Children’s Aid Society of Waterloo Region v. P.D.A.T., 2010 ONCJ 739

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. Kitchener Registry No. 198/09 DATE: 2010·XII·29 CITATION: Children’s Aid Society of Waterloo Region v. P.D.A.T. , 2010 ONCJ 739 ONTARIO COURT OF JUSTICE BETWEEN: CHILDREN’S AID SOCIETY OF THE REGIONAL MUNICIPALITY OF WATERLOO, Applicant, — AND — P.D.A.T. and J.C.W., Respondents. Justice Margaret A.

McSorley Heard on 7-10 and 22-24 September 2010; 22-26 November 2010; and 6-7 December 2010 Reasons for Judgment released on 29 December 2010

STATUTES AND REGULATIONS CITED Child and Family Services Act , R.S.O. 1990, c. C-11 [as amended], subsection 1(1) , subsection 1(2) , subclause 37(2) ( b )(ii), clause 37(2) ( g ), subsection 37(3) ,

section 57 , subsection 57(3) , subsection 57(8) and

section 57.1 Children’s Law Reform Act , R.S.O. 1990, c. C-12 [as amended]. John A. Morscher .......................................................................... counsel for the applicant society Walter W. Wintar ....................................................... counsel for the respondent mother, P.D.A.T. Cindy A. Martin-Hrycak ................................................. counsel for the respondent father, J.C.W. Mark M. Maurer ................................................... counsel for the Office of the Children’s Lawyer, legal representative for the child JUSTICE M.A.

McSORLEY:— 1: INTRODUCTION [ 1 ] The matter before the court is a protection application concerning one child, C.J.P.W. (born on […] August 2002). Initially, the society sought a six-month supervision order with the mother but later amended its application to seek a nine-month supervision order placing the child with the father. [ 2 ] On day six of the trial, 23 September 2010, the parties submitted a statement of agreed facts regarding the protection finding.

On the basis of the information contained in the statement of agreed facts, I made an order confirming the statutory findings and found C.J.P.W. to be in need of protection pursuant to subclause 37(2)( b )(ii) and clause 37(2)(

g) of the Child and Family Services Act , R.S.O. 1990, c. C-11, as amended. [ 3 ] The factors that led to this conclusion included physical and emotional conflict between the parents during cohabitation and after separation, significant conflict in the relationship between the mother and Mr. S.E., abuse of alcohol by both parents historically and the use of alcohol by the mother during the period of interim supervision, significant absences from school by C.J.P.W. and the failure of the mother to comply with the terms of the interim supervision order.

After the finding was made, the trial continued on the issue of disposition. 2: BACKGROUND [ 4 ] The parties were never married and lived together for a very short time, although they were in an on-and-off-again relationship from either the end of 2000 or beginning of 2001 until the early fall of 2001. The evidence from both parties was that the relationship was a rocky one with a lot of drinking being done by both of them and domestic disputes that led to several charges of assault for Mr. J.C.W. On the last occasion, Mr. J.C.W. was sentenced to 9 months in jail. According to Mr. J.C.W.’s evidence, Ms.

P.D.A.T. advised him that she was pregnant while he was in jail, during a three-way telephone call set up through Mr. J.C.W.’s mother. His evidence was that Ms. P.D.A.T. told him that, when he got out of jail, he would have to take responsibility for the child. Mrs. B.W.’s evidence was that she was present during the three-way telephone conversation and heard Ms. P.D.A.T. tell Mr. J.C.W. about the pregnancy and indicated that she was angry because she wanted Mr. J.C.W. to be with her. Her evidence was that Ms. P.D.A.T. never gave any indication that Mr.

J.C.W. was not the father of the child at that time nor had she done so since C.J.P.W. was born. [ 5 ] Mr. J.C.W. was present at the birth of the child and was named as the father on the statement of live birth, entered as exhibit 16. [ 6 ] Mr. J.C.W. was named as the father of C.J.P.W. in the initial protection application, which was issued in June 2009. In the mother’s answer filed in July 2009, she named Mr. J.C.W. as the father of the child. Mr. J.C.W.’s answer signed July 2009 indicated that he was the biological father of the child.

