Children’s Aid Society of Algoma v. T.S., 2011 ONCJ 782

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 . . . 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. Elliot Lake Registry No. 02/07 DATE: 2011·XII·12 CITATION: Children’s Aid Society of Algoma v. T.S. , 2011 ONCJ 782 ONTARIO COURT OF JUSTICE BETWEEN: CHILDREN’S AID SOCIETY OF ALGOMA, Applicant, — AND — TS. and SL., Respondents Before Justice Robert P.

Villeneuve Heard on 3 October 2011 in Blind River Oral Reasons for Judgment delivered on 12 December 2011 Written Reasons for Judgment released on 23 December 2011 Bonnie L. Ostroski ........................................................................ counsel for the applicant society T. Frederick Baxter .............................................................. counsel for the respondent mother, TS No appearance by or on behalf of the respondent father, SL, even though served with notice T.

Frederick Baxter ................................................................... agent for PA (proponent of motion)

[1] JUSTICE R.P. VILLENEUVE:— The court reviewed evidence and heard submissions on three motions on this date. The first motion, being the society’s motion found at tab 2 sought an order placing the child “N” in the temporary care of the children’said society with access provisions in favour of the mother Ms. TS, the father Mr. SL and Ms.

PA with whom the child had been placedon a supervision order by an order of this court on 14 March 2011 and from whom the child was apprehended on 12 September 2011. [2] A brief history of this file would be in order. [3] The child “N” has been in the care and custody of the society since 31 January 2007 save and except for a period oftime during which he was being cared for by Ms. PA The society sought an order of Crown wardship without access. A finding wasmade on 30 July 2009 that the child “N” was a child in need of protection pursuant to subclause 37(2)(a)(

i) of the Child and FamilyServices Act, R.S.O. 1990, c. C-11, as amended (“the Act”). [4] The application proceeded to trial before Justice André L. Guay. Justice Guay’s decision was released on 17 March2010 placing the child “N” in a kinship placement with Ms. PA on a supervision order with access to both parents on terms set out withinthat order. [5] The society appealed that decision having previously determined in October of 2009 as a result of a kinship assessmentconducted on Ms. PA that placement of the child “N” with her would be unsuitable. [6] Justice M.

Gregory Ellies of the Superior Court of Justice dismissed the society’s appeal. However, at the Society’sinsistence (and on a point central to this most recent apprehension), Justice Ellies ordered that the child be enrolled in a public school asdirected by the Children’s Aid Society of Algoma. [7] Given the length of the delay associated with the appeal of Justice Guay’s decision the child “N” was not placed in theMs. PA home until 25 February 2011 shortly before the expiry of Judge Guay’s 12-month supervision order.

Accordingly, the societysought and obtained an order of this court for a supervision order placing the child in the Ms. PA home incorporating Justices Guay’sand Ellies’ conditions. [8] Prior to adjudicating on the society’s motion at tab 2, I will firstly address a motion brought at tab 5 by Mr. Baxterwherein he seeks to have Ms. PA named as a parent of the child “N” or in the alternative the addition of Ms. PA as a party to theseproceedings. [9] The court has reviewed the definition of “parent” in

section 37 of the Child and Family Services Act. There is nothingin clauses (

a) through (

f) that would convince this court that Ms. PA is a “parent” within the definition of the Child and Family ServicesAct. The child “N” was placed in her care on 27 February 2011 on a supervision order. It has been argued that clause (

d) in thedefinition of “parent” might apply. I do not conclude such for the following reason. At no time did Ms. PA demonstrate a settledintention to treat the child “N” as a child of hers during the 12-month period before intervention under

Part III of the Child and FamilyServices Act. I find that the word “intervention” must be read to refer to the initial intervention by the society back in January of 2007. At that time, Ms. PA was not in the picture. Even if I were to accept that the most recent apprehension in September of 2011 constitutedthe “period of intervention” the child “N” would have been in the care of Ms. PA but for 6 or 7 months. [10] The issue is not so clear, however, when it comes to deciding whether Ms. PA ought to be added as a party to theseproceedings. The term “party” is not defined in the Act.

It is defined however in rule 7 of the Ontario Family Law Rules, O. Reg.114/99, as amended, and in particular in subrule 7(4). Subrule 7(4) reads as follows:

(4) Parties in cases involving children.— In any of the following cases, every parent or other personwho has care and control of the child involved, except a foster parent under the Child and FamilyServices Act, shall be named as a party, unless the court orders otherwise: 1. A case about custody of or access to a child. 2. A child protection case. 3. A secure treatment case (Part VI of the Child and Family Services Act).

