 ] Therefore, on July 2, 2009 the society did not approve the kinship assessment for the grandmother B.G. based on receiving her positive hair screen indicating chronic alcohol abuse and her ongoing issues with son C. [ 20 ] After argument on the motion seeking interim care of the two children, Justice Carr placed the two children with grandmother B.G. on July 10, 2009 subject to terms of supervision.

Placement with Grandmother [ 21 ] Given the direction of the court on an interim basis, the society amended their applications and a consent order was made August 5, 2009 placing the two children in the grandmother’s care for six months. One of the terms was that the parents and the grandmother B.G. were to refrain absolutely from any use of alcohol, illegal drugs and abuse of prescription drugs. B.G. also agreed to ensure that her home was free of any hazards, violence and illicit drugs. B.G. agreed to attend counselling for personal issues, parenting, and the impact of past substance use on children.

She also committed to ensuring that the children had healthy and nutritious meals and that their medical, dental, developmental and emotional needs were met appropriately. [ 22 ] On November 11, 2009, B.G. told the society that she was in counselling at the Family Counselling Centre of Cambridge and North Dumfries to address her alcohol use. [ 23 ] However, BG’s hair test taken October 23, 2009 which was received by the society November 27, 2009 still indicated chronic alcohol abuse. [ 24 ] Despite a number of concerns, the society sought an eight month extension of the placement of the children with B.G. in the status review application issued December 30, 2009.

In that document, the worker noted that the parents of the children had completed their substance abuse counselling and were engaged in personal counselling regarding strategies around parenting, relationships and personal emotion management. The mother continued to have difficulties regulating her emotions in access, yelling and swearing during access. [ 25 ] In the application, the worker set out that the children were both “thriving” in the care of B.G.. She noted that they appeared to be content and were meeting their developmental milestones.

She also noted that B.G. had been observed to be “appropriate and nurturing in responding to their needs”. It was also noted that B.G. was working appropriately with the parents in helping with supervised access visits on Sundays. [ 26 ] The society noted in the application that despite the court order not to consume any alcohol, B.G. continued to “use alcohol” to manage stress. On November 27, 2008, the society received the grandmother BG’s hair screen results which stated that B.G. had chronic abuse test levels.

However, the worker stated in the application for status review supporting continued placement with B.G. that B.G. was “making progress in working to understand why she turns to alcohol to deal with stress” and that B.G. was attending counselling at Cambridge Family Counselling Services of Cambridge and North Dumfries to “develop strategies to deal with stress so that she does not rely on using alcohol to cope with stress”. [ 27 ] However, before the first return date of that application on February 23, 2010, the society was notified January 5, 2010 that B.G. had been in a motor vehicle accident and arrested for drinking and driving on January 3, 2010 and that her grandchildren had been with her at the time.

Apprehension (January 6, 2010 from B.G.) [ 28 ] On January 6, 2010, the society workers with the police present attended to apprehend the children. They observed A.G. sleeping on the floor in the living room covered in blankets without any clothes or diaper on in front of the fireplace. B.G. said that A.G. had not been feeling well and had had vomiting, diarrhoea and fever, and had not slept well the night before.

[ 29 ] The child R.G. was noted to be lethargic with a significant rash on his cheeks and below his nose with very red and swollen eyes. Both children appeared very tired with red eyes and both appeared sick as evidenced by their deep coughs. [ 30 ] When asked by the society worker if either child had seen a doctor, B.G. said that they had had an appointment for January 4, 2010 but that she had had to cancel it and had not rescheduled another.

She said that no cream had been prescribed for RG’s face and that it had only been like that since the day before. [ 31 ] B.G. told the society workers that she loved her grandchildren and would not harm them but was reminded by the worker about the term not to consume alcohol and the accident involving the children while she was under the influence of alcohol. [ 32 ] One of the society workers noted that at first B.G. said that the grandchildren were not with her while she was driving.

The worker noted that B.G. put a diaper cream prescribed for one child in April 2009 on the other child despite the child having no diaper rash. B.G. assisted in getting the children ready for foster care. [ 33 ] The workers noted that both children appeared to be lethargic, difficult to engage and sluggish. Neither of the children showed any interest in the lunch provided and both were initially non-responsive to activities. Both were observed to be feeling generally unwell with very congested coughs, very tired and lethargic and not active.

Both children were noted to emit a foul odour during the period of time that they were present at the society’s office. [ 34 ] On the day of apprehension, the children were seen by a paediatrician who diagnosed R.G. with impetigo and prescribed Fucidin cream for his face. R.G. was also found to have fluid in his ears and a bad cough which would require monitoring. A.G. was diagnosed with a viral infection and a speech delay and attendance at KidsAbility was recommended.

