) ) CHILDREN’S AID SOCIETY OF ALGOMA, ) ) John Rossi, for the applicant society ) — v. —, 2011 ONCJ 709

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 45(8) of the Act. This subsection and subsection 85(3) of the Child and Family Services Act , which deals with the consequences of failure to comply with subsection 45(8), read as follows: 45.—

(8) 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. . . . 85.—

(3) 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. Sault Ste. Marie Registry No. 52/1999 DATE: 2011·VIII·17 CITATION: Children’s Aid Society of Algoma v.

M.M. , 2011 ONCJ 709 ONTARIO COURT OF JUSTICE BETWEEN: ) ) CHILDREN’S AID SOCIETY OF ALGOMA, ) ) John Rossi, for the applicant society ) — AND — ) ) M.M. and J.L., ) ) ) ) ) Respondent mother, M.M., unrepresented, Lynn Tegosh, for the respondent father, J.L. David Stone, for the Office of the Children’s Lawyer ) ) ) HEARD: 6 July 2011 [ 1 ] JUSTICE J. KUKURIN:— This a decision on a motion (at Tab 2) for temporary care and custody of two children, M. (age 14) and G. (age 7). The motion was brought by the applicant society in this child protection case.

It seeks an order placing both children in the temporary care and custody of their maternal grandmother. [ 2 ] Both children have been living with their grandmother since they were placed there with the father in early December 2010. [1] At that time, the father was in a relationship with Ms. J.T. who has an extensive history of drug addictions. She moved into the father’s home in July 2010 following her completion of a residential drug-alcohol treatment program in the spring of 2010. However, by, at least , October 2010, she and the father were both using drugs. His care of the children deteriorated badly.

The children went to stay with friends temporarily in October 2010. They stayed there much longer than initially expected, approximately one month, mainly because of the father’s inability to address his problems at that time. When they returned to his care, he and his partner, Ms. J.T., signed a family service agreement with the society. This agreement was meant to address their drug problem and to ensure adequate care for the children. [ 3 ] Unfortunately, the family’s circumstances continued to deteriorate.

By early December 2010, the father, recognizing that it was inappropriate for the children to continue to reside with himself and Ms. J.T., voluntarily placed them with the grandmother. The society started this child protection case later in December 2010. It seeks a finding that the children are in need of protection on grounds of risk of physical harm [section 37(2)(b)(

i) and (ii) Child and Family Services (CFSA) ]. The society’s claim in this application is for an order placing the children in the care and custody of the grandmother, subject to a supervision order, with a number of terms and conditions, for a period of 12 months. [ 4 ] Contemporaneously with its child protection application, the society brought a motion (at Tab 2) for temporary care and

custody in favour of the grandmother. An interim order was made without prejudice on January 5, 2011. It also contained provisions for interim access to both the mother and the father. It was this motion that was argued before me on July 6, 2011 – six months later. By then, legal counsel had been appointed to represent the children. [ 5 ] There have been a number of significant developments in those six months. Both children have done very well in their grandmother’s care. M. does not wish to leave. There are several reasons for this.

Much of the father’s parental responsibilities for supervision and care of G. had been increasingly downloaded onto M.. This was aggravated by the presence in the home of Ms. J.T. whom the boys did not like, and the ever increasing preoccupation of the father with her and with their drug use. M., at age 14, had seen and had had enough. Perhaps the final straw was the failure of the father to attend M.’s grade eight graduation ceremony at the end of June 2011. [ 6 ] The father had wanted both boys returned to his care. He is aware of M.’s wishes to remain at this grandmother’s.

He accepts this and is not opposing the continuation of this status quo insofar as M. is concerned. Accordingly, the contest in the motion for temporary care and custody is with respect to the younger child G. only. [ 7 ] The test for temporary care and custody is found in section 51(3) CFSA . [2] The onus on this test always falls on the society.

It must not only satisfy the court that reasonable grounds exist to believe that G. is likely to suffer harm if returned to his father’s care, it must also persuade the court that reasonable grounds exist to believe that he cannot be adequately protected by an order of the court if he is so returned. The society has to meet both parts of this two part test, failing which the child must be returned to whoever had charge of the child prior to the society’s application. [3] [ 8 ] The father’s argument is that there have been enormous changes in circumstances in the past six months.

These changes, he asserts, have reduced protection concerns substantially. In terms of the statute, he maintains that the society can no longer satisfy either part of the two-part test in section 51(3). The society disagrees. [ 9 ] To determine who is correct, it is necessary to look at not only the last six months, but also the history of these children over their lives. [ 10 ] M. is the not the father’s biological son. M., born in March 1997, was being raised in the care of his mother, Ms. M.M. Unfortunately, the mother has severe addiction issues dating back to 1999, and possibly even earlier.