There were 14 court appearances prior to trial, including argument on interim care and custody of the child that occurred on 19 August 2010. At no time was the issue of paternity raised. [ 7 ] The first six days of trial were used by the society to present its case. On 24 September 2010, the 7th day of trial, the father opened his case and provided evidence in chief. It was not until his evidence in chief was completed that an issue arose during the morning break regarding the paternity of the child. Counsel disclosed, in chambers, that Mr.

J.C.W. was likely not the father of C.J.P.W. and that an affidavit of parentage might be required from the mother. Mr. J.C.W.’s lawyer believed that Mr. J.C.W. did not know that he might not be the father of the child. Mr. J.C.W.’s lawyer was given the lunch break to discuss the matter with Mr. J.C.W. and to obtain instructions on how he wished to proceed. The timing and motivation behind the disclosure by the mother after almost 15 months of litigation was concerning and her explanation why she was advising the court on day 7 of the trial raised serious issues about her credibility.

More will be said on this point later. [ 8 ] Following the lunch break, it was agreed that the parties would submit to DNA testing to determine the paternity of C.J.P.W. and the trial was adjourned to 22 November 2010. The parties were to immediately have the testing done so that the results

could be available before the return date. Mr. J.C.W. submitted his DNA sample by the end of October. However, the mother did not submit for testing until mid November. Notwithstanding the delay, the test results were available on 22 November 2010. The tests indicated that Mr. J.C.W. was not the biological father of C.J.P.W. [ 9 ] Mr.

J.C.W. gave further evidence on 22 November 2010 indicating that he had had no idea that he might not be the biological father of the child and that having learned he was not, he intended to continue with his plan of care for the child because in his view, he has been involved with C.J.P.W. since birth, has provided for him and, in his mind, C.J.P.W. is his son.

The paternal grandparents with whom the father lives and where C.J.P.W. has attended for access also indicated an intention to continue to treat C.J.P.W. as their own grandson as they always had. [ 10 ] As a result of the paternity testing, the mother was required to prepare an affidavit of parentage. She did so indicating only the first name of the putative father and swore to the facts that she had never been married, had never lived with the person whom she believed to be the father, had not named him on the statement of live birth and he had never been recognized in a court of law as a parent to C.J.P.W.

On the basis of this information, I found that Ms. P.D.A.T. and Mr. J.C.W. were the only parents of the child C.J.P.W., born on […] August 2002. 3: ISSUES [ 11 ] As indicated, the parties agreed that the child was in need of protection pursuant to subclause 37(2)( b )(ii) and clause 37(2)(

g) of the Act. Once the finding was made, the only issue left for determination was disposition. The parties also agreed that a supervision order was the most appropriate disposition and very little was said about specific terms. The only real issue was with whom the child would be placed under terms of supervision. 4: POSITION OF THE PARTIES [ 12 ] The society, the father and counsel for C.J.P.W. all took the position that it was in C.J.P.W.’s best interests to be placed with his father under terms of supervision.

Those parties believed that C.J.P.W. would have more stability and security in the home of his father and grandparents, that the father would more readily ensure C.J.P.W.’s consistent attendance at school, would not expose C.J.P.W. to abuse of alcohol and would co-operate and work with the society. The mother’s position was that she is dealing with her alcohol issues, that she can and will work with the society, that she intends to remain in Meaford for some time in the future and that the least intrusive order would be to leave C.J.P.W. in her care. 5: THE LAW [ 13 ] Pursuant to

section 57 of the Act, once the court finds a child in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court must make one of the following orders or an order under

section 57.1, in the child’s best interests: (1) that the child be placed with a parent or other person subject to supervision for at least 3 months and not more than 12 months; (2) that the child be placed in the care of the society as a ward of the society for a period not exceeding 12 months; (3) that the child be made a ward of the Crown and placed in the care of the society; or (4) that the child be made a ward of the society under paragraph 2 for a specified period and then returned to a parent or another person under paragraph 1 for an aggregate period not exceeding 12 months. [ 14 ] Pursuant to subsection 57(3), the court shall not make an order removing the child from the care of the person who had charge of him immediately before the intervention unless the court is satisfied that alternative that are less disruptive would be inadequate to protect the child.