The paediatrician also recommended follow up with the children’s family doctor. [ 35 ] On January 27, 2010, the society amended their application for status review to seek crown wardship without access so that A.G. and B.G. could be placed for adoption. The children had been out of the care of their parents since April 2009 and although the parents had begun to address some of the protection concerns, the society believed that the children would be at risk of physical and emotional harm if returned to them and permanency planning had to be started. [ 36 ] On April 27, 2011, the society filed a motion seeking

summary judgement regarding the amended status review application. ISSUES [ 37 ] As the parents are not seeking placement of the children with them, most of the evidence filed by the society is to support their position that there are protection issues relating to the paternal grandmother B.G. who has filed a plan that cannot be addressed by a supervision order. [ 38 ] There are a number of areas of concern: Parenting History [ 39 ] A review of the community concerns regarding BG’s own children discloses a home with little expectation or control of the children living there.

There are many areas that reflect the inability of B.G. to deal with the issues of her four boys. School Issues [ 40 ] The father of the children before the court is R. born May […], 1987 who is the oldest of BG’s four boys. In grade five, he missed 12 days and was only late once. However, in grade six, seven and eight, he missed over 27 days each year and was late a few times. [ 41 ] D. was born January […], 1990. Early in his school attendance, he was provided with an Individual Education Plan (IEP) to provide accommodation for his learning and behavioural difficulties.

He demonstrated verbally and physically aggressive behaviour when he was angry or frustrated. He too had attendance issues: by grade 6, he had missed about 72 days and been late five times. Even in the specialized Bridges program he was absent 13 times and late five between September 2004 and January 2005. D. was seen to have difficulties with people in authority and took little ownership for his behaviour.

The school concerned about his truancy wrote the mother a number of letters cautioning her about the obligation of the children to be in school. [ 42 ] N. born May […], 1993 also was provided with an IEP to customize his program expectations. Starting from kindergarten N had issues at school. Starting in grade four, N. started missing more and more school. In grade six, he missed 27 days and was late 17 times. In grade seven, the number of days missed rose to over 32 and the lates were noted as 53 in that year! His grade eight report card notes 31 absences and 19 lates.

As a result of his attendance and impulsive behaviour concerns, he was referred to the specialized Fast Forward program for the 2007-2008 school year. Despite the attempt to provide assistance, N. continued to be absent and unsuccessful in 2008, 2009 and 2010. [ 43 ] In the school records filed, there are eight separate letters reminding B.G. of a parent’s obligation to ensure a child’s attendance at school and reminding her that N. was continuing to be absent. [ 44 ] C., the youngest, born August […], 1995, was given an IEP in grade one. He was absent in senior kindergarten 19 times and late 24.

In grade one, he missed over 13 days and was late 38 times. C. missed 16 days (36 late) in grade two. By grade seven, his absences had increased to over 49 days and 40 lates. C. too ended up in a specialized program U-Turn. In the Choices program, C. was

in trouble for talking about holding up a student and threats. [ 45 ] Once again B.G. received letters from the school regarding her responsibility to have C. in school. [ 46 ] It seems clear that B.G. was unable to ensure that her children attended school, a fundamental responsibility for a parent. It is hard to understand how B.G. has stated to people that her children did not cause her any difficulties and that she was listened to by her children. In her own affidavit, B.G. states that she does not “tolerate” her children saying no to her.

Clearly BG.B.G. did not attempt to get her children to school or was unable to get them to attend school. Community Issues [ 47 ] Filed with the court was an exhibit two inches high representing the police occurrence information involving B.G. and her family between 1999 and 2010. While a couple of the reports deal with situations where the family member is a complainant, the rest involve concerns about the behaviour of members of the family in the community.

Further, most of the issues involve the alleged behaviour of BG’s four children in the community. [ 48 ] Her oldest, R., the father of the children before the court was involved historically with causing a disturbance, shoplifting, and damage to a tree on school property. There were also concerns that he may have been selling drugs to children at a plaza located near a senior public school. More recently, there have been numerous police calls regarding verbal domestic conflict between R and the mother of the children before the court.

While he obtained his G1 licence in August 2006, it was later suspended for driving unaccompanied by a qualified driver. In August 2008, R. was charged with driving without a licence (as he had not applied after the suspension) or insurance or ownership in a car with an unauthorized plate. [ 49 ] BG’s third child, N., appears from the records to have the least police contact for BG’s four children. In 2007, there was concern about N and younger brother C. pointing plastic guns at some girls.

In February 2008, N was found to have been shooting a pellet gun from the windows of their home toward the school, hitting at least one person. After restitution had been made, it was recommended that the matter be diverted to a program.

In December 2009, there appears to have been a domestic dispute during which his girlfriend injured herself. [ 50 ] The majority of the police contacts have been as a result of the actions of D. and C. who have had a number of issues regarding violence, drugs and property offences. [ 51 ] It is of note that problems regarding the children’s behaviour started before they were even of an age to charge.

D. was caught throwing a rock at a vehicle at six years of age, involved in a mischief at nine, and a threatening at age eleven. [ 52 ] There were also many incidents when the neighbours and / or school authorities were convinced that there were other “mischiefs” perpetrated by one or all of the children but the police were not in a position to charge. [ 53 ] Indeed the concern about the number of teens hanging about BG’s home and the vandalism in the area gave rise to the police and the school board seriously contemplating the placement of a surveillance camera on school property focused on BG’s home.

