Family and Children’s Services of Rainy River v. M.S., 2011 ONCJ 59

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 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 . . . the 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) (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. Fort Frances Registry No. FO-06-08 DATE: 2011·II·15 CITATION: Family and Children’s Services of Rainy River v. M.S. , 2011 ONCJ 59 ONTARIO COURT OF JUSTICE BETWEEN: FAMILY AND CHILDREN’S SERVICES OF THE DISTRICT OF RAINY RIVER, Applicant, — AND — MARISSA S. and JOSHUA L., Respondents. Before Justice A.

Thomas McKay Heard on 14 and 21 April 2010; 30 June 2010; 25 August 2010; 27 October 2010; and 9 November 2010

Reasons for Judgment released on 15 February 2011 STATUTES AND REGULATIONS CITED Child and Family Services Act, R.S.O. 1990, c. C-11 [as amended], subclause 37(2)(b)(i), subclause 37(2)(b)(ii), clause 37(2)(g),subsection 37(3), subsection 37(4), subsection 59(2.1) and subsection 59(3). CASES CITED Catholic Children’s Aid Society of Metropolitan Toronto v. M. (Cidalia), [1994] 2 S.C.R. 165, 165 N.R. 161, 71 O.A.C. 81, 113 D.L.R.(4th) 321, 2 R.F.L. (4th) 313, , [1994] S.C.J. No. 37, 1994 Cars​well​Ont 376. David J.

Elliott ............................................................................... counsel for the applicant society Mark W. Mymko ..................................................... counsel for the respondent mother, Marissa S. Virve T. Georgeson ...................................................... counsel for the respondent father Joshua L. Wallace R. Crowe .................................................. counsel for the Office of the Children’s Lawyer, legal representative for the children [1] JUSTICE A.T. McKAY:— This trial involved the disposition portion of a child protection case.

The parents of thechildren are Mr. Joshua L. and Ms. Marissa S. Mr. Joshua L. is a member of the Lac Seul First Nation, and Ms. Marissa S. is a memberof the Mishkeegogamang First Nation. The parties have two children, Angel L.-S. (born on 30 January 2005), who is a member of theMishkeegogamang First Nation, and Nathaniel L.-S. (born on 16 February 2006), who is a member of the Lac Seul First Nation. Bothchildren are the subjects of the application.

On 17 September 2009, a statement of agreed fact was filed and the parties consented to anorder that the children were in need of protection pursuant to subclause 37(2)(b)(i), subclause 37(2)(b)(ii) and clause 37(2)(

g) of theChild and Family Services Act, R.S.O. 1990, c. C-11, as amended. The trial regarding disposition commenced in April of 2010 andcontinued over a number of days, with the evidence and submissions concluded on 9 November 2010. 1: BACKGROUND [2] The society first became involved with the family in May of 2005 when Angel L.-S. was an infant. Nathaniel L.-S. wasnot born until the following year. At that point, substance abuse and parental conflict were at the forefront of the concerns. [3] Society involvement continued through the spring of 2006. As indicated, Nathaniel L.-S. was born on 16 February2006.

Matters came to a head in April of 2006. In late April, 2006, Mr. Joshua L. contacted the society and indicated that they wererunning out of food, and they did not have heat in their residence, as the gas had been cut off for non-payment. Mr. Joshua L. advisedthe society that they should come and get the children. Mr. Joshua L. confirmed that the couple was having financial problems and thattheir relationship was “very rocky” at that point. On 26 April 2006, the parents entered into a temporary care agreement with the societyplacing the children in the care of the society for a period of 3 months.

At that time, Angel L.-S. was approximately 15 months old, andNathaniel L.-S. was approximately 2 months old. [4] The original temporary care agreement and subsequent customary care agreements were extended a number of timeswhile the society attempted to work with the parents regarding their issues. The situation persisted for more than twenty-nine months. On 4 October 2008, Mr. Joshua L. refused to extend the customary care agreement and the children were formally apprehended by thesociety. The children have remained in care from 28 April 2006, to today’s date.