Under subsection 57(8) when the court makes a supervision order, it may impose reasonable terms and conditions on the child’s parent(s), the person who will have care and custody of the child, the child and any other person who would participate in the care and custody of or have access to the child. [ 15 ] Any order of the court must be made in the best interests of the child as set out in subsection 37(3) of the Act and all orders must have regard to the paramount purpose of the Act — that is, to promote the best interests, protection and well being of children as set out in subsection 1(1).

Other purposes set out in subsection 1(2) include recognizing that the least disruptive course of action that is available and is appropriate in a particular case should be considered but are not paramount. 6: ANALYSIS [ 16 ] In determining the least disruptive course of action that is available, the court must be satisfied that such an order will still protect the child and meet his best interest.

The court cannot look at the least disruptive factor on its own; it must consider all of the circumstances surrounding the finding and the plans put forward by the parties. [ 17 ] Although leaving C.J.P.W. in the care of his mother under terms of supervision is the least disruptive course of action having regard to the fact that C.J.P.W. has lived in his mother’s care all his life, the court is not satisfied that such an order will protect the child, address the historical and ongoing issues of concern or be in his best interests. [ 18 ] Before discussing the evidence, it is important to discuss the credibility of the parties and how the acceptance or non-

acceptance of their evidence affects the decision. The court has serious difficulties in accepting the mother’s evidence on most of the issues. Some of her evidence need not have been so misleading and one wonders why she bothered to mislead or lie to the court about the issue. For example, when discussing a new job for which she was interviewing and training at a ski club, she asserted in her evidence in chief that the club did not stay open nights or on weekends.

Initially, the court found this information difficult to believe in that most ski resorts make the bulk of their income on weekends during the winter months. It became apparent that this was the fact when, on cross-examination, the mother was presented with evidence of the club fees for evenings, holidays and weekends. When pressed, the mother simply stated that, just because the club was open on weekends, it did not mean she had to work. Obviously, the mother was concerned about how the court would feel about the possibility of her working weekends when C.J.P.W. was in her care.

Rather than just admit that the club was open but that she would not be working on weekends when C.J.P.W. was with her, she chose to lie about the issue. [ 19 ] When a party is prepared to lie about insignificant issues, the court must closely examine his or her evidence on those issues that are significant. [ 20 ] Although paternity was not in issue, the mother’s actions in bringing the matter before the court on day 7 was concerning. The mother’s evidence was that she advised the respondent father while he was in jail that she had been seeing someone else and that she was pregnant.

Her evidence was sketchy on whether she also advised him that she expected him to take some responsibility for the child. Mrs. B.W. testified that she was party to a three-way telephone conversation between the mother and the father during which the mother advised that she was pregnant and that she expected the father to take responsibility once he was released from jail. Mrs. B.W. indicated that at no time did the mother suggest that Mr. J.C.W. was not the father. Although the mother indicated in her cross-examination that Mrs.

B.W. lied, I can find no reason why she would do so. [ 21 ] In support of the father’s position that he believed he was the father of C.J.P.W. is the fact that he was present for the birth of the child and signed the statement of live birth. The mother did nothing to prevent Mr. J.C.W. from claiming the child as his own when C.J.P.W. was born. Later, Ms. P.D.A.T. and Mr. J.C.W. were involved in proceedings under the Children’s Law Reform Act , R.S.O. 1990, c. C-12, as amended, in which he was named as the father. A custody, access and support order was made and later varied.