Police patrols were increased to deal with the problems. When the police raised the concerns with B.G., she told them that she was aware of what her children were up to and takes responsibility for them. [ 54 ] The police records also disclose a concern that B.G. was not being of assistance but instead was protecting her children.

While there have been occasions where B.G. has brought her child in for questioning, there were other times where she appeared to know that a warrant was outstanding and yet the child was in her home. [ 55 ] There are many times that B.G. or her other children have provided alibis when a complaint was made. It was of interest to note that when D. was accused of driving near two individuals whom he was prohibited from contacting, B.G. and other family members provided an alibi for his actions and whereabouts at the time of the incident.

However, D. subsequently acknowledged admitted driving in the area and seeing the two people although he denied yelling at them. Control in the Home [ 56 ] While the evidence suggests that the children were somewhat out of control in the community, B.G. told authorities that she had no problems with them in the home. However, it is clear that despite having older children living in the house, they have not assisted her financially or in the care of the home. Indeed, B.G. complained at one point in January 2010 to a counsellor that R. was breaking in and stealing food and toilet paper from her.

Further, in January 21, 2008, a worker witnessed D. become verbally abusive and demanding toward B.G.. [ 57 ] Over the past few years it appears that the children have come and gone from the home, sometime staying with friends or girlfriends or sometimes staying with a relative. There is no evidence that any of these children bring any kind of stability into BG’s home: there is no evidence of stable jobs, school or relationships. Given their histories, they cannot help but contribute to the chaos and concerns that have surrounded BG’s home for years.

Ability to Access Services for Children [ 58 ] In her affidavit, B.G. denies that she refused to get counselling for son C. and refers to the counselling records for Lutherwood that have been filed. In fact, initially the counselling was set up as a result of a call April 2009 but as a result of a number of no-shows and cancellations the file was closed June 2009. Then a further intake was completed in July 2009 and once again due to no- shows the file was closed on October 2009.

In 2010, records show that again counselling was organized March 2010 and that B.G. and C. attended once but that C did not attend the second appointment set up for him on his own. B.G. told the counsellor that he was at home sleeping. The appointment was rescheduled but C. did not appear so since he was in custody. Counselling was put on hold until C.

was released from jail and appears not to have been restarted. [ 59 ] In reading the material, it appears that the focus for B.G. in trying to get C. into counselling was related to trying to get her grandchildren into her care and not a result of the fact that she was concerned about C.’s behavioural difficulties. The concerns of his violence, profanity and aggression since kindergarten were not addressed by B.G..

By grade 8, C. was intimidating teachers and frightening students yet his needs were not addressed, B.G. insisting that there were no problems at home. [ 60 ] Further, there were times where there was concern about C.’s mental health as he was threatening self harm and yet still B.G. did not follow through with counselling for him.

Instead she indicated that she helped to take care of her grandchildren and did not want the society to be involved because she did not want to risk losing the grandchildren. [ 61 ] Despite the Kidslink Children’s Mental Health Access Centre “Needs Assessment Report” dated April 24, 2009 recommending that C attend the Lutherwood Day Treatment Program and B.G. agreeing, that program never happened. The Condition of the Home [ 62 ] BG’s recurring difficulties historically in maintaining a home that is clean and uncluttered has been documented not only by the society but also by other community members.

For example, the police attending in April 2004 noted that the home was extremely untidy and that there was debris throughout. [ 63 ] In October 2005, workers noted that BG’s home was cluttered and untidy with no working smoke detectors despite having them on the premises. The bath tub was filled with dirty water and was unusable.

There were block heaters in place to dry the marijuana that they had taken in to raise extra money. [ 64 ] During the period from August to October 2006, there were issues about the lack of working smoke detectors, people sleeping in the basement and clutter impeding movement around the home. [ 65 ] In November 2007, the house was again noted as messy and smelling of burnt wood but the pathways were free of obstructions.

In December, 2007, it was confirmed that the gas had been turned off but that B.G. was out paying the bill. [ 66 ] After the placement of the children with B.G. in July 2009, there were three months without major issues regarding the condition of the home although contact by the society was limited. In October concerns began to arise. [ 67 ] However, it is the more recent issues about B.G.’s home that are the most concerning.

Filed with the court are photographs of the unsafe and unacceptable conditions of BG’s home throughout 2010 and 2011. [ 68 ] As a result of concerns about the condition of the home noted during a scheduled visit August 27, 2010, the worker spoke to her supervisor and the society decided that B.G. should contact the fire department.

The worker had noted: • Excess clutter throughout the home • Hazards including large areas with dirt and small pieces on the floor • Structural issues • No screens on upper windows • Exposed electrical wiring • Hazardous clutter including paint cleaning supplies, appliances and other random household items throughout the home [ 69 ] On September 13, 2010, the fire inspector added a number of other concerns: • Hazardous electric wiring • The use of multi-outlet plugs • No fire extinguisher in the home • An over-fused electrical panel • No overhead fan above the stove • Propane stored in the home • Some smoke detectors not functioning • Wood burning stove not up to standard • A WETT inspection of the stove was needed and the insurance company informed [ 70 ] Between August 2010 and the present, the society has attempted to have B.G. address the health and safety concerns of her home.