(5) Party added by court order.— The court may order that any person who should be a party shall beadded as a party, and may give directions for service on that person. [11] The society opposes the addition of Ms. PA as a party to these proceedings. In so doing, the society relies on the decisionof Justice Manjusha B. Pawagi the Ontario Court of Justice in Brampton in Children’s Aid Society of Peel Region v. Mizan A., 2009ONCJ 348, [2010] W.D.F.L. 5394, [2009] O.J. No. 6240, 2009 Cars​well​Ont 9516 (Ont.

C.J.). [12] At paragraph [12] of that decision, Justice Pawagi referenced the case of Children’s Aid Society of London and Middlesexv. S.H., S.W. and D.R., , 118 A.C.W.S. (3d) 672, 16 O.F.L.R. 126, [2002] O.J. No. 4491, [2002] O.T.C. 916, 2002Cars​well​Ont 4048 (Ont. Fam. Ct.). In that case, the court set out the following principles for the court to consider before adding a partyto a child protection proceeding. Those principles were as follows: (

i) whether the addition of the party is in the best interests of the child, (ii) whether the addition of the party will delay or prolong proceedings unduly, (iii) whether the addition of the party is necessary to determine the issues, and (iv) whether the additional party is capable of putting forward a plan that is in the best interests ofthe child. [13] Reference was made to a fifth principle in the case of Children’s Aid Society of London and Middlesex v. J.P., , 95 A.C.W.S. (3d) 316, [2000] O.J. No. 745, [2000] O.T.C. 139, 2000 Cars​well​Ont 718 (Ont. Fam. Ct.), wherein thefollowing principle was added:

(

v) whether the person seeking to be added as a party has a legal interest in the proceeding ( i.e. , whether an order can be made in their favour or against them). [ 14 ] In assessing whether Ms. PA ought to be added as a party, I must remind myself of the circumstances in which the child “ N ” was ultimately placed in her home. During the initial child protection proceedings and prior to the trial conducted in November of 2009, Ms. PA became part of the respondent mother’s plan as a result of the child’s mother’s relationship with Ms. P A. Ms.

PA. resides in a rural setting approximately 3 miles outside of the Village of Iron Bridge. She resides there with friends and two of her children. Her residence is located near the residence of Ms. TS’ father and hence Ms. TS’ familiarity with Ms. PA [ 15 ] Ms. PA stepped forward in those proceedings in an attempt to have the child “ N ” placed with her so that she could ensure that Ms. TS and her child could maintain a relationship in the face of the society’s application for a Crown wardship order without access for purposes of adoption. [ 16 ] Ms. PA was assessed by the society.

She had prior dealings with the society as a result of allegations of sexual abuse on her children. However, my reading of the material filed would not indicate that those children were ever apprehended from her home. The evidence would seem to suggest that Ms. PA continued to raise her children to adulthood. Her 22-year-old son and her 15-year-old daughter continue to reside with her at this time. [ 17 ] As a result of the society involvement with Ms. PA, the kinship assessment was denied and the society maintained the position at trial that placement with Ms.

PA ought not to be considered. [ 18 ] Justice Guay thought otherwise and ordered the placement of the child “ N ” with Ms. PA on a supervision order on a number of conditions with access to both parents. That access initially was to be regulated by Ms. PA, but as evidenced in the affidavit material filed, that did not work out and the society began supervising the father’s access until such time as he stopped exercising it and to a more limited extent, supervised mom’s access although she continued to see the child on a weekly basis in Ms.

PA’s home. [ 19 ] In reviewing the five principles set out above to consider before adding a party to a child protection proceeding, it can be argued as it is by the society that Ms. PA does not fit into any of the categories enunciated therein.

It can no doubt be argued that the addition of her as a party may delay or prolong these proceedings unduly, given that not much has changed with respect to each of the parents and that neither is in a position at this particular time to offer his or her own plan in the face of the Crown wardship without access status review application. [ 20 ] The “best interests of the child” is enunciated in two of the principles set out in the aforementioned court decisions. Ms. PA, by her own submission and in the affidavit material filed with the assistance of Mr.