No issue of paternity was raised at that time by Ms. P.D.A.T. [ 22 ] Ms. P.D.A.T. testified that Mr. J.C.W. had seriously abused her, beating her black and blue and running her down with a car. She testified that she was terrified of him. Notwithstanding this terror, knowing that he was not the father of her child, she invited him to step into the role of a father and be responsible for C.J.P.W. Their relationship was rocky at best and abusive at worst. The only rational explanation for keeping Mr.

J.C.W. involved was that she could not name the real father of the child and therefore could never have obtained support from him. Having regard to the fact that they had no real relationship after Mr. J.C.W. went to jail, there would be no reason for him to assume the responsibility of another man’s child, unless he believed the child to be his. [ 23 ] Further compounding her deceit on this matter was the fact that she filed court documents and swore affidavits that continued the lie. In her answer filed in these proceedings, she agreed that Mr. J.C.W. was the biological father of the child.

In two affidavits sworn in the early spring of 2009, she deposed that C.J.P.W. would be travelling with his natural father and gave consent for him to do so. In her affidavit of 6 August 2010, in support of the motion for interim care and control, argued just weeks before the trial began, she swore that Mr. J.C.W. was C.J.P.W.’s father and that C.J.P.W.’s birth “was the result of their relationship”. Although Ms. P.D.A.T. attempted to explain how C.J.P.W.’s birth could be the result of the relationship with Mr. J.C.W., her explanation made no sense. [ 24 ] Ms.

P.D.A.T. brought up the issue of custody only after the children’s aid society had put in its case. The timing of her disclosure led the court to wonder whether she was concerned about the evidence that she had heard and perhaps hoped that, if Mr. J.C.W. discovered that he was not C.J.P.W.’s father, he would withdraw from these proceedings. Her explanation was that she realized that she would have to testify under oath and did not want to perjure herself.

She had far fewer qualms about perjury when it came to swearing affidavits under oath or in misleading the court with documentation that was not sworn indicating that Mr. J.C.W. was C.J.P.W.’s father. [ 25 ] Similarly, her credibility was seriously challenged when speaking about her relationship with Mr. S.E. In affidavits, she swore that her relationship with Mr. S.E. was only one of friendship and that they had never been intimate. In her affidavit of 6 August 2010, she swore that he had never lived in her home, he had never lived with her and that he had never slept over at her home.

However, it became clear during cross-examination that Mr. S.E. had lived with Ms. P.D.A.T. in Thornbury and Owen Sound, albeit briefly. During cross-examination, she admitted that she had had intimate relations with Mr. S.E. Mr. S.E. himself confirmed in evidence that he and Ms. P.D.A.T. had been in an intimate relationship. [ 26 ] Surprisingly, she argued with society counsel when questioned about Mr. S.E.’s staying over at her home on the night that she was involved in a single-car accident. She testified that she had left an AA meeting and gone for coffee with other members of the group.

She indicated she was driving home some time after midnight when she was hit by a snow plough and tumbled into the ditch. She testified that she was in the ditch for some time. She did not agree that she was there all night. Yet the police report showed an officer attending on the scene at 5:44 a.m. Ms. P.D.A.T. testified that it took some time to get a tow truck and that she did not get home until 8:30 a.m. When asked who was caring for C.J.P.W., she testified that Mr. S.E. was caring for C.J.P.W. but then said that he had not stayed overnight.

Again her answer made no sense, except that she wanted to convince the court that Mr. S.E. was not staying overnight at her home. On that occasion, he clearly had had to remain in her home overnight to care for C.J.P.W. [ 27 ] Ms. P.D.A.T. also raised for the first time since these proceedings were started the fact that C.J.P.W. acts out after access with his father. Her evidence was that he bites, hits and kicks her and that she has to train him to sleep in his own bedroom and how to eat. Ms.

P.D.A.T. had never raised these issues before even in her affidavit of 6 August 2010 in support of the motion for interim care and custody. One would have thought that, if C.J.P.W. was acting out in the way described, Ms. P.D.A.T. would have brought it to the attention of the court when the issue was interim care and custody. Although she testified that she wanted Mr. J.C.W. in C.J.P.W.’s life because he was a good father and had always treated her daughter A. well, it seemed that, when there was a possibility that Mr.

