Kenora-Patricia Child and Family Services v. S.M., 2011 ONCJ 380

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. Kenora Registry No. FO-06-000087-05 DATE: 2011·VII·11 CITATION: Kenora-Patricia Child and Family Services v. S.M. , 2011 ONCJ 380 ONTARIO COURT OF JUSTICE BETWEEN: KENORA-PATRICIA CHILD AND FAMILY SERVICES, Applicant, — AND — S.M., Respondent. Before Justice Peter T. Bishop Heard on 1 June 2011 Reasons for Judgment released on 11 July 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 ),

section 57 , subsection 59 (2.1) and

section 70 . David J. Elliott ............................................................................... counsel for the applicant society Andreas Asmus .......................................................................... counsel for the respondent mother Mark W. Mymko .................................................. counsel for the Office of the Children’s Lawyer, legal representative for the children [ 1 ] JUSTICE P.T.

BISHOP:— This matter comes before me by way of a protection application by Kenora-Patricia Child and Family Services (the “agency”) with respect to the children: • E.M.S. (born on […] May 2003), • J.S. (born on […] January 2005) and • M.M.S. (born on […] May 2006). [ 2 ] The respondent is the mother of the children.

The children’s father is deceased. [ 3 ] At the outset of the trial, the parties agreed that the applicant would put in evidence by affidavit and have affiants present for cross-examination. 1: BACKGROUND [ 4 ] The respondent has been involved with child protection agencies relating to these children for in excess of nine years. [ 5 ] These children were most recently apprehended on 16 June 2010 from the mother. [ 6 ] The children had been previously apprehended on 20 February 2009 wherein the children were returned to her care pursuant to a temporary care agreement. [ 7 ] Ms. S.M. has a criminal record.

On 12 March 2009, Ms. S.M. was admitted to the Forensic Mental Health Services for assessment of fitness to stand trial and criminal responsibility. As a result of criminal proceedings, the mother was identified as suffering from dependent personality disorder associated with depression and anxiety along with borderline traits. [ 8 ] The children were apprehended on 16 June 2010 because of to the following concerns raised by baby-sitters and the children themselves: (

i) the mother’s residence was messy — garbage everywhere; (ii) the mother was arrested for public intoxication and hostile towards the police and was locked- up overnight to sober up; (iii) inappropriate yelling at the children; (iv) rotten food in the house; (

v) mould and things everywhere; (vi) the child M.M.S. not having enough clean underwear; (vii) the child J.S. disclosed that he was locked in his bedroom with a screwdriver in the door. He would yell to get out. The mother would leave the residence from time to and he had no idea where she was; (viii) the child M.M.S. had dark purple circles under her eyes and would not make eye contact, had unbrushed hair and had red spots on her arms and legs. [ 9 ] The day-care supervisor observed the following towards J.S. and M.M.S.: (

a) only attending school in the afternoons; (

b) calling other children names; (

c) aggressive with other children; and (

d) solemn and withdrawn. [ 10 ] The child E.M.S. was locked in her room and at some times let out by one of the other children. She was scared when being locked in the room. Her mother swears at them and the mother gave baby-sitters instructions to lock them in their room if misbehaving. 2: EVIDENCE OF Ms. M.H.

[ 11 ] Ms. M.H. is the foster mother and, along with her husband have been caregivers for all three children since apprehension. Upon apprehension on 16 June 2010, the children had only the clothes on their backs, which were stained and dirty. E.M.S. vomited a few times throughout the evening and J.S. appeared pale and skinny. J.S. had two big bunches of gum in his hair and E.M.S. and M.M.S. had very tangled, unkept hair.

The child E.M.S. continued to be sick the following day and the child J.S. began vomiting the following day as well. [ 12 ] The children disclosed to the foster parents that their mother would put locks on their bedroom doors and would not let them out. E.M.S. stated that they would yell and scream to come out and the mother would not let them out. The child J.S. stated that he was put in a room after school until morning time and he was so hungry. [ 13 ] The children stated that there was hardly any food in the house and they were always hungry.

After eating food from the fridge, they would throw up. [ 14 ] Over time, the behaviour of the children would improve with consistency and age-appropriate discipline. The child J.S. was very aggressive initially at school and after meeting with school authorities; that behaviour has abated. The child E.M.S. would dress inappropriately and would try to sit on the knees of male visitors. The child J.S. has an issue with bedwetting and this is being addressed. [ 15 ] The children were always concerned about food and would grab it as though they would never get any more.

When going for visits with their mother, they would take food for snacks to insure an adequate supply of nourishment. [ 16 ] The children are doing well in school and are attending the French school, Conseil scolaire de district catholiques des Aurores boréales , and are becoming bilingual. 3: EVIDENCE OF Ms. CHANTELL PIHULAK [ 17 ] Ms. Chantelle Pihulak is the children services worker and arranged for access with the mother. Ms.

