Children's Aid Society of the Districts of Sudbury and Manitoulin v. A.T., 2013 ONCJ 669

WARNING The court hearing this matter directs that the following notice 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 . . . 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) or 76(11) (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. COURT FILE No.: Sudbury C-0073-13 DATE: 2013·09·26 Citation: Children's Aid Society of the Districts of Sudbury and Manitoulin v. A.T. , 2013 ONCJ 669 ONTARIO COURT OF JUSTICE BETWEEN: THE CHILDREN’S AID SOCIETY OF THE DISTRICTS OF SUDBURY AND MANITOULIN “Applicant” — AND — A.T.

AND R.B. “Respondents” Before Justice A. Guay Heard on September 10, 2013 Reasons for Judgment released on September 26, 2013 Robin L. Saari ................................................................................................... for the applicant(

s) Darren L.M. Berlinguette ............................................................................. for the respondent A.T. Gerald Brouillette ........................................................................................ for the respondent R.B.

GUAY J.: [ 1 ] This motion was heard on September 10, 2013. The Society sought a “with prejudice”

section 51 order under the Child and Family Services Act placing the child N.B., born on […], 2010 in the interim care of the Society. The without prejudice interim care order in this matter was made on February 4, 2013. [ 2 ] The respondent mother seeks the return of her daughter N.B. to her care and, in the alternative, is requesting that she be placed in the interim care of her mother, J.N.. The respondent father asks that N.B. be placed in the care of him and his mother.

The child’s Band, the A[…] First Nation, formerly known as Whitefish Lake First Nation, favors the interim placement of N.B. with the father’s mother, M.C.. As of August 18, 2013, N.B. had been in care for approximately 554 days, well over the statutory limit permitted under

section 70 of the Child and Family Services Act . [ 3 ] A review of the affidavit material filed in this matter establishes that the society’s intervention was required to protect N.B. when the temporary agreement which had been in effect for a succession of three-month periods expired in February 2013. The respondent parents’ relationship was highly conflicted and they proved themselves unable to meet their daughter’s basic needs. They also faced a number of personal and health issues which impacted on their ability to parent their daughter.

These issues were either not addressed or they delayed in addressing them. Both respondents are avowedly morbidly obese. This problem in particular affects their ability to physically manage their daughter who is now three years old. [ 4 ] While the respondent father has not done very much to address his personal and parenting issues, he has placed himself on a list for gastric bypass surgery. This should eventually assist him in being physically able to parent his daughter.

The respondent mother, in turn, has done better in responding to the Society’s concerns, completing the Triple P Parenting Program and embarking on counseling at the Sudbury Counseling Center to address her personal issues. She has suffered from depression and anxiety problems but she is finally addressing those problems, including her sleep apnea. These problems are undoubtedly a factor in the neglectful parenting of her daughter which has caused the Society concern. Her participation in these services and programs has been beneficial to her and has improved her ability to parent her daughter.

This, I believe, is recognized by the Society and its workers. [ 5 ] While the mother’s access to N.B. was initially problematic, that situation has now righted itself. The respondent mother continues to see N.B. by herself for two periods of 2.5 hours each week in the context of the Society’s Clinically Managed Access Program. In addition to this access, the respondent mother freely accesses N.B. at her mother’s home on Saturday and Sunday every second weekend. By all accounts, her visits with N.B. have gone well and no parenting issues have arisen in the course of these visits.

While the mother’s obesity issue has affected her ability to parent N.B., she too is on the list to receive gastric bypass surgery. As in the case of the respondent father, such surgery is likely to greatly assist her in being able to physically parent N.B.. [ 6 ] The respondent father’s access takes place twice a week at the Society’s offices, in the company of his mother, M.C.. Unfortunately, this access is fraught with bickering between the father and his mother and appears to pose some risk of emotional harm to N.B.. [ 7 ] The father’s mother indicated early on that she was prepared to parent N.B..

A home assessment carried out by the society concluded, however, that placement with the respondent father’s mother would not be in N.B.’s best interests. While I will not enter into the Society’s reasons for coming to its conclusion in this respect, its concerns do not seem unwarranted. [ 8 ] The Society has been informed that the maternal grandmother, J.N., would like to be considered as a placement for N.B..