They have been placed together with the same fosterfamily since 28 April 2006. The evidence is that the foster parents are interested in adoption. 2: SOCIETY’S CONCERNS [5] The society expresses a number of concerns which, in its view, makes return of the children to the parentsinappropriate. There have been many attempts at re-unification and the parents have never been able to handle more than a few days. They have been inconsistent with access visits and, at different times, asked for the visits to be reduced.

The society also maintains thatthere is an ongoing domestic violence concern that has existed for years and the society is aware of issues as recently as September of2009. The society also maintains that there is a substance abuse problem with respect to both parents, who both have a long history ofalcohol abuse. The society is also concerned about an alleged lack of follow-through with respect to any programs taken by the parents. The society’s position is that the parents have regressed after each program has been completed and have not made any real substantialimprovement over time.

The society is further concerned with the lifestyle and organizational skills of the parents. Throughout thehistory of the file, the society maintains that the parents are often late for access visits and have missed access visits and meetings. Thesociety states that, when the parents were having overnight access visits during reunification efforts, inadequate supervision was aconcern. During access visits, workers allegedly noticed that parents were often tired, almost falling asleep.

At the point of time whenthere were supervised visits at the parents’ residence, the society maintains that the parents were often just getting out of bed when thevisit was scheduled to start. There have also been issues in terms of money management, having adequate food and planning for thechildren. Finally, there is a significant concern on the part of the society that the children have bonded with the foster parents and thatany change in the residence of the children would have significant negative emotional impact on the children. For those reasons,

including the length of time that the children have been in care, the society seeks a Crown wardship order, with no access to the parents. As indicated, the society indicates that its understanding is that the current foster family would be open to adoption of the children. 3: THE POSITION OF THE PARENTS [ 6 ] There have been various attempts at reunification and there have been discussions regarding placement of the children with relatives of the parents. The parent’s position at the time of trial is that they want the children returned to them. 4:

SUMMARY OF THE EVIDENCE OF THE SOCIETY [ 7 ] There is a great deal of evidence before the court in this case. I have carefully reviewed all of it after the conclusion of the trial. What follows is only a brief comment on the evidence. [ 8 ] Society involvement with the family began in 2005. As indicated, the children went into care in April of 2006. Prior to the expiry of the last customary care agreement in October of 2008, the society was of the view that the parents had not made effective use of the time to resolve the society’s protection issues.

The society was also of the view that additional time in care would not be in the children’s best interests nor would it be useful in giving the parents any further opportunity to show that they could function without assistance from the society. When the parents refused to extend the customary care agreement further, the society launched the child protection application on 4 October 2008. When the children were formally apprehended, the parents’ access visits were reduced from unsupervised weekly weekend visits, to supervised visits of 4 hours each on Saturday and Sunday.

The evidence is that the parents were inconsistent with exercising that access at times. [ 9 ] Ms. Thacher became the society’s family service worker for the file in October of 2007. She detailed the concerns of the society throughout that period of time. The parents had had various involvements with the police throughout the period that the society was involved. In May of 2009, as a result of an altercation between the parents, they were both charged with assault with a weapon. In July of 2009, Ms. Marissa S. was charged with breaching her release conditions because of the use of alcohol.

Seven days later, she was charged with a common assault on Mr. Joshua L. and a breach of her recognizance. On 4 September 2009, she was again charged with breach of recognizance for alcohol use. On 8 September 2009, she was sentenced to 90 days in jail for the 3 breaches of her release terms. On 10 November 2009, she received a conditional sentence of 2 months in custody followed by probation for the common assault charge. At the same time, the assault causing bodily harm charge was withdrawn. On 22 November 2009, Mr.

Joshua L. received a 6-month conditional jail sentence followed by probation for 6 months regarding the assault with a weapon charge related to May of 2009. Obviously, Ms. Marissa S.’s jail sentence impacted access visits. [ 10 ] Dr. Michael Stambrook conducted a parental capacity and psychological assessment on the parents from May of 2009 to June of 2009. The report is dated 11 September 2009. At one point in the report, Dr. Stambrook stated the following: The parents, [Ms. Marissa S.] and [Mr.