In 1999, when M. was age two years, the society removed him from his mother’s care. He spent over eight months back then living with his maternal grandparents before being returned to his mother. [ 11 ] Sometime between 2000 and 2002, the father, Mr. J.L., entered into a relationship with the mother. It was neither long nor a particularly happy one. The father, Mr. J.L., spent some time incarcerated due to his assault on the mother. She had become pregnant by him in 2003. They may have already been separated by the time their son G. was born in March 2004.

The mother’s life went downhill after that and her parenting worsened. By 2007, she had tested positive for cocaine and was charged with possession. She agreed to stop using drugs. [ 12 ] In April 2007, the society started a child protection application seeking a supervision order for both children. By May 2007, the mother had tested positive again for cocaine, and both boys were apprehended by the society. [ 13 ] In the meantime, the father, Mr. J.L., had moved on with his life.

Although he had a history of drug abuse, criminal involvement, and had been convicted of a serious assault on the mother, he appeared, by mid 2007, to have made significant progress in turning his life around. Drug testing confirmed that he had stopped using. He had completed an anger management program. He was working with community services and had some family supports. He put forward a plan to care for the boys. They were placed with him on an interim basis in June 2007.

By December 2007, they were placed with him on a final basis subject to a 12 month supervision order. [ 14 ] By this time, the father had a new partner, Ms. J. I I., who provided support and assistance to the father, in his care of the children within the household. He was working cooperatively with the society and accessing assistance from community service providers. In August 2008, he obtained a domestic order of sole custody of both children. By December 2008, the society terminated its protection order and closed its file. The father, Mr.

J.L., was seemingly parenting the boys fairly well, and was able to provide stability, supervision and safety. [ 15 ] This did not last long. By late December 2008, he and his partner Ms. J. I I. were having conflicts within the home. They became serious enough that Mr. J.L. called the police, on a number of occasions, to have Ms. J. I I. removed. She ultimately left and got her own apartment after a brief stay at Women in Crisis. She reported that Mr. J.L. was back to using drugs. Mr. J.L. was also having conflicts during this time with the mother of the boys over the issue of maternal access.

Also, by late 2009, he was asking for help from the society in managing M.’s behaviours. [ 16 ] In 2010, the father’s circumstances worsened: - According to Ms. J. I I., who claims to be an eye witness, the father was using drugs intravenously. - The father had entered into a relationship with Ms. J.T., a known drug user and she moved into the father’s home. - Neighbours reported that the father’s supervision of the boys had deteriorated badly and the boys were observed unsupervised around the housing complex. - The father was delegating increasing childcare and supervision of G. to M.. - Ms.

J.T. relapsed after attending a treatment program for drug abuse in April 2010 and the father allowed her to move in with him ostensibly to help her maintain sobriety.

- The father had some financial stresses. He fell behind in his rent, was being evicted, and had to rely on the grandparents to buy clothes and books for the boys before school in September 2010. - The father began spending less time at home, little time with the children, and was increasingly in conflict with Ms.

J.T. - Despite earlier denials, the father was, in fact, using cocaine intravenously, and he finally admitted this in mid-October 2010. - The two boys, placed overnight with friends of the father, ended up staying there for more than three weeks in October-November 2010. - The father enrolled in a college program in September 2010. He was a dropout by November. - The father and Ms. J.T. entered into a family service agreement in November 2010. One term of this agreement required the father’s abstention from drugs.

By early December 2010, he had again relapsed and admitted that he was addicted, not only to cocaine but also to oxycontin. - By December 3, 2010, the two boys moved in with their maternal grandparents. They have been there ever since. - In late December, the father and J. were arrested and charged with robbery. He was also wanted on warrants for prior offences. - The father was released on bail with his former partner, Ms. J. I I., as surety. He breached a condition of non-communication with his co-accused Ms. J.T. He ended up behind bars again, and Ms. J. I I. revoked her suretyship.

He remained in custody over a month. - On January 6, 2011, the father’s hair follicle test was positive for high levels of cocaine, also for opioids and oxycodone (trace amount). [ 17 ] This history is not very pretty. It is fair to say that the father made some very poor choices. He put his needs well above those of the children. He even ranked the needs of Ms. J.T. ahead of those of the two boys. Care and supervision and paternal responsibility all went south as he became entangled with a drug addicted partner and became embroiled in his own addictions once again.