The issues have been many: the use of an uncertified wood stove, piles of wood in the home, the number of pets, dog feces in

and around the home, clutter and debris everywhere, no smoke alarms, an unsafe dryer plug, and many more including those identified by the worker and inspector in August. While there have been some changes although very slow to happen, there remain serious unaddressed concerns about the home. While B.G. has provided pictures to show cleanup in some of the rooms, there is a lack of comment about any improvements to the ceiling that appeared to be collapsing and the assessment of the woodstove.

B.G. has not provided any confirmation that she even has insurance, particulars sought some time ago by the society and the fire department. B.G. has failed to make changes within the time that she has promised. [ 71 ] It was the worker’s observation in September 2010 that B.G. had continued to use the dryer plug despite having been told by the fire inspector that it was unsafe to do so until it was fixed and the stove was warm to the touch.

The yard was overgrown with weeds with scrap metal pieces strewn about, random pieces of furniture, garbage and waste but when told it had to be cleaned up B.G. did not seem to understand what the matter was with the yard. The presence of dog feces in the side yard was still a concern. [ 72 ] On February 11, 2011, despite some de-cluttering in a side room and the living room and some cleaning outside, there remained outstanding structural and safety concerns, clutter in the “babies” room, and a lack of overall cleanliness.

Also B.G.B.G. had puppies in the home now as well as her four dogs. [ 73 ] On February 17, 2011, once again a non-working smoke detector was discovered and the dryer plug which B.G. acknowledged using remained unfixed. The worker observed that the puppies were lying in their own feces on a blanket in a playpen and the living room smelled of urine and feces. The worker insisted that B.G. change the blanket immediately. Further, there were still dog feces in the “spa” room. [ 74 ] Throughout this time period, B.G. has promised to have certain concerns corrected but has failed to do so.

As well, she has not kept in touch with the worker and has failed to be available for scheduled meetings. [ 75 ] On March 22, 2011, during a re-scheduled visit, B.G. refused to allow access by the worker and the fire inspector to the basement saying that her son D. had put his things down there and put a lock on the door. Despite pressure from the worker, B.G. would not allow access to the basement.

This is very concerning given what has gone on in this home before, the fact that this was a scheduled visit and the reflection on B.G.’s lack of control in her own home. [ 76 ] On March 29, 2011, the fire inspector told the society that there was a city order on the property regarding the exterior of the home. [ 77 ] BG’s failure to promptly address the issues is particularly significant given that this matter was originally scheduled for trial August 2010 and she did not get added as a party until October 2010; therefore throughout her involvement as a party she has known that trial was imminent.

Despite that information, B.G. has told the worker that she is too busy to deal with the issues identified in her home. B.G.’s Involvement with Drugs and Alcohol [ 78 ] In her affidavit, B.G. acknowledged that since 2005 when the society became involved with her family she has had a struggle with alcohol. However, she has taken the position that since the apprehension she has not consumed any alcohol.

Indeed, she did attend ten days of withdrawal management and supposedly continues to attend AA although she has not provided any sponsor’s name or confirmation of from a sponsor. [ 79 ] On a number of occasions BG’s state of intoxication was observed by the police. [ 80 ] On April 2, 2006, B.G. was involved in an accident and received a twelve hour driving suspension as she had been drinking and driving. [ 81 ] In May 2006, B.G. was home with two of her children when the police attended and found her to be “intoxicated and uncooperative”.

In October 2006 while dealing with BG’s intoxicated son R, they followed up with B.G. at home and found her to be “highly intoxicated”. [ 82 ] On November 30, 2007, a society worker followed up a community service provider’s concern about A.G. appearing lethargic. Although the worker found the child to appear well-hydrated and not lethargic, he was concerned about the state of B.G.. She had arrived at the door holding the child and smelling of alcohol. He observed her eyes to be red and pupils dilated.

When asked if she had been drinking, B.G. hesitated and said that she had had one drink but the worker felt that given how she presented she had had more. After discovering three empty “tall boy” beer cans, B.G. admitted that she had consumed all three. The worker cautioned her about looking after children after consuming alcohol. [ 83 ] In January 2008 police attended the home at the request of son R and found B.G. to be “very intoxicated”.

In September 2008, there was a complaint by a neighbour that she had consumed a beer and driven the truck with her children in the back cab. [ 84 ] For a period of time during the monitoring of her parenting of her own children, the society had B.G. attend both regular and random urine screens to monitor her alcohol use given the fact that she had her own children in her care and there were no issues.

However, BG’s hair screen on May 27 2009 returned June 22, 2009 with the result that B.G. was found to be a chronic alcohol user. [ 85 ] On October 9, 2009, the worker learned that another worker had attended BG’s home and discovered that B.G. had been drinking and smelled strongly of alcohol. The worker attended BG’s home to follow up and was told by B.G. that she had only had one drink which the worker challenged. B.G. said that she had had a drink due to financial stress.

Then the worker reminded B.G. that she was not supposed to drink or have alcohol in the home and B.G. denied knowing that she was not to have alcohol in the home despite the clear instruction of everyone on July 10, 2009. She said that she was keeping alcohol in the house for her male friends and brother, something she denies saying in her affidavit.