Joshua L.], have a history of relational instability, domestic violence, substance abuse, failure to progress in a reunification plan, inconsistencies with follow through and with reliable attendance and, as this assessment unfolded, ongoing domestic violence, the conditions that they did not follow through with, although the non-contact order was vested with [Ms. Marissa S.]. Both parents have problems with affect management, addiction related difficulties, conduct related disturbance, problems with emotional tolerance, and difficulties with lifestyle organization.

Both have had developmental challenges and, experiential deficits in their respective development courses that will colour what they understand about as parenting roles, responsibilities, and commitments and, unfortunately, this is what I had seen [in] the documentation I have reviewed.

While the single observation that I had conducted was positive and permissive, again unfortunately, they have not had the stability of lifestyle, interaction, relationship, and functioning to be considered capable of providing for the consistency of parenting that would be needed in the long term for there to be confidence in their ability to provide developmentally appropriate experiences for the children on a consistent, safe, appropriate, and meaningful level. [ 11 ] The society indicates that the parents have not engaged effectively with the society over these past four and a half years.

The parents have engaged somewhat with some other community resources, including the probation office and some community counselling resources. For instance, one of the parents has attended a substance abuse treatment program on three occasions, the other parent on two occasions. The society was of the view that the parents had shown absolutely no initiative in terms of working with the society. The evidence was that the parents will respond to society initiatives, to some degree, sometimes. However, for the most part, their response ranges from passive non-co-operation to active resistance. Ms.

Thacher described Ms. Marissa S. as passive and someone who simply avoids her. Mr. Joshua L., on the other hand, she portrayed as confrontational at times. She indicated that the foster parents’ experience with the parents was similar to the society’s. [ 12 ] In 2009, the parents made the suggestion that the children be placed with their paternal aunt, Ms. Rebecca L. At a talking circle involving various parties, the parents confirmed their wish. The society pursued that placement. It took some considerable amount of time for the aunt, Ms. Rebecca L., to file a written request for a home study.

At the time, she lived in Thunder Bay. There were further delays obtaining consents from various people, including Mr. Joshua L. When all of the documentation was in place, the First Nations child welfare agency in Thunder Bay met with Ms. Rebecca L. on one occasion, after which she stopped maintaining contact and did not return calls. Therefore, the Thunder Bay agency closed its file. The society heard that Ms. Rebecca L. moved to Red Lake to the jurisdiction of Tikinagin Child and Family Services, so new consents were required for Tikinagin. Ms. Thacher eventually spoke with Ms.

Rebecca L., who said she was working for Tikinagin and was worried about the conflict of interest. She indicated that she would work it out and call Ms. Thacher back. She never did.

[ 13 ] After the failure of that attempt to place the children with the family member, the society essentially made a decision, given the lack of meaningful progress on the important issues on the part of the parents, to move towards Crown wardship as soon as possible. [ 14 ] The foster mother testified. She added to other society evidence regarding how well the children are doing at this point. She also gave evidence regarding the relationship that she and her husband have with the parents. Originally, after the children were placed, the parents had regular telephone communication with her.

At times, the parents would attend at the foster parent’s home for access visits. As time went on under the various customary care agreements, the relationship became less positive. The low point was when the parents contacted the police and complained that the foster father had inappropriately touched Angel L.-S. Both the society and the police investigated and the matter was resolved quickly without either the police or the society taking any further action.

Since that time, they have attempted to remain friendly to the parents, but the relationship is not particularly positive. [ 15 ] The foster mother also gave evidence describing their efforts to engage the children in appropriate cultural activities and initiatives. 5: EVIDENCE OF THE PARENTS [ 16 ] The maternal grandmother of the children gave evidence. She acknowledged that Mr. Joshua L. and Ms. Marissa S. have had problems in the past with drinking and fighting. She indicated that she has not seen any drinking lately, nor is she aware of any fighting at this point. She was unaware of why Ms. Marissa S. and Mr.