Baxter, maintains hers, her family’s and the child’s attachment to each other. She maintains that placement with her is in the child’s best interests as such a placement will encourage and indeed foster a continuing relationship between the mother at the very least and the child. She is prepared to allow access and has continued to do so. She is a neighbour of Ms. TS, which would enable Ms. TS to maintain regular contact with her son. Ms. PA argues that clearly the opportunity of ongoing access is in the best interests of the child. [ 21 ] While it may be difficult to conclude that Ms.

PA squarely fits within one or more of the principles enunciated above, it is clear that Justice Guay in his decision of 17 March 2010 considered the attributes of Ms. PA and the potential role that she could play in the child “N’s” life. Ms. PA seeks to convince this court that she was playing that important role at the time of apprehension and that she should consequently be entitled to participate in these proceedings in view of Justice Guay’s order as a party giving her all the rights associated with such a ruling. [ 22 ] It is difficult to disagree with that reasoning at this stage of the proceedings. Ms.

PA has played a role in this child’s life both prior to Justice Guay’s order in that she was exercising access to the child with Ms. TS and of course since this decision that effectively placed the child in her care on 25 February 2011. [ 23 ] Accordingly, there shall be an order adding Ms. PA as a party to these proceedings and she shall be given 30 days from the date of the release of this decision to file an answer.

She will be required to be prepared for the settlement conference previously scheduled for 27 January 2012. [ 24 ] The society’s motion at tab 2 seeks an order placing the child “ N ” in the temporary care of the Children’s Aid Society of Algoma with access to the mother, the father and Ms. PA The society has filed various affidavits in support of its position. Ms. TS and Ms. PA have filed affidavit evidence in support of a return of the child “ N ” to Ms. PA [ 25 ] The society’s affidavit evidence is extensive and it asserts a lack of co-operation on the part of Ms.

PA since the child “ N ” has been placed in her care and a flouting by her of the order of this court dated 14 March 2011 which incorporated the terms of the order of Justice Guay of 17 March 2010 and the order on appeal of Justice Ellies of February 2011. [ 26 ] The society has been conducting scheduled and unscheduled visits in the A. residence since placement of the child with Ms. PA on 25 February 2011.

Society’s evidence suggests that the home is regularly unkept, untidy, smelling of animal urine and generally disorganized. [ 27 ] More importantly however, the society’s affidavit evidence filed by various deponents cites a lack of co-operation and the unwillingness on the part of Ms. PA to co-operate with the society as it pertains to medical attention for the child “ N ” and enrolling him in school. The society’s material deposes that, on appeal, although unsuccessful, it managed to convince Justices Ellies of the need to enrol the child “ N ” in school. The society was concerned of the rural nature of Ms.

PA’s residence and the lack of interaction that the child would have with children of his own age in her residence. For that reason, the society managed to convince a judge on appeal that enrolling the child in public school would ensure that the child got out into the community and interacted with other children. [ 28 ] Society workers began as early as April or May of 2011 to remind Ms. PA of her obligation to ensure that “ N ” was enrolled in junior kindergarten at the Iron Bridge Public School. Ms. PA resisted that suggestion and, by her own admission in her

affidavit evidence, questioned the virtues of public school education versus home schooling to which she had exposed her own children. The condition of enrolling the child in school in accordance with society recommendations was not one upon which the children’s aid society was prepared to be flexible. This created a continuing source of friction between the society workers and Ms. P A. Affidavit evidence filed by the society would suggest that, up until the eve of school commencing, Ms. PA had not yet made the arrangements to enrol “ N ” in school.

She did attend in accordance with evidence filed by the society and based on a conversation with the school secretary to obtain a copy of the school curriculum with the full intentions of home-schooling “N”, contrary to the recommendations of the society. [ 29 ] There is nothing in Ms. PA’s affidavit evidence or in submissions made by her at the hearing of these motions to suggest that she feels any less about home schooling. She continued to extol the virtues of home schooling up to and including the day of the motion. Ms.

PA went so far as to indicate that she felt better equipped to safeguard the best interests of the child “ N ” than the society. [ 30 ] Throughout the child protection worker visits over the spring and summer of 2011, Ms. PA and those workers engaged in various conversations regarding “N’s” personal health. Those conversations, according to society workers, centred on various self- diagnoses made by Ms. PA about the child. Society evidence suggests that Ms. PA has diagnosed this child with everything from ADHD, to ADD, to diabetes. Throughout these conversations, society workers insisted that Ms.