[ 86 ] When B.G. was re-tested on October 23, 2009 while the grandchildren were in her care, the results received November 27, 2009 still identified B.G. as a chronic alcohol user. [ 87 ] Then in January 2010, B.G. was arrested for impaired driving after being in an accident with the two grandchildren in the vehicle. Initially she told the police that she had had nothing to drink and then admitted that she had had “a couple”. She also accused the other motorist of swerving into the side of her vehicle.

As B.G. has noted, she took responsibility by pleading guilty to impaired driving resulting in a $1000 fine and driving prohibition. [ 88 ] Given that finding, the lack of counselling and her own recognition of her problem with alcohol, it perhaps should not be a surprise that B.G. drank alcohol contrary to a court order while the grandchildren were in her care.

Also one might expect that she would have empty bottles in the home as discovered by one of the workers February 17, 2011 despite the admonition of the workers and her counsel at the time of the placement of the grandchildren in her care and the explanation of expectations after the apprehension. [ 89 ] While B.G. has taken the position that she has not had anything to drink since the apprehension, her hair screens since the apprehension belie that statement.

While the tests from April 15, 2010 (.288 ng/mg), July 22, 2010 (.269 ng/mg) and January 13, 2011 (.283 ng/mg) confirm a reduction in the consumption, they also confirm BG’s continuing alcohol use. As noted by her counsel, the tests are what they are. Clearly BG.B.G. is not abstaining from the consumption of alcohol and could be consuming up to two drinks each day. [ 90 ] The issues around drugs are somewhat startling. While she may have had an issue with drugs in the past, it would appear from the testing that she has not been a drug user for some time.

However, the issue of drugs and drug use appears to be a concern in the context of the family. There are many occasions where her sons have been found to be involved with drugs. There were generally held beliefs by school authorities and neighbours that there was significant drug use going on in B.G.’s home.

Indeed there was a very serious incident where, presumably while B.G. was out, a young person somewhat unwillingly participated in drug use within B.G.’s home with her son and ended up sick due to the presence of a household cleaner in the drug. [ 91 ] On September 12, 2004, police attended the residence of B.G. to follow up on a neighbour’s complaint. The officer in speaking to B.G. and her son R noted a slight odour of marijuana from the residence. B.G. denied the police access to her residence. [ 92 ] There are two occasions involving drugs that stand out.

On October 28, 2005, the police while in the area detected the smell of marijuana emanating out of B.G.’s residence. Eventually B.G.B.G. let the police in and initially they found four boxes of marijuana buds on the floor. Although B.G.B.G. insisted that that was all that there was, the police officer did not believe her and after much persuading she ultimately walked him through the house and located a further nine baskets in the bedrooms upstairs. In total they found 38.19 pounds of marijuana drying in the home, drugs worth approximately $80,000.

Despite the value of the drugs and the concern expressed about children living in the home, no charges were laid.

There is no explanation for that decision given the facts available and despite the information in the occurrence report noting that it was thought that R.G., BG’s now ex-husband, was growing marijuana at unknown locations in the country side. [ 93 ] Regardless, it is clear from this report that the drugs were not hidden in a small room under lock and key but distributed around the home. [ 94 ] And if the fact that there were no charges in that matter is not odd enough, there was another incident in April 3, 2006.This time the society contacted the police concerned about information they had received about a large amount of marijuana in B.G.’s home and said that they had a concern about the children in the home.

As the police and the worker entered the home, there was a strong odour of marijuana and the society worker asked to search for drugs. B.G. consented and eventually she returned from upstairs holding a large Rubbermaid container. When she opened the container, the police officer observed that the contents of the container were marijuana. Both B.G.B.G. and R.G. were arrested for drug possession and R.G. was arrested for proceeds of crime as he had $1,051.10 in his possession.

In that matter, all of the charges were withdrawn. [ 95 ] In her affidavit, B.G. admits that on November 8, 2005, a different date, the society attended her home and discovered marijuana planted in her bedroom. In explanation, she blames her then husband’s girlfriend and said in her affidavit that she and the children had to move out for three weeks while the place was cleaned due to the marijuana. [ 96 ] First, I am unsure about whether this is the same incident identified as being April 3, 2006 in the police records or a separate one. B.G. has stated that the marijuana was in her bedroom.

There is no suggestion that she did not know that the plants were there; had she taken that position, it certainly would require some explanation. It does appear from the Separation Agreement filed that B.G. and R.G. started living separate and apart April 10, 2006. [ 97 ] Given B.G.. and RG’s involvement with drugs the year before, this incident is particularly troubling. There obviously must be some reason that the police did not proceed that is not clear from their records: bad search, a deal regarding some unidentified information, or some other reason.

However, the failure of the society to respond to this very unacceptable set of circumstances is perplexing. [ 98 ] Of course it may well be that a review of the society’s files regarding the children in BG’s care at the time might reveal new involvement of the society with added expectations of B.G. and R.G..