He pawned belongings of the boys and took M.’s paper route earnings to finance his drug use. He was evicted, convicted and incarcerated. This was not a minor blip in his life. It was a major spiral completely out of control. Of some significance, it was not the first time he had been involved in criminal conduct, incarceration, drug abuse, dysfunctional relationships, and a generally unstable lifestyle. [ 18 ] How then, with this background, does the father claim that the society has failed to meet the two-part test in section 51(3) CFSA ? [ 19 ] The answer is simple. He says that he has reformed.

He no longer uses drugs. He is no longer in a relationship with Ms. J.T. He has a job. He has new accommodations which are suitable and which he keeps clean. He has begun attending church and his church community, particularly his pastor, are very supportive of him. He has exercised access regularly and access has gone well for the most part. He has arranged for childcare by an acquaintance, a mother of two children, for the balance of the summer when he is working. In the fall, he plans for G. to be involved in a YMCA Program that offers childcare before and after school hours.

This will provide sufficient care while he is working. His roofing work is seasonal, and when it shuts down for the winter months, presumably he will be available full-time to care for G.. [ 20 ] If everything the father says could be taken as gospel, perhaps it might be appropriate to return G. to his care and custody. However, his assurances alone are not enough. The evidence of the society establishes fairly well that the father hid his relapse back to drug use from the society in 2010. He, in fact, denied he was using until he could no longer deny it.

He told the society that he would abstain from further use of drugs. He didn’t keep that promise. He told the society and he had no intention of having Ms. J.T. reside with him, that she had her own place, that they were no longer in a relationship, and that she was too young for him. Moreover, he promised he would not have her in a care giving role to the children. None of this turned out to be the case. [ 21 ] The society’s evidence is that Ms. J.T. was seen at his home in 2011 on two different occasions, once by a society worker, and once by Ms. J. II.

These occasions were at a time when the father and J.T. were prohibited by court imposed conditions from communicating. The father claims none of this is true. Frankly, I disbelieve him. These are not hearsay statements offered by the society. They are firsthand eye witness accounts. [ 22 ] The affidavit of Ms. J. IMs. J. I. describes an incident that occurred on January 8, 2011 at approximately 7 p.m. It is beyond belief that she could be mistaken. After arriving at the father’s home, with the father present, Ms. J.T. “suddenly jumped out of the father’s closet naked” and attacked Ms. J. IMs. J. I.

The police were called, removed Ms. J.T. and charged her for assault and breach of condition. The father is hard pressed to deny that Ms. J.T. was present. Nevertheless, he insists that Ms. J. IMs. J. I. is a malicious liar. He does not really address her allegations of the evening of January 8, 2011. I believe these allegations. [ 23 ] Even more disturbing is the account of the society worker Jennifer Pineault of her observation of Ms. J.T. sitting on the living room couch in the father’s home in the evening of June 3, 2011. The father adamantly denies this.

He maintains that she was mistaken and that the woman that she actually saw was Ms. C.D., a friend he met through his church. In fact, Ms. C. D. swears an affidavit that she has been at the father’s home every Friday from 6 p.m. to 11 p.m. including the evening of June 3, 2011. Ms. Pineault also recounts that when she first confronted him about seeing J. in his home that evening, his explanation was that the woman she saw was the girlfriend of his friend , not J.. He subsequently denied having said this. [ 24 ] There is certainly some contradictory evidence about this occasion.

It raises the spectre of a continued involvement of J. with the father right into the summer of 2011. [ 25 ] While that relationship, if it exists at all, is of some relevance, the father’s drug use is considerably more important a factor

in terms of child protection. Indications from hair follicle testing are that the father’s claims that he has stopped using are true. To some extent, his pro-social activities and involvements, namely a job, a home, church attendance, fairly regular and positive access visits – these all suggest that the father has once again turned his life around for the better. [ 26 ] How permanent are these changes? This is difficult to say. Ultimately, only time will tell. The evidence of the father is not particularly strong. The strongest evidence of his reformation is his own statement to this effect.

He attributes much of his turnaround to his religious faith. However, there are some disquieting aspects of how his participation with his church community and reliance in his faith translate into a long term drug free lifestyle. [ 27 ] Firstly, he was released from custody in mid-February 2011. My inference is that he did not have much of a religious life prior to that time. He does not say when it was precisely that he started attending church but it must have been between April and June. Accordingly, he has less than six months of church life now, with very little description of what that life has been.

The letter from his pastor (dated June 8, 2011) expresses an admiration for the father’s resolve for a new life, but does not say anything specific about drugs, drug counselling or anything about rehabilitation from drug addiction or relapse prevention. Moreover, the father refused to sign a release requested by the society authorizing it to obtain more information directly from the pastor.