Joshua L. entered into a temporary care agreement in the first place. She acknowledged that, although she also lives in Fort Frances, her daughter never spoke to her about the possibility that they were going to place their children in the care of the society. She testified as to her involvement with the children and the importance of cultural factors to her. She indicated that personally she began living a traditional lifestyle on 18 July 2009. She indicated in her evidence in-chief that the children have Ojibway names.

In cross-examination, she indicated that the names were given to the children by an elder in Whitefish Bay the week before she testified. The elder has never met the children. She indicated that her access visits with the children ceased in November of 2009. She was uncertain why. [ 17 ] Ms. Marissa S. also testified. She described the relationship that she has with Mr. Joshua L., which began when she was 17 years old. She indicated that their only real periods of separation were when one or the other was jail. She believed that they moved to Fort Frances in 2004.

Her three brothers still live in Fort Frances with her mother. At the time of trial, her brothers were all in their mid to late teens. She and Mr. Joshua L. have lived in the same subsidised rental apartment since April of 2005. She has never been employed. She indicated that she has been spending 5 hours a day for the last two years working on obtaining her high school graduation equivalency, or GED. She has not actually obtained any credits during that time and does not feel she is ready to write the GED exam. She indicated that recently she and Mr.

Joshua L. have adopted a more traditional aboriginal practice for their life and their religion. [ 18 ] She agreed that she and Mr. Joshua L. had struggled previously with finances, but indicated that they are doing okay now, although at times they have to attend for assistance at the food bank. She described the activities in which they engage during access visits. Responding to concerns in the society documentation, she indicated that she does not believe that one child gets more attention than the other during access visits.

She did agree that Nathaniel L.-S. is more distant than Angel L.-S., probably because he has been with his foster parents since he was an infant. She agreed that neither she nor Mr. Joshua L. have stable family members who could be a placement option for the children. [ 19 ] Ms. Marissa S. also indicated that, after the first time that she went to substance abuse treatment, she simply repeated the same mistakes upon her discharge. She indicated that, after the second time she attended alcohol treatment, she has learned and made progress.

At one point in her evidence, she indicated that she was not in a rush for the children to be returned to her, as it would cause problems with the children because of the bond they have with the foster parents. She indicated that she could see a graduated return of the children phased in over time. [ 20 ] Ms. Marissa S. testified about the importance of the children’s knowing who they are, and engaging in activities related to their aboriginal heritage. In cross-examination, Ms.

Marissa S. agreed that the society had invited them to provide an Ojibway vocabulary list to the foster parents so that the foster parents could work with the children on learning the Ojibway language. She indicated that they did not, and she was not sure why. She could not describe how much time would have been spent during access visits over the previous four years engaging with the children in cultural activities or teaching. When questioned about her alcohol use, Ms. Marissa S. indicated that drinking was a bad idea and that she does not really drink anymore.

She agreed that she had a relapse approximately two months before testifying. She indicated that she did not know why. [ 21 ] Ms. Marissa S. also conceded that Nathaniel L.-S. is somewhat distant emotionally from her and Mr. Joshua L. She denied being aware that Nathaniel L.-S. thought that they favoured his sister. She agreed that she had heard that Nathaniel L.-S. gets upset and has to be forced to attend access visits. She agreed that she and Mr. Joshua L. somewhat mistrust the society. She denied society allegations that she had been telling Angel L.-S. that she would be coming home to her parents.

At one point in cross- examination, she agreed that the society had started out wanting to return the children to them and trying to facilitate that. She acknowledged that perhaps that plan was derailed by the behaviour of her and Mr. Joshua L. In cross-examination, she further agreed that she did not have a co-operative relationship with the society. [ 22 ] Mr. Joshua L. also testified. Mr. Joshua L. maintained in his evidence that he has made progress on his issues. He indicated that he had not been drinking since October of 2009 and that he had not smoked cannabis for approximately three years.

