Children’s Aid Society of Brant v. C.F., 2011 ONCJ 287

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. Brantford Registry No. C446/10T DATE: 2011·III·29 CITATION: Children’s Aid Society of Brant v. C.F. , 2011 ONCJ 287 ONTARIO COURT OF JUSTICE BETWEEN: CHILDREN’S AID SOCIETY OF BRANT, Applicant, — AND — C.F. and R.I., Respondents. Before Justice Lawrence P. Thibideau Heard on 11 March 2011 Reasons for Judgment released on 29 March 2011

Richard M. Cook ............................................................................ counsel for the applicant society Edward J. Kiernan ..................................................................... counsel for the respondent parents Birkin J. Culp ....................................................... counsel for the Office of the Children’s Lawyer, legal representative for the children [ 1 ] JUSTICE L.P. THIBIDEAU:— The two children the subject of this matter are L. (born on […] June 2007) and A. (born on […] March 2009).

The original application dated 29 November 2010 resulted in a temporary “without prejudice” order on 9 December 2010 whereby the children remained in the care and custody of their parents subject to the supervision of the children’s aid society on specific terms as set out in the order.

At that time, the issues were defined as physical harm and emotional harm for the children based upon parental conduct and the specific issues were as follows: 1. parental resistance to service providers; 2. lack of parental capacity; 3. the mother’s mental health issues; and 4. unclean home. [ 2 ] The real focus of the children’s aid society was the child L. and his significant speech delays, which required intervention by Brant County Pre-School Speech and Language System under the auspices of Lansdowne Children’s Centre.

As a result, there is a focus on the alleged parental resistance to remedial programs for L. with respect to his significant speech delay. [ 3 ] The initial affidavit of the society worker for this family clearly indicated her views of parental attitude towards caregiver involvement, particularly with respect to the mother. She described the mother as follows: • Extremely resistant to completing developmental services required for L.. • Inordinately resistant to accept any responsibility for ensuring . . . services are followed. • Resistant to engaging in community services.

She also perceived the mother as unjustly describing L. as an uncontrollable and violent child with whom the mother was having great difficulty. The assessment of the worker was that L. was never observed in the community to engage in any of the behaviour claimed by the mother. [ 4 ] These rather definitive descriptions of the mother and her attitude are not borne out by the evidence before the court, at least not to the extent described by the worker in her material.

Excluding evidence from the mother, it is clear from the worker’s own evidence that the mother and father were engaged with Lansdowne in order to provide services for the child. The report from Lansdowne clearly indicates that L. was initially assessed on 3 June 2009 and had been followed since that time with report updates of 3 June 2009, 13 January 2010 and 31 August 2010. [ 5 ] On 25 August 2010, the family attended at Lansdowne for another assessment.

During the course of the assessment, there is incontrovertible evidence that the child was aggressive throughout the session, attempted to hit the examiner and gathered saliva for spit. As a result of all of this, the Lansdowne worker present physically took hold of the child to restrain his behaviour. The mother saw this as an assault and the worker saw it as redirection. [ 6 ] As a result of the mother’s complaints to Lansdowne and the local police authority, an investigation was done by the children’s aid society and the police.

The end result was that the contact between worker and child was confirmed but was not validated as an assault with intent to harm. It was seen as a physical redirection. As a result, the mother made it clear to the society worker that, in order for the program to continue in order to assist her child generally, she proposed the following: 1. Continued Lansdowne involvement but with a new worker. 2. Engaging Woodview Children’s Centre for services for this child’s behaviour, which the mother did do. 3.

Obtaining from the family doctor a paediatric referral with the hope of a proper diagnosis and resulting treatment. Apparently, the mother did this as well. 4. Because of the society worker’s advocacy for maintaining involvement with the current Lansdowne worker, the mother stated to the society worker that there would be no further involvement with the society or Lansdowne until the police investigation was complete.

In fact, eventually, the police investigation was completed and, in fact, there was further involvement with Lansdowne. [ 7 ] It is noteworthy that, as of 1 September 2010, the worker admittedly told the father in a telephone conversation there were no specific protection concerns regarding the family but the society wanted current supports to remain in place, chiefly with respect to the child L.. [ 8 ] These facts and circumstances point to two things.

The society worker’s affidavit statement that there was no evidence at all in the community of the kind of conduct of the child L. alleged by the mother is simply not correct. He was so out of control at the Lansdowne assessment in August of 2010 that he had to be physically restrained by the worker. A description of his conduct indicates that it was significant and ongoing during the entire time of the assessment until the “redirection” took place.

There is also ample evidence that the mother, particularly, had engaged the child for services for his speech delay for some time and that she had a plan of care that was at least reasonable with respect to continued services for speech delay, new services for child conduct issues, even though the mother’s particular plan was not viewed favourably by the society worker. Therefore, the rather categorical statements about the mother’s attitude that she was “extremely resistant” . . . “inordinately resistant” were simply not accurate.