PA make an appointment for the child to see a physician. Ms. PA made mention of Dr. Keuhl who is a paediatrician in Sault Ste. Marie. No such appointments were ever made and in fact the society evidence deposes that no referral can be made to this paediatrician but through a family doctor, which neither Ms. PA has or the child has. According to the society’s evidence, she made no efforts in attempting to secure a family physician for the child, choosing instead to self-diagnose the child and attempt to regulate the things through diet. [ 31 ] Ms.

PA denies ever having offered any diagnoses for the child; yet on the other hand, her affidavit evidence and her submissions at the motion would suggest that she has a familiarity with these conditions and that she has observed some of these symptoms in the child “N”. [ 32 ] Ms. PA did point out in her affidavit at tab 9 at paragraph 10 that the child has seen Dr. Purzner, a dentist, and Dr. Aceti, an optometrist.

Paragraph 16 of her very own affidavit does list in her view some signs that the child has ADD. [ 33 ] The society’s affidavit evidence at tab 11 deposes that Laurie Green, an infant development worker with the Algoma Public Health Unit, contacted Ms. PA as she had been working with the child prior to placement with her. Ms. PA refused her services and, according to Miss Green, Ms.

PA mentioned that the child seemed to be suffering from ADHD and requested literature on how to deal with the matter. [ 34 ] The society’s evidence is that, since the apprehension of the child on 12 September, the child has been enrolled in a junior kindergarten program at Blind River Public School. A follow-up with the school on 26 September would indicate that the child is doing well socially, presents no issues or behavioural problems in this classroom setting. [ 35 ] It is clear that Ms. PA has very strong views on how a child in her home is to be raised.

She has child rearing views that are not shared by the society. There is nothing wrong with having contrary views on child rearing. No one approach is a solution. [ 36 ] What is evident, however, and I believe that Ms. PA fails to recognize this, is that she is not the parent of this child. The child has been placed in her care on terms and conditions set by the court and by the society. She has resisted society involvement from the get go.

Her position in submissions at the motion was quite evident in that she felt she should be the person making decisions for the child “ N ” and what is or is not in his best interests. She fails to recognize the role of the society in this proceeding. [ 37 ] Can the court take any comfort that, in making an order, Ms. PA would abide by the terms of that order? Regretfully, no. The order of 14 March 2011 has been a constant source of friction between the society and Ms. P A. Her unwillingness to co- operate with the society and its workers is evident in the society’s evidence filed and to a large extent in Ms.

PA’s evidence as filed. Despite any good intentions that she may have — and I do not find that she is ill-intentioned — in order for any supervision order to work, there must be willingness on the part of the person with whom the child is placed to work co-operatively with the society. Ms. PA unfortunately has displayed an unwillingness to do so, questioning at every turn society recommendations on such items as education, health, routine, and other factors important to a young child’s life. “ N ” is not her child and Ms.

PA, unfortunately, cannot make that distinction in my view. [ 38 ] To place this child back in her residence at this time on terms of a supervision order would give this court no comfort that those terms would be followed, which ultimately would lead to further apprehension down the road. [ 39 ] Accordingly, there shall be an order that the child be placed in the temporary care of the Children’s Aid Society of Algoma. [ 40 ] With respect to access, the father’s access has been sporadic at best. He has continued to resist society requests for hair follicle testing.

He did not participate or file any material on these motions. Accordingly, there shall be an order for access for the father on those terms set out in paragraph 3 of the notice of motion at tab 2. With respect to Mr. Baxter’s motion at tab 6 of the continuing record and in particular with respect to Ms. PA’s and Ms. TS’ attending supervised access together, that claim for relief will be denied. Ms. TS deposes in affidavit material filed that she questions some of the methods of Ms. PA, despite her generally supporting Ms. PA in this status review application. I think it best that Ms.

TS exercise access to her son on her own in accordance with the conditions set out in paragraph 2 of the society’s motion at tab 2. [ 41 ] With respect to Ms. PA, a motion at tab 6 seeks unsupervised access including overnight and week-ends. I will not make an order along those lines at this time, choosing instead to order access for Ms. PA in accordance with paragraph 4 of the notice of motion at tab 2. I would hope that Ms. PA and the society could work co-operatively towards unsupervised access in the near future.

Released orally: 12 December 2011 Released written copy: 23 December 2011 Signed: “Justice Robert P. Villeneuve”