He indicated that he and Ms. Marissa S. have no conflict now. He did indicate that in January of 2010, they did have a “funny” fight. That was regarding access dates with the children. He indicated that he is taking educational upgrading at the moment, trying to complete his GED. He was to write the exam on an earlier date, but did not feel ready so planned to write it in the fall. Mr. Joshua L. discussed various plans for future employment. The options included an office job in Thunder Bay, joining the army or being involved in an underground mining training program in Red Lake.

He was asked in cross-examination how any of these plans were compatible with the return of the children. His response was that it was hard to say, and that his actions would be based upon the children’s being returned.

[23] He also gave evidence in-chief about his return to the more traditional lifestyle in 2009. He indicated that he is nowwaiting for the children to come home before totally transforming himself into a traditional person, because he wants to do that as afamily. In cross-examination, he agreed that a counsellor had recommended follow-up treatment programming, but indicated that he didnot go because he wanted to return to counselling after the children were returned. [24] Mr. Joshua L. throughout his evidence gave an impression of being unrealistic about the issues that they face or theirplans for the future.

He repeatedly minimized the issues that he and Ms. Marissa S. face. He has vague and unrealistic plans for thefuture. Essentially, he has accomplished very little in terms of dealing with his issues over the past four years and creates the impressionthat it his intention to simply wait until the children are returned before actually dealing with many of the issues with which he needs todeal. Ms. Marissa S. similarly minimizes her own issues and the issues they face as a couple. Both parents seem to believe that, if thechildren are returned, their issues will be resolved.

While they have made some efforts to address some issues, in the court’s view thecentral issues have not been dealt with. Given the depth of the issues facing the parents and the length of time that the issues haveexisted, returning the children to the parents would simply be an experiment to see whether or not the parents can now effectivelyparent. In addition, the parents would be unlikely to genuinely co-operate with the society regarding supervision.

The court finds thatthe issues surrounding the ability to parent alone lead to a conclusion that a return of the children to the parents would not be in the bestinterests of the children. [25] There is also the issue of the emotional impact on the children of removing the children from the home of the fosterparents, a home where Angel L.-S. has resided since she was approximately 15 months old, and Nathaniel L.-S. has resided since he wasapproximately 2 months old. [26] In a supplementary assessment report dated 19 November 2009, related to the children’s relationship with their fosterparents, Dr.

Stambrook stated the following: If these observations match with what the Agency’s experience has been over the course of time in theirrelationship with the [B.s], not only with this set of foster children, but longitudinally, and specifically inregards to [Angel L.-S.] and [Nathaniel L.-S.], this speaks to the stability of attachment and what wouldbe, in my view, the inappropriateness of changing this scenario.

Any move for these children from thiscurrent foster placement, given the longevity of the placement, would be clearly deleterious to thechildren, would provoke an attachment rupture that would not be in the children’s best interest, andwould be inappropriate and deleterious to these children’s well being, their security, their psychologicaladjustment and, their development [27] The Supreme Court of Canada decision in Catholic Children’s Aid Society of Metropolitan Toronto v.Cidalia M., [1994] 2S.C.R. 165, 165 N.R. 161, 71 O.A.C. 81, 113 D.L.R. (4th) 321, 2 R.F.L. (4th) 313, , [1994] S.C.J.

No. 37, 1994 Cars​-well​Ont 376, deals with the interplay between the legislation requiring the preservation and integrity of the family unit, if possible, andthe legislation’s requiring decisions to be made in the best interest of the child. [28] The Child and Family Services Act provides guidance in subsection 37(3) regarding the determination of the best interestsof the child. The relevant portions read as follows:

(3) Best interests of child.— Where a person is directed in this Part to make an order or determinationin the best interests of a child, the person shall take into consideration those of the followingcircumstances of the case that he or she considers relevant: 1. The child’s physical, mental and emotional needs, and the appropriate care or treatment to meetthose needs. . . . 3. The child’s cultural background. . . . 5. The importance for the child’s development of a positive relationship with a parent and a secureplace as a member of a family. 6.