Pihulak also had an opportunity to visit the children in the care of the foster parents and was pleased with the children’s progress. [ 18 ] The children had disclosed inappropriate discipline and parenting on behalf of the mother including locking in the room and not providing adequate nourishment for them. [ 19 ] During the visits with the mother, she observed the mother to have a flat affect and that she had had a hard time engaging with the children and did not address safety issues. At times, she would disengage and lose focus on the purpose of the visits. 4: EVIDENCE OF Ms. ROSEMARY VALDOCK [ 20 ] Ms.

Rosemary Valdock is a case-aide employed by Kenora-Patricia Child and Family Services. One of her roles is to supervise visits in the community and offer appropriate parenting techniques for the mother. She has supervised visits by the mother since 18 November 2010. [ 21 ] Her observations include that, in the past, the mother has been transient and unable to secure a home and dependent to a large degree on local women’s shelters to provide food for visits rather than budget the money that she received from Ontario Works. The mother looses focus during the visits and directs her mind to other things.

She dwells on her own problems and does not engage with the children. [ 22 ] The mother has taken two parenting courses but does not know how to apply what she has learned. At times, the mother becomes overwhelmed and confused when given too many daily tasks. On one visit, Ms. S.M. was sluggish, slow moving and yawning and laid on the carpet and watched the children play. She commented that she had decided to go off her medication. On a visit in January, the mother arrived appearing tired and with no ambition to engage with the children.

She was also concerned about J.S.’s pending surgery and that she would not see him for a week. 5: EVIDENCE OF Ms. SHERRY GABRIS [ 23 ] Ms. Sherry Gabris is a social worker for Kenora-Patricia Child and Family Services.

She outlined in her affidavit as well in viva voce evidence the history of involvement of the Children’s Aid Society in the District of Thunder Bay with these children and continued on with the involvement of Kenora-Patricia Child and Family Services. [ 24 ] She has continuously and tirelessly worked with the mother to provide resources for her to secure housing and to make every effort to insure that the mother has resources available to properly parent these children. [ 25 ] She has taken steps to insure that the mother has access to Community Counselling and Addiction Services, housing and other amenities to assist in the care of these children. [ 26 ] She noted the improvement in the children’s hygiene and school attendance from the date of apprehension through to the end of December 2010. [ 27 ] In January of 2011, the mother moved to Hoshizaki House in Dryden and set up appointments with various counsellors including Shawna Levesque of Hoshizaki House, Tina Galeotafiore of the Dryden Regional Mental Health Services and Brenda Chartrand of the Aboriginal Healthy Babies to discuss service planning.

[ 28 ] In February of 2011, Ms. S.M. advised that she had been accepted to receive Ontario Disability Pension and financial support based on a diagnosis of her foetal alcohol spectrum disorder. [ 29 ] In April of 2011, the mother secured a residence in Dryden and also started attending AA (Alcoholics Anonymous)) meetings. She also attended the Lakehead Adult Education Credit Program with a goal of obtaining her grade XII education. [ 30 ] It was Ms.

Gabris’s conclusion that, despite all of the efforts made by the mother, she is, because of her limitation, unable to provide consistent safe care for these three children. 6: EVIDENCE OF Ms. S.M. [ 31 ] Ms. S.M. is twenty-eight years of age and the mother of the children. She has one other child who is not subject to this application but resides with the grandparents in another community. [ 32 ] She described her apartment as being neat and tidy with two bedrooms and that the rent is deducted automatically from her Ontario Works cheque.

She described each of her children in positive terms. [ 33 ] Presently, she goes to school every day and has obtained a grade IX education. She attends Alcoholic Anonymous meetings, which commenced in January of 2011. [ 34 ] She admits that she is an alcoholic but she has not had anything to drink since 4 January 2011. [ 35 ] She plans to attend a residential treatment program for Alcoholics Anonymous in Thompson, Manitoba and hopes to get the support there to address her alcoholism. [ 36 ] She states that Rosemary Valdock is not accurate with respect to her observations on the visits.

She stopped taking her medication in September of 2010 and became tired. She accused Ms. Valdock of yelling at the children. She suffers from migraines and sometimes had one for one and one-half weeks. She enjoys her visits with the children. [ 37 ] She commented that Ms. Pihulak was wrong with the description of her home, it was messy and there is too much stuff but she does not know what to do with it. She denies that there is garbage lying around and admits to having trouble organizing things. She had difficulty describing the lock mechanism on the room for the children.

She admitted that she did not make the children brush their teeth. [ 38 ] She stated that the child J.S. was not aggressive and that no one had told her about that. [ 39 ] She had difficulty answering about the Sacred Heart School and how the children were progressing there. [ 40 ] She admitted that she used marijuana since she was seventeen years of age but stopped in January of 2011. [ 41 ] Throughout her relationship with the children and at the time of apprehension, she was prescribed Zoloff.

She was on anti-depressants for approximately eleven years. [ 42 ] She has been addressing grief counselling as her former spouse is deceased. She has experienced anxiety and depression and is reaching out through Alcoholics Anonymous and counselling.

She admitted that she is able to use the services when the children are not in her care. [ 43 ] When asked questions about her mental health, she on more than one occasion, answered “that I am not a psychologist regarding care for the children”. [ 44 ] She contradicted Rosemary Valdock’s evidence and attempted to turn that evidence back on her, which demonstrated a notable lack of objectivity on her part. [ 45 ] During cross-examination, she missed the import of questions dealing with not disclosing to Ms. Gabris that she was an alcoholic.