J.C.W. might obtain an order placing C.J.P.W. with him, there were suddenly issues of how C.J.P.W. reacted after access and a statement by her

that Mr. J.C.W. was not a normal father. [ 28 ] Of most concern was the mother’s veracity regarding alcohol consumption, one of the major issues in this case. Both parents have a history of alcohol problems. Mr. Wintar, on behalf of the mother, raised the fact that the father was not as forthcoming as he could have been in that he did not admit to issues with alcohol use in 2005 and 2007 and did not admit to the very occasional drink during a trip to Jamaica and during the summer of 2010. Although I accept that Mr.

J.C.W. was less than forthright about very limited drinking, his drinking has not been the problem that the mother’s has been. [ 29 ] Mr. J.C.W. testified that he turned his life around and, although he had short relapses of alcohol abuse, he is not the constant drinker that he once was. Mr. J.C.W. voluntarily submitted to hair-follicle testing that showed a negative result, below the level of detection.

So, although he may have had a beer on the porch of his parents’ house during the summer from time to time, he clearly has not overindulged to the point of intoxication. [ 30 ] That is not the case with the mother. In June 2009, Justice Lynda J. Rogers ordered that the mother not consume alcohol when in a caregiving role to C.J.P.W. After hair follicle testing in December 2009 showed a result of .770 ng/mg, putting her in the chronic alcohol abuser category or 100% specific for regular, excessive alcohol consumption, Justice Paddy A.

Hardman ordered that the mother refrain from all use of alcohol. [ 31 ] In her affidavit of 6 August 2010, the mother committed to not drinking any alcohol until this matter was heard and determined. In the statement of agreed facts, signed on 22 September 2010, the mother added a sentence to paragraph 15 in which she stated: “[Ms.

P.D.A.T.] states that she has not consumed alcohol since June, 2010.” When she signed that statement for use by the court, she was well aware that she had consumed alcohol and that the statement was a lie. [ 32 ] Her second hair follicle test done on 2 November 2010 showed an increase in alcohol consumption over a six-month period of more than 3 times the amount in the December 2009 test. Knowing she had to explain this increase, she testified that she had been drinking for the month that C.J.P.W. was in his father’s care and had also been drinking on her birthday in October.

When asked to describe her drinking, she indicated that, when she went out on weekends that C.J.P.W. was with his father, she drank to get drunk and that she would drink 24 beers and considered that social drinking. She further testified that drinking was only a problem because Mr. J.C.W. and her mother would report her to the children’s aid society. There was no understanding or insight into the fact that, for an entire year, her hair tests showed she was in the chronic abuser category for alcohol or that her abuse of alcohol might affect her health, her ability to function or her ability to parent.

She testified that drinking was not illegal and that her rights were affected by the order of Justice Hardman. Although the workers never found any evidence of alcohol in the home, it is absolutely clear that Ms. P.D.A.T. continued to drink. [ 33 ] These factors lead the court to only one conclusion regarding assessing credibility. Where Ms. P.D.A.T.’s evidence contradicted that of the society workers or Mr. J.C.W. and his parents, the evidence of the society workers and Mr.

J.C.W. and his parents was more reliable. [ 34 ] As a result, the court accepted the society evidence regarding C.J.P.W.’s absences from school rather than the mother’s version of events. According to Ms. P.D.A.T., C.J.P.W. missed a lot of Mondays because the father overheld him on access. All other absences were due to illness or doctor’s appointments. Mr. J.C.W. did testify that there were a few occasions when he kept C.J.P.W. on a Monday because the mother asked him to do so or when he felt the mother was too intoxicated or hung over to take over the care of the child.

However, in reviewing the records for the year 2009-2010, C.J.P.W. missed 23 days of school, only 9 of which were Mondays. It is difficult to believe that C.J.P.W. missed an additional 14 days because of illness or doctor’s appointments. [ 35 ] The records also showed a number of late arrivals at school. Some of those arrivals were explained by C.J.P.W. as being due to his mother’s not getting up in time to get him to school.