Indeed at some point as a result of domestic violence at least some of the children were supposedly prohibited from having contact with their father R.G.. [ 99 ] While it is not possible for this court to scrutinize the society’s response to the two incidents, it is somewhat surprising that that the children were left in the care of B.G. given the concerns about the children’s own involvement with drugs and comments from some people in the community about the availability of drugs from this home. [ 100 ] Indeed, on August 3, 2004, during an investigation of a dirt bike incident, a pencil case containing marijuana was found at the feet of N.

Both N and D were given warnings regarding possession of marijuana. The other person who was charged was asked where he got the marijuana and he said that N and D had been giving him “weed” for years as they get it from their parents!

[ 101 ] In this matter, the information about B.G. and drugs is essentially limited to the two incidents described. However, it is clear that B.G. was prepared to expose her children to the risk of marijuana and those who are involved with it commercially without any consideration of her children’s best interests. Relationship with DW [ 102 ] On October 7, 2009, the worker called B.G. about a referral received the day before about her association with DW who was an alcoholic who had hit her while she was holding A.G..

B.G. was aware of the referral through the parents’ worker but was “not happy” that the worker wanted to come over to speak about the issue. [ 103 ] On October 9, 2009, B.G. denied that D.W. was her boyfriend but admitted that he came to the home occasionally. She said that he was never intoxicated or aggressive around the children. In fact, her son C. said that they have seen him a little drunk and tell him to go home. [ 104 ] However, it appears from her conversation in counselling in March 2010 that she and DW were back together since she did not have the grandchildren in her care.

She talked about how controlling he was and that she was also seeing someone else. [ 105 ] On July 4, 2010, the society received a referral that B.G. had been the victim of domestic violence inflicted by D.W. However, in September 2010 B.G. told the Victims Program that she wanted to renew her relationship with D.W. despite the summer assault.

Further, during October and November 2010, the notes from the probation and parole confirm that D.W. and B.G. see each other daily, that the relationship is good. [ 106 ] On December 29, 2010, the society received information that D.W. had threatened to shoot B.G., and all of her children and their spouses. Given the seriousness of the matter, the worker phoned B.G. December 30, 2010 to arrange a home visit but despite the offer of a number of different dates, she would not commit to a date and said she would call back. As she failed to do so, the worker left a number of messages to call.

Finally they met on February 3, 2011. [ 107 ] On February 3, 2011, B.G. told the worker that DW had initially assaulted her at the bus stop the previous summer. She said that he was an old friend of her parents and they began to spend time together after he broke up with his wife. She acknowledged that he had been her boyfriend on and off. She said that she and three of her children had attended at his house over the Christmas season. He had listened to her messages that included reference to a date with someone else and D.W. left messages calling B.G. all sorts of names.

She indicated that her relationship with D.W. was over. She also told the worker that her father talked her into phoning the police and that she felt bad when he was arrested. [ 108 ] In the notes from probation and parole, B.G. told the interviewer on March 30, 2011 that she would like to have contact with D.W. so clearly she had changed her mind about not wanting contact. [ 109 ] Further, a worker indicated that B.G. was at court all day on June 1, 2011 on one of D.W.’s appearance dates and that at break, she saw B.G. and D.W. socializing while outside smoking.

B.G. denied in her affidavit that they were socializing, essentially suggesting that they were standing close together smoking. Nevertheless, her decision to be at the courthouse when not needed to testify and to be outside in the vicinity of D.W. does call into question her recognition of the seriousness of the threats or the supposed termination of their relationship. Compliance with Court Expectations for her own children [ 110 ] I have already set out many of the areas where there was a failure on the part of B.G. to comply with the expectations of the law, court orders or agreements.

In 2007, there were concerns that the children were having unauthorized access with their father. B.G. failed to get children to school or to counselling. She has not followed through with her own counselling. B.G. has consumed alcohol contrary to a court order.

The society has been unable to get B.G. to focus on the tasks important to demonstrating that she is able to meet the safety and cleanliness standards needed in order to be considered as a placement. [ 111 ] During the time that the grandchildren were placed in BG’s care, there were a number of ongoing concerns expressed by the family service worker for B.G. and C. B.G. did not appear interested in following through regarding the expectations for C. The worker felt that B.G. was completely focused on her grandchildren.

She failed to follow through with appointments with the worker. [ 112 ] B.G. had demonstrated attitude about being told how to safely install child car seats given a concern about her failure to do so at the access centre. There were concerns about the conflicting information about routines in the home and B.G. staying up all night while her son played video games. B.G. told the in-home parenting worker that she did not think getting C to school was a problem.

B.G. also could not identify any issues she wished to address with the in-home worker. [ 113 ] Despite instruction June 8, 2009 from the society, B.G. did not immediately contact Lutherwood regarding counselling for C indicating that she was too busy to do so until July 22, 2009. When the society worker called on August 19, 2009, B.G. said that she was too busy to speak to her but would call back. When she failed to do so, the worker called but no one answered. The worker left a message about two possible meeting dates and said to call.

B.G. did not call back. [ 114 ] On August 28, 2009, the worker said that she would be over September 4, 2009 for a visit. On that day, B.G. called and said that she had been called into work and could not meet her. The worker called back and scheduled a meeting for September 24, 2009. When she arrived, a neighbour had one of the grandchildren in a stroller outside.