It is fair to say that that the mother demonstrated a rather argumentative and defensive attitude with respect to the offers of assistance that were being made chiefly

by the society workers and to a lesser extent the Lansdowne personnel. There had already been one change of Lansdowne personnel as a result of the mother’s request before this incident. [ 9 ] Again following the incident, there was disagreement between the mother and the worker with respect to services to be offered. The society offered a Healthy Babies Healthy Children program, while the mother thought that medical professionals were the way to go. At this time, the mother failed to understand that medical professionals would not assist with speech therapy.

There would have to be a referral to some organization like Lansdowne putting the mother back where she started. On the other hand, the worker viewed the mother’s position as negativity, which in itself appeared to require the mother to gain further parenting skills. In short, the society was focusing on the speech delay issue and the mother was focusing on the behavioural issue. In essence, the mother and worker were parting ways on what plan should move forward.

In this context, it is not appropriate for the worker to conclude that the mother was “resistant to engaging in community services.” In fact, the mother was advocating community services that were not acceptable to the worker and was resistant to some community services that were being put forward by the worker, specifically re-engagement with the same worker at Lansdowne who had touched the child and the Healthy Babies program. [ 10 ] Throughout the fall period of 2010 and the early part of 2011 to the date of apprehension on 21 January 2011, the to and fro between the assigned worker and the mother continued.

This also resulted in a to and fro with an engagement of services for L. in particular over that period of time. [ 11 ] Some of the problems originate with the worker. For instance, the mother engaged a specialist for L. with respect to his situation, including his behavioural issues. That was well underway. That was interrupted by the worker conveying to the doctor somewhat incomplete information about how well L. was doing in the community and that he had no behavioural issues. This caused the doctor to re-think his diagnosis and the plan for L..

It is true that this child has had no behavioural issues at day care. However, on the whole of the evidence, it is clear that the child does have behavioural issues as exhibited in a very demonstrative way at Lansdowne Children’s Center on the infamous visit complained of by the mother, as well as in the mother’s own care. [ 12 ] The precipitating incident of 21 January 2011 at McMaster Children’s Hospital in Hamilton was viewed over-negatively by the worker at the time. The relevant issue was observed seizures related to the constipation issue, which was chronic for this child.

Attendance at the emergency ward of the hospital did not result in an admission to hospital, rather a request that the child remain waiting in hospital for several hours in order to see a specialist at regular hours in the morning. Clearly, this in itself demonstrated that the child was not in immediate need of medical attention or the procedures at the McMaster Children’s Hospital related to this child and his condition would have been different. In fact, the mother merely exercised the practical option of returning home for the intervening hours.

Preferably, she should have returned the child to McMaster where specialists are available but she did not. However, in the context of all the evidence, it is clear she intended to bring the child to the emergency department of Brantford General Hospital when regular service began at about 8:00 a.m. The worker felt it necessary that the child go immediately and the child was taken immediately, under threat of apprehension, at about 4:00 a.m. By hindsight, it is clear that the mother’s actions and intentions were not harmful to the child.

The child was not admitted or examined once presented at the hospital at 4:00 a.m. The child was eventually seen but in the morning during regular hours. [ 13 ] This does not mean that the worker’s concerns were not founded in reality; they were. This does not mean that the mother’s decisions were the best; they were not.

However, it does mean that, at the time based upon information available and the conduct of medical personnel, the mother’s decision was at least reasonable and her intent to obtain medical attention the next day was reasonable. [ 14 ] However, it can be accurately said that because of the mother’s diagnosed disability, the efforts of the society and other service providers in the community have been interrupted and hampered from time to time by the mother’s perception, not very accurate, that service providers are working against the interest of her family and L. in particular.

Her disability prevents her from understanding his needs with respect to his up-and-down bowel disease and his significant speech delays. To a lesser extent, she also misunderstands his behavioural issues, believing she has no need of professional help in educating her how to cope with them. [ 15 ] This is not to say that the mother’s concerns are not reasonable, even if inaccurate. For example, her concern over the restraint policy at Lansdowne as she observed it on the particular day in question related to L. is a valid concern. There is nothing wrong with her advocating a change in the policy.

There is nothing wrong with her continuing to voice that concern even though she consented to having both children involved with Lansdowne after the fact. The difficulty is that other persons dealing with the mother tend to throw out the wheat with the chaff. The mother complains so much and so frequently about so many things related to service provision for her family that it is difficult for service providers see her point of view when it is legitimate. This affects child care. [ 16 ] The society complained about other issues. There is the mother’s mental health.