Although the mother disputes these explanations, she provides no reason why C.J.P.W. would tell school personnel something that was not true. [ 36 ] In assessing the credibility of all the witnesses, I should note that I have disregarded the evidence of the mother’s mother. Her evidence was emotional, disjointed and difficult to understand. Her obvious dislike of her daughter made her evidence useless and I have not considered it. [ 37 ] However, I have considered and accepted the evidence of the society workers with respect to the issue of cooperation and compliance by Ms. P.D.A.T. with the court order.

I accept the evidence of Ms. Edminson that Ms. P.D.A.T. was difficult to work with, impossible to question or focus on the issues at hand and unwilling to work with the society. I accept Ms. Edminson’s evidence that she confronted Ms. P.D.A.T. with issues of concern very carefully and reluctantly because Ms. P.D.A.T. was quick to anger and could easily become rude and verbally abusive. Ms. P.D.A.T.’s repeated statement that she “still did not know who Gretta Hutton was” showed her inability to accept the involvement and direction of the society. It was clear that Ms. Edminson brought Ms. Hutton to Ms.

P.D.A.T.’s home and introduced her to the mother. Ms. Hutton gave evidence and explained her role in this file and still Ms. P.D.A.T. indicated she did not know who Ms. Hutton was. The court knew who Ms. Hutton was. It is difficult to understand how, after two home visits and giving evidence in this trial, the mother could still say she did not know who Ms. Hutton was. [ 38 ] Ms. P.D.A.T. has shown herself unwilling to comply with terms of a court order if she does not agree with them.

Knowing that the consumption of alcohol was absolutely prohibited, she continued to drink, even increasing her level of consumption by three times. When questioned, she argued that she had a right to drink and that it was not illegal to drink. She made it quite clear that she would assess a court order and determine its appropriateness before complying with it. Not only would she not comply with terms of a court order with which she did not agree, but she was more than willing to lie about her compliance to workers and to the court. Therefore when Ms.

P.D.A.T. says that she will comply with all terms of a court order and work co-operatively with the society, it is impossible to believe her. When she says that she is committed to not drinking, her intention may be well meaning, but, again given the history, it is impossible to believe her. [ 39 ] In coming to the conclusion that C.J.P.W.’s best interests will be met in the care of his father I have considered the following paragraphs of subsection 37(3):

1. The child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs. 2. The child’s physical, mental and emotional level of development. [ 40 ] Aside from C.J.P.W.’s attention deficit hyperactivity disorder, I heard no evidence that his level of development was anything other than that of a typical 8-year-old boy. His physical and mental needs can be equally met by both parents. I have some concerns about the mother’s meeting the emotional needs of the child. C.J.P.W. has shown himself to be very reticent when speaking with workers and even his own counsel.

Although C.J.P.W. provided explanations for his late arrival at school, the mother indicated none of them were true. C.J.P.W. advised workers that Mr. S.E. had been to his home from time to time, a fact that the mother denied right up until being cross-examined. The court cannot but wonder whether C.J.P.W. has found himself torn between telling the truth in questions put to him and protecting his mother. 5. The importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family. 6.

The child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community. [ 41 ] C.J.P.W. has a positive relationship with both parents and with his paternal grandparents. Having regard to the dislike between the mother and her mother, C.J.P.W. is unlikely to have a relationship with his maternal grandmother except and unless it is through his father. According to counsel, C.J.P.W. likes and dislikes things at both of his parents’ homes.

He clearly loves both parents and has a secure place in each family. [ 42 ] The mother argued that C.J.P.W. also has a sister A. with whom he is close. She testified that, if C.J.P.W. lives with his father, he will not see A. as often and might lose that connection. However, the mother also testified that A. lives in Angus with her grandparents. Her evidence was that A. is 16 and is “not real thrilled to see me every second weekend” and that she has her own life, friends and boyfriends and things to do.

