A child protection society brought a motion for summary judgment seeking a finding that a child was in need of protection under section 37(2)(b)(i) of the Child and Family Services Act on grounds of risk of physical harm.
The child had been in the father's sole custody and care for approximately four months before the application was commenced.
The mother had a history of substance abuse, medical issues, and domestic violence incidents.
The court found that while the mother presented a significant risk of harm, the statutory language of section 37(2)(b)(i) requires that the risk be caused by or result from the acts or omissions of "the person having charge of the child." The court determined that the father, as the sole custodian, was the person having charge, and that the mother's supervised access did not constitute having charge.
The court found some evidence of the father's failure to protect the child from domestic violence exposure and confusion regarding access restrictions, sufficient to support a finding under section 37(2)(b)(i).
The court granted a section 57.1 sole custody order to the father with supervised maternal access.