There is evidence before the court that, as a child, the mother was engaged with professionals with respect to her mental health. The mother, in her material, has provided a more detailed look at that issue than the material provided by the society. Suffice to say, there is nothing in that early history that affects child care. However, the mother’s defiant and argumentative attitude is not transitory. It is embedded in her personality as diagnosed by her psychiatrist many years ago and confirmed as late as the assessment of 2006 by Dr. Sharma.

Her other issues, major depressive disorder and impulse control disorder, are less problematic for child care. In fact, as of February 2009 the assessment of the society worker with respect to the mother’s mental health was that child care was not affected by mental health. [ 17 ] There was an allegation of an unclean and unhygienic home. There is strong evidence that, from time to time, the home has been cluttered and disordered along with further evidence that there have been improvements from time to time. In August of 2008, the police observed a messy home condition and notified the society.

In October of 2009, the worker observed a messy home but also noted that the very next day it was cleaned up satisfactorily. This cycling up and down may relate to the tendency to depression by the mother or it may relate to being overwhelmed by the care of two children given her personality disorders. However, the condition of the home is not an issue that requires the two children to be removed from that home. [ 18 ] Finally, there is an allegation of lack of parenting capacity separate from resistance to service providers. There is little or no evidence of lack of parenting capacity.

Over the years, this family has maintained a relatively stable home in a condition described

above. The mother in particular has been a facilitator of services for the children as they were required. There has been ongoing contact with medical personnel, Lansdowne personnel, day-care providers and others despite what is described as the mother’s resistance to service providers. [ 19 ] The real issue for purposes of this motion is whether or not the mother’s propensity for argument, confrontation, discourtesy and denial of access to information is sufficient to justify apprehension and supervised access as requested by the society. [ 20 ] With respect to the child L., it is for the present.

This is so because L. presents with two concerns, one more immediate than the other. For the better part of a year, service provision has been interrupted both with respect to speech therapy and with respect to his medical condition related to the health of his bowels. Without professional assistance, the mother is likely to continue to impede continued service required for this child immediately in relation to the medical issue and on an ongoing basis, but not emergency basis, with respect to the speech issue.

It is clear that, at one time or another, the mother manages to alienate and disconnect from, even if for short periods of time, any and all service providers involved with L.. This is particularly so with respect to medical personnel. The result is disjointed, non-connected and ill-informed medical attention for this child, which, given his condition, cannot be tolerated. [ 21 ] With respect to A., the situation is not the same. The mother has a program in place for him, both at Lansdowne and through the day-care facility and has engaged in a systematic way, medical personnel for him.

There is nothing in the home life, as between the mother and father, or in the general condition of the home, that prevents this child from remaining in the care and control of parents subject to supervision to ensure that a minimally acceptable status quo with respect to the care of this child continues as it has in the past. The risk here is that the mother’s negative attitude, coupled with an order that L. remain in care, may cause the mother to become less consistent and more confrontational with respect to care for A..

Therefore supervision and specific terms of supervision are required. [ 22 ] In the coming months, the mother will be given an opportunity to seek out those services that she thinks are beneficial, or are recommended to her as beneficial. Perhaps more important than the choice of services to be engaged is the choice to remain committed to involvement with those services as issues come up from time to time between service provider and the mother.

Whether or not this will be accomplished will have a great deal to say about if and when L. is returned to parental care. [ 23 ] As a result, there will be an order that L. remain in the care and control of the Children’s Aid Society of Brant with access to the mother and father as follows: (

a) for two 4-hour periods weekly in the home of the parents without supervision; and (

b) at such other times as agreed between the society and the parents. [ 24 ] The child A. shall be returned to the parents under supervision of the society; supervision terms will be as follows related to both children while in the home. (

i) The parents will work in a co-operative manner with society personnel and will meet with society personnel as scheduled, scheduling to be agreed upon between society workers and the parents. (ii) The parents will ensure that the children’s physical, emotional, medical and educational needs are met. (iii) Existing services will continue for the children, facilitated by the children’s aid society with respect to L. and facilitated by the parents with respect to A. including Lansdowne Children’s Centre, continuation of involvement with the family doctor, Dr.

Murray, continuation of therapeutic day care and attendance of the child L. at Woodview Children’s Centre for assessment. (iv) Any services organized for the child A. by the parents will be made known to the society personnel in advance. (

v) The parents will permit the society personnel to attend at the residence for conversation with and inspection of the child A. at any time during normal business hours, and with respect to the child L. at any time while he is in the care of the parents. (vi) The parents will sign releases of information forms allowing the society to communicate with any service provider for either child. (vii) The parents will not change their place of residence without first advising society personnel of the change of residence address and telephone number at least five days in advance.

The parents will ensure that the home is maintained at an appropriate level of cleanliness and order for the proper care of both children.