Realistically therefore, A. sees her mother when she chooses and, if she wishes to see C.J.P.W., she can do so when he visits with his mother. It is very unlikely, given the mother’s evidence, that A. would be attending at her mother’s home more than every second weekend in any event. 7. The importance of continuity in the child’s care and possible effect on the child of disruption of that continuity. [ 43 ] This factor is the strongest one in the mother’s favour. C.J.P.W. has lived with the mother all his life. However, his life has not been stable in his mother’s care.

She has moved frequently and she has maintained a relationship with a person who was an alcoholic and abusive. [ 44 ] Her moves are concerning given the material she filed in her plan of care and her sworn affidavit relied upon on the motion for temporary care. When these proceedings started, the mother was living in Kitchener. She has previously lived in Owen Sound with the child and had come to Kitchener to attend school. In her plan of care dated 10 July 2009, Ms. P.D.A.T. indicated that C.J.P.W. was enrolled in school and that she was able to access supports for C.J.P.W. in Kitchener, including Dr.

Mantynen who diagnosed C.J.P.W. with attention deficit hyperactivity disorder and monitored his medications accordingly. [ 45 ] She indicated in her plan that it was in C.J.P.W.’s best interests to remain in her care because he had a stable home, friends and acquaintances in the neighbourhood and at his school and had developed a relationship with his teachers. She made no mention in her plan of care that she hoped or planned to move back to the Owen Sound area once her education was completed. [ 46 ] Despite the plan and emphasis on stability, Ms. P.D.A.T. moved C.J.P.W. to Thornbury in October 2009.

In her affidavit sworn on 6 August 2010, Ms. P.D.A.T. deposed that the move to Thornbury made his relationship with A. better. She went on to say that he was thriving at Beaver Valley school, his teachers took an interest in him and his best friend lived across the street. In paragraph 62 of her affidavit, the mother deposed that C.J.P.W. liked where he was living and did not want to move.

Obviously, she meant that he did not want to move to his father’s home, because within less than 2 months, the mother moved again, to Meaford. [ 47 ] Her evidence was that she could not afford the rent on the home in which she was living in Thornbury and needed subsidized housing. Apparently, the only housing available was in Meaford. She testified that she informed housing that she needed to move away from Thornbury because Mr. S.E. was being released from jail and she did not want him to know where she was. Surprisingly the place to which she moved was approximately 550 metres from the home of Mr.

S.E.’s mother and his last known address. Despite her evidence that she wants nothing to do with Mr. S.E., he has been calling her, but she saw no need to change her number. She felt that this would be an inconvenience to her. [ 48 ] Mr. J.C.W. has lived in his parents’ home for eight years. He plans to continue to reside there with C.J.P.W. and is willing to have a term of supervision that requires him to do so. He has never been under a prohibition to drink and yet his hair test showed below the level of detection.

He admitted to having the occasional drink. [ 49 ] Concerns were raised by the mother that C.J.P.W. shares a bedroom with his father and often sleeps in the bed with his father. This does not cause the court concern. Further, it is the plan of Mr. J.C.W. and his parents to build a bedroom for the father in the basement and, when that is completed, C.J.P.W. will have his own room. Another concern was that C.J.P.W. will be residing in a rural area and will not have children in the neighbourhood. Many children are raised in rural neighbourhoods and participate in activities that include other children.

Living in a rural area is not a protection concern. Further from the evidence, it is clear that C.J.P.W. and his father are engaged in many outdoor recreational activities that will continue when C.J.P.W. is not in school. [ 50 ] The father’s plan has stability and consistency. The mother’s plans have changed a number of times resulting in C.J.P.W.’s being uprooted and moved from school to school and town to town. The nomadic lifestyle to which C.J.P.W. has been exposed in his mother’s care detracts enormously from the fact that he has lived with her since birth.

8. The merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child’s remaining with or returning to a parent. [ 51 ] In assessing the merits of the plans proposed by the parents, the court must consider whether the parents will comply with terms of supervision and co-operate and work with the society. I have no faith that the mother’s plan in terms of residence, school for C.J.P.W. etc. is a long-term one. I do have faith that the father’s plan is long-term.