The worker left after waiting twenty minutes. [ 115 ] Despite the failure of B.G. to meet the parenting goals for C, given the age of C, his progress at school, and the work being done in the home by the worker involved with the grandchildren, the society ceased to be involved with B.G. and C.

Counselling [ 116 ] Despite promises around counselling, B.G. has acknowledged that she has not attended any. In her affidavit, she states that the reason is that she did not go to counselling was because she knew that the society would subpoena the records and she felt inhibited in her discussions with the counsellor. Regardless of what excuse she may provide, essentially B.G. has not resolved those issues requiring counselling, including her use of alcohol.

She noted that she reduced her attendance at AA due to experiencing “multiple family stressors” including the illness of her mother and father and diagnosis of her brother with Crohn’s Disease. [ 117 ] Even if B.G. had been attending AA the amount she has set out, it clearly has not been enough to stop her consumption of alcohol. Continuing Issues at Home [ 118 ] Since January 2010, there have continued to be issues with what has been happening in BG’s home. In March, 2010, C was charged with robbery and possession of weapons dangerous. In April, C was the subject of a threat assessment at school.

In June, there was a referral indicating that her home was a “flophouse”, marijuana was available at the home and son R and the mother were living there. While B.G. denied that the parents were living there, it seems clear that they were staying there a lot and have not maintained any other fixed address. For example on February 11, 2011, a worker arrived at 10:20 am and it was clear that both B.G. and the mother had just woken up and there was a mattress on the floor.

Further R is now acknowledged to be residing with B.G.. [ 119 ] On June 16, 2010, during an unscheduled visit no one would answer the door despite the dogs barking and the voices heard and music turned down. [ 120 ] In July, 2010, the society learned that C had been expelled from the school for an incident involving a knife. [ 121 ] During this period, it has been difficult for a worker to meet with B.G.. There have been occasions where she has failed to show for her appointments and the worker has had to write letters. She has refused dates to meet.

Her phone was disconnected for non- payment and B.G. did not let the society know. Financial Challenges [ 122 ] It is clear that B.G. has often faced economic challenges. During the period reviewed by the court, her gas had been turned off and her telephone disconnected. In 2005, B.G. explains that they were drying the marijuana because they needed the money. At the same time throughout the material, B.G. has not been available for meetings because of work commitments.

Also at least for part of their relationship her then husband was employed. [ 123 ] Now B.G.B.G. explains that she will no longer have the financial challenges as Ontario Works will be paying her bills directly. However, a review of 2011 shows that B.G. has been unable to pay her utilities despite that arrangement and has had to access special funds.

Both the amounts deducted for direct pay gas and hydro were not enough to cover BG’s use and had to be increased within months of the amount being initially set. [ 124 ] Her plan includes having three of her sons residing with her if the grandchildren were to be returned but there is no suggestion that they will be contributing in any way. Therefore her budget will have to stretch to provide for them. Further given their ages and lack of attendance at school, the only person who would qualify for child support from her ex-husband would be C.

Neither parent of the grandchildren is in a position to contribute. [ 125 ] Further B.G.. has not included any amount in her budgeting to complete the repairs required to make the home safe. [ 126 ] Given the number of people in the household and the lack of any counselling on this issue, it is predictable that economic worries will continue to plague the family. Transportation Plan [ 127 ] B.G. has addressed the issue of transportation as she has lost her driver’s licence and will have to attend an expensive program to be reinstated.

In the meantime she has proposed that her son D can provide the transportation necessary for herself and the grandchildren. [ 128 ] Unfortunately it is clear that D does not have a good driving record and was told his probation officer on March 25, 2011 that he was in jeopardy of losing his insurance. In the past, D has been found with a stolen licence and his criminal behaviour would not suggest that he would be a law-abiding driver. Care of the Children [ 129 ] There were times where the society found the children content and even thriving in BG’s care.

However, it is concerning to note that B.G. has said that she provided much of the care for the children even when they were in the care of their parents and certainly the children’s needs had been very neglected when they were first apprehended from their parents. [ 130 ] Further, the condition of the children at apprehension from her care also suggests that B.G. was not focused on their needs. Indeed B.G. knew that the society would be coming to apprehend due to conversation with her counsel and yet the children were still in an unacceptable, extreme state when the society arrived.

[ 131 ] The children were placed in her care on July 10, 2009. The medical reports show that there no one showed up for RG’s six month check-up on July 13, 2009. There was an appointment made on July 20, 2009 but at the nine month check-up September 2009, no one called to cancel and no one showed up. At his one year appointment January 4, 2010, once again B.G. failed to show up. [ 132 ] While B.G. explains that she did not set the appointment and had something more important to do, there is no suggestion that she attempted to reschedule.

Further both children were quite sick and yet she did not care for them properly at her home or by taking them to a doctor. This care was part of her court-ordered expectation. BG’s Plan in General [ 133 ] The plan proposed by B.G. is clearly not in the best interests of the two grandchildren A.G. and B.G.. Nothing has changed to ensure that the children will be safe and well-nourished. Historically B.G.B.G. has been unable to address her children’s best interests. Her own material confirms that she is feeling quite stressed by the concerns about her parents and her brother.