The inference I make is that the father likely benefits from the support, encouragement and advice of the pastor, but they do not have any kind of structured counselling relationship, particularly not one that specifically addresses drug abuse. [ 28 ] Secondly, the father eschews any community based counselling or programs designed to help drug users back to a drug free lifestyle. From the evidence, it appears that he attended at least one session (on May 17, 2011) with an addiction counsellor at the Community Alcohol Drug Assessment Program (CADAP).

The evidence is somewhat contradictory as to why he never returned. He says that his counsellor told him that it was not necessary to continue because she thought he was doing okay. The society alleges that his further involvement with CADAP was discussed and it was he who declined to continue. There is nothing in evidence directly from CADAP. However, it is very clear that he did not complete any CADAP sponsored substance abuse program. [ 29 ] The father’s solution to what I conclude was a serious addiction is his own resolve, his new found faith, and his support from his pastor.

There is no evidence of any other resource at the church or elsewhere in the community which the father accesses that is specific to substance abuse. The society recommended he attend long term treatment. He refused. It suggested a structured relapse prevention program. He declined. [ 30 ] There are other concerns about the father that impact on his ability to parent. The most obvious is his choice of relationships, in particular, his female partners. Since he himself makes it very clear that his relationship with Ms. J.

I I. was a poor one, it is difficult to avoid the conclusion that the father is already a three-time loser in only the past six or seven years. [4] Is he working on a new relationship with Ms. C. D.? He doesn’t say. Nor is there any explanation of what she and he do at his home every Friday from 6 p.m. to 11 p.m. Is she part of his plan to parent G.? He hints that she is not, but she will clearly have regular contact with G. if he is returned to his father’s care. [ 31 ] The dysfunctionality of relationships involved not only drugs but also violence.

The father seriously assaulted the mother, was convicted and spent time in custody for this. Ms. J. I. and the father blame each other for their poor relationship. She says she left because of his sexual, physical, emotional, mental and verbal abuse of her. He claims she was the bad guy who caused the trouble in the relationship. Wherever the truth may lie, it is clear that the police were dispatched a number of times as a result of domestic complaints in their home.

There is an indication that the father attended only one session of an 11 week program which involved meeting once weekly for two hours in the evening. He was removed for non-attendance, which, according to him, resulted from his work commitments. This seems rather lame when he claims in the same affidavit that he often returns home from work between 2 p.m. and 5 p.m., and that Ms. C. D. is with him every Friday evening from 6 p.m. to 11 p.m. The bona fides of his commitment to an anger management program is, in my view, very shaky.

The bottom line is that he has not done such a program recently. [ 32 ] The other concern about the father is his criminal conduct. Obviously he cannot parent when he is in custody. And he has spent time in custody, more than once, even relatively recently. His most recent serious charge was break and entry and commit robbery with Ms. J.T. as his co-accused. While this charge against him was withdrawn, and not dismissed, this does not mean that he did not commit this offence, nor does it mean that he cannot be charged again for it.

J.T. is scheduled for a trial on this charge in October. [ 33 ] The father’s failure to comply with court ordered bail conditions is of concern as the court has to have confidence that he will abide by conditions of an interim supervision order if G. is returned to his care. [ 34 ] The father is currently on probation on an offence of mischief committed in 2010. Of significance is the fact that he spent 28 days in pre-trial detention, and still received an additional 17 days imprisonment as a sentence. He is currently on probation for this offence with a condition to keep away from Ms.

J.T. and from a specifically named bar. [ 35 ] In

summary, I am satisfied that the society has met both parts of the two part test in section 51(3) CFSA . The father has too long a history of too many problems that impact negatively on his ability to parent, with too little evidence to satisfy the court that this is all in the past and that he can be now relied upon to parent G. adequately.

While he deserves some commendation for the progress he has made, he is relatively recent in his conversion to a more positive lifestyle, and there are still a number of questionable areas in his life. [ 36 ] Of some interest, from a statutory point of view, is how the court could justify a return of one child to the father, but not the other. The hierarchical structure of section 51(2) requires the court to return a child to the person who had charge of the child prior to the society’s intervention if the society does not meet both parts of the two part test in section 51(3).

If, as the father has argued, the society failed to do so, the court would have been obligated to return both of the boys to him. [5] [ 37 ] The father’s plan for G. was not totally unreasonable, but not a particularly good one.

It involved a summertime caregiver during the daytime who was a virtual stranger to G., very long weekdays when school recommences cared for by childcare providers both before and after school, and care by a single parent father who did not have a stellar parenting history with the two boys in the relatively short time they were in his care. [6] His plan would separate G. from M., a rather drastic change for both boys. My inclination is to leave the boys with their grandmother for now.

Released: 17 August 2011 Justice John Kukurin