I am convinced that the mother is ungovernable and willing only to follow the terms of supervision to which she agrees and that she believes are fair to her. She has shown repeatedly that she will breach any part of a court order if she thinks it is “unfair” to her. She showed no insight into why the court might feel a specific term is necessary or that she might suffer consequences for non-compliance. [ 52 ] Mr. Wintar argued that the Act is not a punitive one and that placement should not be made on the basis of punishing the mother for non-compliance. He is correct in that statement.

But the Act is a preventive one. Terms of supervision are made to ensure that the child is protected in his parent’s care. If the court cannot be assured that those terms will be complied with, the court cannot be assured that the child will be protected. It is absolutely necessary that a parent co-operate and work with the society under a supervision order. In this case, although there were times that Ms. P.D.A.T. was able to speak in a courteous way to a worker, overall her co- operation was limited. For example, she would not sign consents unless signed by a worker first, claiming that changes could be made.

Since the worker would be taking the consent away with her in any event, changes could be made after both had signed. In my view, any change to a document would have had to be initialled and therefore, it made no difference which party signed first. This was just another example of the mother asserting her “rights” rather than just getting on with what had to be done. 9. The child’s views and wishes, if they can be reasonably ascertained. [ 53 ] In this case, C.J.P.W. has been remarkably silent about what he wanted following this trial.

He advised his counsel that there were things that he liked about living with his mother and with his father. His views therefore can be given little weight. 11. The risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent. [ 54 ] Having regard to the evidence and on the basis of the close loving relationship C.J.P.W. has with both parents, I do not believe he will suffer a risk of harm if placed in his father’s care.

However, on the basis of the mother’s actions during the period of time that this proceedings have been underway, in destabilizing his residences, changing schools, not ensuring attendance at school and continuing to drink alcohol at a level that is potentially dangerous to herself and presents a potential for C.J.P.W. to come to harm, I believe C.J.P.W. is at far greater risk in his mother’s care than in his father’s. 13. Any other relevant circumstance. [ 55 ] As indicated earlier, the mother has shown herself to be ungovernable by the society and by the court.

Supervision is necessary and a supervision order can only work if a parent is willing to work with the society and comply with the terms of supervision. I am not satisfied on the basis of the mother’s actions during the period of interim supervision and on the basis of her attitude regarding which terms are fair that she will comply with an order. [ 56 ] For all of these reasons, I am satisfied that C.J.P.W.’s protection and best interests require that he be placed with his father under terms of supervision for a period of nine months. [ 57 ] Therefore, an order will issue as follows: (

i) The child C.J.P.W., born on […] August 2002, shall be placed in the care of his father, Mr. J.C.W., subject to terms of supervision (

a) to (

p) set out in the amended protection application, pages 66 and 67 of the trial record. (ii) Additional terms (

q) and (

r) will be included in the terms of supervision: (

q) Mr. J.C.W. and C.J.P.W. will reside in the home of the father’s parents Mr. L.W. and Mrs. B.W. (

r) Neither parent nor the grandparents will tell C.J.P.W. about his paternity until the parents and the society have discussed the appropriate time and manner in which to advise C.J.P.W. (iii) The respondent mother shall have access to the child in accordance with paragraph 2 of the amended application, page 67 of the trial record. In the event that the mother’s access is not supervised by the society, her access shall include every alternate weekend from Friday at 5 p.m. to Sunday at 4 p.m.

The parents shall meet at the Tim Horton’s in Arthur to exchange the child. (iv) The parties may make written submissions on the issue of costs, limited to five pages. The respondent father’s submissions are to be served and filed on or before 21 January 2011. The respondent mother’s submissions and society’s submissions are to be served and filed on or before 11 February 2011. Any reply submissions are to be served and filed on or before 25 February 2011.

If the Office of the Children’s Lawyer intends to make submissions on the issue of costs, his submissions are to be served and filed on or before 11 February 2011.