Her own children are also a drain on her financially and emotionally. She acknowledges that she drinks when she is stressed. B.G. has had a year and a half since the apprehension and yet she has not addressed her issues. [ 134 ] B.G. has been unable to comply with the expectations of the society and the court. She has not addressed serious issues about the safety of her home. She is not able to maintain any gains that she does make. [ 135 ] The society has taken the position that B.G. lacks insight into what is not right about her home or her parenting.

Indeed, in a recent court report regarding D, B.G. told the court that “her children were raised in a household with both structure and discipline and that they were expected to abide by a curfew and the rules of the home”. She went further to deny “exposing her son or children to problematic incidence of alcohol or drug use within the family home”.

The evidence before the court does not support that B.G. was implementing any boundaries or rules that would meet community standards in the expectations of her children. [ 136 ] One only needs to examine the incident where B.G. refused access to the basement: either her children run the house or she knew exactly what she was trying to hide.

Surely otherwise there would be no lock on the basement door and if there had been one, B.G. would have cut it off to allow the society worker and the fire inspector access to the basement. [ 137 ] Although B.G.B.G. no longer has puppies, it appears that she continues to have the dogs which at one point were four in number. Given D’s record for animal cruelty, his presence in the home with the dogs poses another concern, another responsibility for B.G. to monitor. Further, the failure to look after the dogs and their excrement has been an ongoing issue.

Once again, this is an added stress for B.G. since no one within the family appears to help. [ 138 ] Another concern about her plan is her lack of identified supports. Her children appear to be in the midst of their own struggles. Her brother who behaved aggressively at the time of BG’s arrest for impaired driving did not make the right decision to stop B.G. from driving him home and further appears to be a regular drinker. DW is an abusive alcoholic by BG’s own admission although she has stated that he was not as bad as her former spouse. Her ex-husband is clearly not a stable support.

The only other mention of family includes people with serious medical challenges. There do not appear to be any friends or family who could assist B.G. and she has a lot to deal with. APPLICATION OF THE LAW [ 139 ] This matter before the court is a motion seeking

summary judgment on the application pursuant to Rule 16 of the Family Law Rules. Sub rule 16(6) sets out the test for the court: Rule 16(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make the order accordingly. [ 140 ] Case law has established that the party seeking the relief must establish a prima facie case that the party resisting the motion must defend. To do so the responding party must put their best foot forward and may not simply deny the other’s evidence. [ 141 ] Further, the issue in dispute must be one necessary to the determination of the matter.

The fact or facts in dispute must have the potential to change the outcome of the trial. [ 142 ] In this matter, counsel for B.G. has submitted that the fact that the society was prepared to leave the children in the care of B.G. prior to the impaired driving is one that requires the investigation of a trial.

He expressed interest in cross-examining the worker whose affidavit supported the original application for status review seeking continued placement with B.G.. [ 143 ] While the facts disclosed in the affidavits are important to the decision to be made by the court, the review of the society’s decision to continue to leave the children with B.G. is not something required in order to determine the best interests of the children.

Certainly one has to wonder in the face of all the evidence why the society would support the children staying in the care of a “chronic alcohol abuser” when she continued to drink and was not attending counselling. Further the evidence discloses very little contact with the family in a situation where one would have expected to find frequent unscheduled checks. [ 144 ] While it appears that some of the information was not available to the worker at the time of the decision to continue the placement, not enough was done to ensure that the protection concerns were addressed.

The society knew about the problems in the home and should have monitored it more closely. [ 145 ] Having said that, it does not mean that the focus of a trial should be to assess why decisions were made by the society or its workers. In this matter, the evidence provided is clearly enough to determine the issue before the court which is the placement of the children. The evidence necessary to the determination of the matter is properly before the court.

[ 146 ] There is no question that the children remain in need of protection. The children have been out of their parents’ care for a very long time and the choices are to place them with B.G., the only other plan before the court, or to make them crown wards. [ 147 ] The evidence is overwhelming that the grandmother B.G. has not made nor is able to make the changes necessary to provide a safe and nurturing home for these children. She has not been prepared to follow through with what is necessary to consider such a placement. She still demonstrates no understanding of what must be changed.

While B.G. clearly loves her grandchildren, the court cannot find that her plan is in their best interests. [ 148 ] Therefore, the court is prepared to make an order of crown wardship in order that there can be some permanency planning for the children. [ 149 ] Given section 59(2) of the Child and Family Services Act, any access order is terminated by a crown wardship order.

Pursuant to subsection 59(2.1), access can only be ordered if it is both beneficial and meaningful to the child and such an order will not impair a child’s ability to be adopted. [ 150 ] While no submissions were made regarding this issue, clearly given the age of these children a plan of adoption is in their best interests. Therefore there is no order of access. ORDER 1. Motion for

summary judgment granted. 2. Crown wardship for A.G. and R.G.. 3. No access. Released: 27 July 2011 Signed: “Justice Paddy A. Hardman”