Again, she answered that she was not a psychologist. [ 46 ] It was her evidence that the children did not have head lice while in her care and they got that in foster care. She would like to feel that she could look after the children. 7: EVIDENCE OF Mr. JONATHON BAUM [ 47 ] Mr. Jonathon Baum is fifty years of age and employed at the Adult Learning Centre. [ 48 ] He stated that the mother had been coming to the program since 2007 and was a very regular attendee. [ 49 ] He further stated that she wants to obtain here grade XII equivalency and she would attend four to five times a week but math is a real struggle.

She has never attended class intoxicated and he suggested to her that she get an assessment. The result came back with a diagnosis of foetal alcohol spectrum disorder. Mr. Baum also assisted the mother in buying some furniture for her former residence on the main floor, which was covered in garbage bags.

8: DECISION [ 50 ] I am finding that on all the evidence, the children are in need of protection pursuant to subclauses 37(2)( b )(

i) and (ii) and also clause 37(2) (

g) of the Child and Family Services Act , R.S.O. 1990, c. C-11, as amended (“the Act”). [ 51 ] I have reviewed

section 70 of the Act and note that the child • E.M.S., who is now eight years of age, has been in care for a total time of 1,255 days, and • J.S., who is six years of age, has been in care for a total of 568 days, as has M.S. With respect to E.M.S., there is one option, either make her a Crown ward or return her under supervision to the mother. The mother through counsel does not want the children separated and wants the same disposition for all children, although technically J.S. and M.S. are not at the maximum allowed under

section 70 of the Act . [ 52 ] I have also reviewed

section 57 of the Act and conclude that the society has made all reasonable efforts to assist this mother in caring for the children. Ms. Gabris in particular should be commended for continually stepping forward in providing services to counselling, home care and other services to assist the mother. [ 53 ] I have reviewed subsection 59(2.1) and note that there is a presumption against access if Crown wardship is ordered.

In that regard, access must be beneficial and meaningful to the child and such access would not impair the child’s future opportunities for adoption. [ 54 ] There is no doubt that the mother loves these children and has expressed that. Her mere statement of expression at trial however does not jive with all of the evidence that is before the court.

The court must address permanency planning. [ 55 ] Having heard all of the evidence and reviewing all of the affidavits, the exhibits, the medical records filed in this matter along with the viva voce evidence, I am finding that it is in the best interests of these children and the least restrictive alternative to grant Kenora-Patricia Child and Family Services Crown wardship for the following reasons:

(1) The mother has a history of domestic violence and a record for criminal assault.

(2) She has a history of substance abuse with alcohol, hallucinogens and opiates.

(3) She stopped taking her prescribed medication in January of 2011.

(4) She has demonstrated an inability to adequately supervise the children and has left the children with numerous baby-sitters.

(5) I find as a fact that she locked the children in their rooms inappropriately, which caused emotional trauma and stress for the children and also presented a physical risk to the children in the event of an emergency. Children were required to assist each other.

(6) With respect to hygiene, when the children came into care, they were poorly dressed and in need of bathing and appropriate clothing. There was rotten food in the refrigerator, clutter around the home and two of the children were physically ill.

(7) The mother is an admitted alcoholic and has been so for many years. [ 56 ] The mother does not have the capacity to properly parent these children. For the first time at trial, she admitted that she has been an alcoholic for ten to twelve years but did not address that issue with Ms. Gabris, her champion and advocate with Kenora- Patricia Child and Family Services. [ 57 ] Ms. Gabris has arranged for counselling and two parent aides over the course of the mother’s long involvement with the agency. [ 58 ] The mother engages in all counselling and attempts to better herself when the children are not in her care.

She has taken two parenting courses and had two parent aides and engaged in temporary care agreements, has had mental health support, financial support, medical support, church and social support and the support of the agency. [ 59 ] Notwithstanding all of these efforts, she has not been able properly to care for and protect these children. [ 60 ] The visits that the mother has had with the children are indicative of her inability to parent.

She has been tired, lethargic and more focused on her own concerns and needs than those of the children. [ 61 ] The children have been in and out of care or involved with at least two agencies since birth. The children are taking second place to the mother’s needs. [ 62 ] With respect to the child E.M.S., she has taken on some of the parenting role of the mother. [ 63 ] There are serious behavioural disorders for the children with the child J.S. being aggressive and incontinent from time to time. [ 64 ] The children have now been placed in a loving, caring home with a view to adoption.

They have demonstrated over the course of that placement much improvement with their physical, emotional and academic wellbeing. [ 65 ] The foster parents’ geographical location is close to the mother as well as the oldest sibling who resides in a community some one-hundred kilometres distant. [ 66 ] There has been no appreciable improvement in the mother’s parenting ability and every attempt to accommodate the mother with her mental disabilities and deficits has been accommodated.

[ 67 ] In all of these circumstances, the least restrictive alternative and in the children’s best interests is Crown wardship.