The child’s relationships and emotional ties to a parent, sibling, relative, other member of thechild’s extended family or member of the child’s community. 7. The importance of continuity in the child’s care and possible effect on the child of disruption ofthat continuity. . . . 11. The risk that the child may suffer harm through being removed from, kept away from, returnedto or allowed to remain in the care of a parent. . . .

The legislation in subsection 37(4) also specifically directs a person making a determination in the best interests of the child to take intoconsideration: . . . the importance, in recognition of the uniqueness of Indian and native culture, heritage andtraditions, of preserving the child’s cultural identity. [29] The Supreme Court of Canada in Catholic Children’s Aid Society of Metropolitan Toronto v.Cidalia M., supra, at page191 [S.C.R.], stated the following: Thus, the value of maintaining a family unit intact is evaluated in contemplation of what is best for thechild, rather than for the parent.

In order to respect the wording as well as the spirit of the Act, it iscrucial that this child centred focus not be lost . . .

[ 30 ] Further in the decision at page 195 [S.C.R.], the court stated the following: The paramountcy of the best interests of the child is clearly apparent in

section 65, as it is throughout the Act. Section 37(3) further compliments

section 65 in that it recounts the various factors to be considered when attempting to determine the child’s best interest.

These factors include concern for the child’s physical, mental and emotional needs, the importance of continuity in the child’s care, the child’s views as well as any other relevant circumstance. [ 31 ] At page 200 [S.C.R.] of the decision, the Supreme Court quoted with approval the following passage from the Ontario Court of Appeal decision in the same case: . . . a court order may also be necessary to protect the child from emotional harm, which would result in the future, if the emotional tie to the caregivers, whom the child regards as her psychological parents, is severed.

Such a factor is well recognized consideration in determining the best interests of the child which, in our opinion, are not limited by the statute on a status review hearing. [ 32 ] It is an unfortunate fact that these children have been in care for a very long period of time, since they were a very young age. They were in care for a period of almost two and a half years pursuant to a temporary care agreement and subsequent customary care agreements. During that time, the society attempted to work with the parents, without the parents’ achieving a great deal of success.

Additional time then passed when the society, at the suggestion of the parents, pursued a possible placement with a relative of the father. When that did not work, it took a period of time for this trial to be completed. [ 33 ] At this point, the court is left with essentially un-contradicted evidence from Dr. Stambrook regarding the harmful effect of any move for the children from their current foster placement. I find that any change from the current placement would have a detrimental impact on the children and is not in their best interests.

Therefore, even if the parents had made sufficient progress to argue for a return of the children, such a return would not be in the children’s best interests. Of course, I have found that the parents have not made sufficient progress in addressing their issues to make a return feasible. Society wardship is not a possibility because of the length of time in care. Accordingly, the order that is in the best interests of the children is an order for Crown wardship. 6: ACCESS [ 34 ] As indicated, there is an interest on the part of the foster parents to adopt the children.

The society opposes an access order in favour of the parents as not being in the children’s best interest, as it would be an impediment to adoption. The relevant portions of the access regime in the Child and Family Services Act are as follows: 59.

(2.1) Access: Crown ward.— A court shall not make or vary an access order made under

section 58 with respect to a Crown ward unless the court is satisfied that, (

a) the relationship between the person and the child is beneficial and meaningful to the child; and (

b) the ordered access will not impair the child’s future opportunities for adoption.

(3) Termination of access: Crown ward.— The court shall terminate an access order with respect to a Crown ward if, (

a) the order is no longer in the best interests of the child; or (

b) the court is no longer satisfied that the requirements set out in clauses (2.1)(

a) and (

b) are satisfied. [ 35 ] In this situation, it is in the best interests of these children to have stability and permanently become part of a stable family. In my view, the evidence does not establish that it would be in the best interests of the children to have an access order in favour of the parents in place. Accordingly, there will be no order of access.