Despite not having carried out a home assessment on her home, the Society has come to the conclusion that it would not be in N.B.’s best interests to place her in the care of her maternal grandmother. [ 9 ] If there is a flaw in the Society’s approach to the interim placement of N.B., it is with respect to its conclusions about a placement with J.N.. J.N., the available evidence indicates, has had a lot of experience in raising and dealing with children. She seems, in fact, to have made a career of assisting children. Not only has she raised her own children but she has helped to raise some of her grandchildren.

In addition, she has coached a basketball team, led a brownie pack and a Girl Guide troop and has contributed to a children’s breakfast program at one of the local schools. [ 10 ] The Society’s concern about the placement of N.B. with her maternal grandmother is that there was an allegation that her common-law partner of many years sexually interfered with her daughter, the respondent mother, many years ago. The allegations with respect to her common-law partner remain just that and were apparently recanted long ago by her daughter. No charges were ever brought against this gentleman.

Given the time which has elapsed since the allegations were made and the fact that a number of other children have passed through the maternal grandmother’s home since then, one wonders at the merits of the Society’s concern about the maternal grandmother’s partner. It must be noted here that the Society has had enough confidence in J.N. to allow her to have unsupervised access to her granddaughter N.B. every second weekend for the whole day on Saturday and on Sunday. The risk identified by the Society in this respect therefore seems minimal at best.

I think it is incumbent on the Society at this point in time to carry out an objective and unbiased home assessment on the home of the maternal grandmother. I will order that the Society do so as soon as practicable. While we do not have the benefit such an assessment at this time, I believe that the court have enough information to make the interim order that is going to be made. [ 11 ] Given the history of this matter, it seems to me that while there may be a minimal risk to placing N.B. in her maternal grandmother’s home, that risk is clearly a manageable one. That is the test under

section 51 of the Child and Family Services Act. That

section does not insist that there be no risk of harm before a child is either returned to her parents or place with an extended family member. It simply requires that the risk be one which is manageable under reasonable conditions. I find that this is the case in the present matter. I can see no reason why N.B. should not be placed in the interim care of her maternal grandmother under the supervision of the Society. In addition to being in N.B.’s best interests, such a placement would permit N.B.’s mother to have plenty of access to her and

this is in N.B.’ best interests.

Since there is an indication that the maternal grandmother and the paternal grandmother get along well, such a placement is also likely to foster the access of the respondent father and his mother to N.B. or, at worst, not inhibit it. [ 12 ] The conditions of supervision should be those permitting the Society free access to the maternal grandmother’s home, cooperation by her with the Society’s workers, providing such consents as are required by the Society to ensure that N.B. is receiving the medical and other services she requires and cooperating with the directives of the Society’s workers with respect to access by extended family members and any other matters touching on Nivea’s care, safety and well-being.

The Society may approach me subsequently on notice to the other parties if it wishes to add other conditions of supervision to the present order and if it wishes to add conditions to the supervision of access by the respondent parents. [ 13 ] Having noted the above and, in particular, the quarrelsome relationship between the respondent father and his mother, it would appear that their access to N.B. should continue to be supervised. I do not see how the risk of emotional harm to Nivea can be limited if the access of these two parties remains combined access.

Given the respondent father’s aggressive past, I think that it would add to a solution of the access problem to split his access from that of his mother’s. The respondent father will have to do more to address his issues before he is allowed to enjoy unsupervised access to his daughter. As for the paternal grandmother, M.C., her access should remain at the discretion of the Society and, now that N.B. is going to be placed into the interim care of her maternal grandmother, her access should also be at the discretion of the maternal grandmother.

N.B. seems happy to see both her father and her paternal grandmother; there is no reason why each of them should not continue to have access to her separately. [ 14 ] The respondent mother’s access to Nivea should remain unchanged as it has worked in N.B.’s best interests. It has also permitted the respondent mother to have quality access with N.B.. [ 15 ] This matter is remitted to the trial coordinator to set a settlement conference continuation date before myself on notice to the applicant Society, the respondents and their counsel as well as Chief Miller of the A[…] First Nation.

Released: September 26, 2013 Signed: “Justice A. Guay”