Children’s Aid Society of Nipissing and Parry Sound v. M.D.M.M.B., 2011 ONCJ 340

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. North Bay Registry No. 147-08 DATE: 2011·VI·29 CITATION: Children’s Aid Society of Nipissing and Parry Sound v. M.D.M.M.B. , 2011 ONCJ 340 ONTARIO COURT OF JUSTICE BETWEEN: CHILDREN’S AID SOCIETY FOR THE DISTRICTS OF NIPISSING AND PARRY SOUND, Applicant, — AND — M.D.M.M.B. and J.A., Respondents.

Before Justice Louisette Duchesneau-McLachlan Reasons for Judgment released on 29 June 2011

CHILD PROTECTION — Form of order — Crown wardship — Grounds — Best interests of child — Physical, mental and emotional needs — Need for timely response to child’s needs — Child (now 4 years old) had global developmental delays, acting much like 1- year-old or 2-year-old child, and required considerable one-on-one interaction with adult with advanced cognitive skills — Unfortunately, mother’s life was troubled by drug addiction and depression that made her unreliable caregiver and she ultimately consented to Crown wardship order without access — Father had originally sought boy’s placement with him but withdrew his plan and instead backed boy’s placement with his sister (boy’s paternal aunt) — Authors of court-ordered assessment were open to this idea, provided that aunt met certain terms and conditions — But it appeared that aunt had her hands full with children of her own and some unsavoury friends and she did not match father’s enthusiasm for assuming responsibility for high-needs child — She had only seen boy twice in his lifetime — As result, she took no steps to implement terms and conditions suggested by assessors — Father, however, invited court to ignore past year of aunt’s inactivity and asked court to place boy into her interim care and custody without regard to assessors’ terms and conditions — Court refused — Assessors’ terms and conditions were perfectly sound and child had already waited too long for his parents and family to follow through with them — More than year had passed in which parents and aunt could have acted but did not — At this late date, neither parent was in position to care for boy and aunt could not adequately take care of his needs — Boy’s best interests required prompt order for Crown wardship without access.

STATUTES AND REGULATIONS CITED Child and Family Services Act , R.S.O. 1990, c. C-11 [as amended],

section 54 . Donald C. Wallace ......................................................................... counsel for the applicant society Peter W. Rutland .................................................. counsel for the respondent mother, M.D.M.M.B. William A. Sangster ............................................................ counsel for the respondent father, J.A. Catherine E. Mathias McDonald ............................ counsel for the Office of the Children’s Lawyer, legal representative for the child [ 1 ] JUSTICE L.

DUCHESNEAU-McLACHLAN:— The child, H.D.B., was born on […] June 2007. [ 2 ] Since his birth, H.D.B. has spent most of his life outside his parents’ care. [ 3 ] H.D.B. was in care subject to temporary care agreements from 18 through to 21 January 2008; from 4 through to 25 February 2008; and from 1 through to 11 May 2008. [ 4 ] The protection application was first in court on 14 May 2008 and, pending a kin placement study, H.D.B. remained in society care from apprehension on 29 April 2008. [ 5 ] By 15 September 2008, a finding in need of protection was made and, on 24 December 2008, a placement order was made for the child to reside with the mother under society supervision with access to the father. [ 6 ] Mr.

Cd.B. and the mother began dating when H.D.B. was about 18 months. It would seem that they thus started dating in December of 2008. They dated until about May of 2009, although they were “on-again off-again” throughout that summer. [ 7 ] Mrs. Ce.B., Mr. Cd.B.’s mother, testified that they babysat H.D.B. occasionally and then had both Ms.

M.D.M.M.B. and H.D.B. living with them until September of 2009 when the mother got her own apartment. [ 8 ] By June of 2009, the society had withdrawn from the supervision order. [ 9 ] The B.s helped the mother with necessities of life for H.D.B. and looked in on her to make sure both mother and child were doing fine. [ 10 ] Occasionally, the day care telephoned Mrs. Ce.B. to come to pick up the child, as the mother had not shown up. Mrs. Ce.B. had been listed as an emergency contact for H.D.B. [ 11 ] Early in 2010, the society had to intervene once again. Mrs.

Ce.B. had telephoned it in December of 2009 as she was very concerned about the mother’s addictions and behaviour. [ 12 ] In January of 2010, although the mother left the child with the B.s, she admitted to them that she was taking drugs and was depressed. Then she threatened to take H.D.B. with her even though she had left Detox early. [ 13 ] A temporary order provided for society supervision, the child to reside with Mr. M.B. and Mrs. Ce.B., parents of mother’s boyfriend.

It was understood that the mother was undergoing addiction counselling. [ 14 ] In February of 2010, both parents still needed to find a lawyer, although the father had obtained legal aid whereas the mother still had to apply. [ 15 ] At that time, an order was made for representation by the Office of the Children’s Lawyer. [ 16 ] By 13 April 2010, a finding in need of protection was made and an assessment ordered pursuant to

section 54 of the Child

and Family Services Act , R.S.O. 1990, c. C-11, as amended. [ 17 ] On 28 July 2010, the relief claimed by the society was changed to reflect a request for Crown wardship without access and dates fixed for trial together with a trial management conference. [ 18 ] In the meantime, settlement conferences were scheduled as well as a motion for

summary judgment. [ 19 ] This motion was re-scheduled to April of 2011 to give the mother a chance, yet again, to go through residential treatment and aftercare. [ 20 ] In May of 2011, The Honourable Justice Gregory P. Rodgers dismissed the motion for

summary judgment but suggested the issues for trial be limited to possible placement with the mother or a paternal aunt, Ms. J.A. [ 21 ] As a result of his recommendations, the father withdrew any suggestion that the child be placed with him and backed placement with his sister, Ms.

J.A. [ 22 ] After the society’s evidence was tendered, the mother decided to withdraw as a placement for H.D.B. and she consented to an order for Crown wardship without access. [ 23 ] Specifically, the mother contested placement of the child with the paternal aunt. [ 24 ] The child’s lawyer also recommends that H.D.B. be made a Crown ward without access for permanent placement in an adoptive family. She also contests placement of the child with the paternal aunt. [ 25 ] It should be noted that, in June of 2010, the

section 54 assessors recommended that the aunt be looked at for placement, provided that she meet certain terms and conditions, and that she have graduated access to H.D.B. [ 26 ] The society did not follow through with the

section 54 recommendations for access regarding H.D.B. and Aunt J.A. [ 27 ] It would appear that the aunt’s society worker understood that the aunt was no longer interested in providing a home for H.D.B. [ 28 ] Indeed, no one at the society is aware of any attempts by the aunt to have access with H.D.B. commence. [ 29 ] Mr.

Sangster submits that the assessors’ suggestions for the aunt would only become important if and when access began. [ 30 ] The evidence clearly showed that this little boy has global developmental delays and requires a great deal of one-on-one interaction with an adult. [ 31 ] H.D.B., although four years of age, is much like a one-year-old in certain ways and much like a two-year-old in other ways. [ 32 ] The evidence also showed that H.D.B. suffers from a reactive attachment disorder and must find a permanent lifetime placement. [ 33 ] It seems that H.D.B. would do best as an only child or as the youngest child with much older siblings and that his placement must be with an adult or adults with advanced cognitive skills. [ 34 ] The problem with father’s placement plan with Aunt J.A. is that, although she is a very loving and caring parent, she has her own difficulties and she has two little girls who also have their own difficulties. [ 35 ] Although I can understand the father’s blaming the society for not providing H.D.B. for visits with his sister, I must question his sister’s commitment when she was certainly not pro-active in organizing access to H.D.B. [ 36 ] For example, she attended the

section 54 disclosure meeting and should have been fully aware of the recommendations in regards to herself and to her immediate and graduated access to H.D.B. [ 37 ] She did not attend at the society offices to request the recommended access. She did not even try to follow through with the assessors’ recommendations for herself. She did not seek legal assistance to request party status and move for an order permitting the access recommended by the assessors.

She did not actively seek appropriate accommodations so that H.D.B.’s visits with her could realistically happen. [ 38 ] These steps would have confirmed her commitment to H.D.B. and positioned her as a proper long-term placement for him. [ 39 ] During her evidence, one gathered that she was offering herself as a placement for H.D.B., despite not really knowing him, to support her brother’s need to keep H.D.B. in the family so that if he, at some time or other, were able to get residential treatment and aftercare, anger management and any other necessary counselling, he would be able to begin a relationship with his son.

Ms. J.A. is a very good person, albeit very simple in her knowledge of human interrelationships. [ 40 ] She has seen H.D.B. twice in his short life. She has entered in a relationship with a drug dealer who assaulted her in front of her own children. [ 41 ] Despite her promises to the contrary, I do not believe that she would be able to prevent contact between H.D.B. and his father.

[ 42 ] The assessors found that Aunt J.A. had “significant intellectual and global functioning deficits” that certainly explained her reliance on the Ontario Disability Support Program. [ 43 ] It is clear from the evidence that Aunt J.A. has her hands full with the care of herself and her children. She testified that she just didn’t have the time to follow through with the recommendations. [ 44 ] The assessors wanted her to self-refer to the Community Counselling Centre to get a community support advocate.

This recommendation signifies that she needs help, even though she may be able to do some things by herself. [ 45 ] The assessors wanted her to self-refer to the Association for Community Living to obtain support for herself and the Family Home Program. This means again that she does need help. [ 46 ] The assessors recommended that she self-refer to Healthy Babies, Healthy Children “to have a family home visitor to help with parenting strategies and child development”. This recommendation shows that she needs help. Indeed, she has trouble with her kids.

They do not want her to play with them; they get what they want by whining. [ 47 ] The assessors wanted her to enrol in a parenting class through the Health Unit or the Hands Family Network. Again she needs help parenting although she is a loving mother. [ 48 ] The assessors also wanted her to self-refer to Hands for family counselling as needed and the TIPS program.

They obviously felt that she would need lots of help whether or not H.D.B. visited with her or was placed with her. [ 49 ] Most importantly, in June of 2010, the assessors felt that all this should happen by September of 2010 and that then, placement could be with Aunt J.A. under a twelve-month supervision order “with regular visits” by the society “ to monitor H.D.B.’s adjustment to his new surroundings”. [ 50 ] None of this happened. [ 51 ] Now it is proposed by the father really that we go back to June of 2010 and forget what’s happened or not happened in the interim and place H.D.B. with his aunt, without any consideration to the recommendations of the assessors. [ 52 ] I strongly disagree.

This child has waited too long for his parents and family to follow through with the excellent recommendations of the assessors. [ 53 ] In the best interests of this child, I agree that I should make an order for Crown wardship without access and so do. Neither parent is in a position to care for H.D.B. and I find that Aunt J.A. cannot adequately take care of his needs.