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 Information

Ontario Court of Justice

Court File No.: Sault Ste. Marie 236/13

Date: 2014-01-10

Between:

Children's Aid Society of Algoma, Applicant

— AND —

S.M.M. and J.M., Respondents

Before: Justice John Kukurin

Heard on: January 9, 2014

Reasons for Judgment released on: January 10, 2014

Counsel

Anthony Marrato — counsel for the applicant society

Heather-Ann Mendes — counsel for the respondent mother S.M.M.

Romuald Kwolek — counsel for the respondent father J.M.

Judgment

KUKURIN J.

[1] Three motions (at Tabs 2, 7 and 11) were before the court for argument this day by the society, the mother and the father respectively, each of whom was seeking an order for temporary care and custody of the child A. who is three and one-half months old. Secondary claims in these motions were for parental access.

[2] The child was apprehended at birth. At that time, the mother had just turned 16 years old. She was made a Crown ward in October 2011, remains a Crown ward, and resides in a society foster home placement. The uncontradicted evidence is that the child could not reside with the mother in the mother's foster home if the child was returned to the temporary care and custody of the mother. This makes the mother's claim for temporary care and custody somewhat academic. She would need to present a viable plan for residence elsewhere. In fact, she requested an adjournment of the hearing of these motions to give her time to do so. I declined this adjournment request not only because the mother doesn't yet actually have a plan, but also because the father does have a plan, and deserves the chance to argue his motion claim at the earliest opportunity. As an additional reason, Rule 33 prescribes 35 days from start of a case for completion of a temporary care and custody hearing. This case started over 110 days ago. Despite all of this, I indicated that any order made would continue to be "without prejudice" in expectation that the temporary care and custody issue could be fully argued when the mother had all of her evidence before the court.

[3] A "without prejudice" order was made for temporary care and custody to the society for provisions for interim maternal and paternal access, on the first day that this child protection case was before the court. That order has remained in force to date.

[4] The onus falls on the society seeking an order for temporary care and custody to satisfy the court that both parts of a two-part test contained in section 51(3) of the Child and Family Services Act (the "Act") has been met. If this onus is not met, the Act requires the child to be returned to whoever had charge of the child immediately prior to the society's apprehension. In the case of this newborn child, both mother and father had charge immediately prior to apprehension.

[5] I am satisfied that the first part of the test has been met. There was at the time of the child's birth, no assurance that the mother wouldn't simply take the child with her when she left the hospital. Given the historical evidence filed by the society about the mother, much of it uncontradicted, and the apparent prohibition about having this child residing in the mother's foster home, I have more than reasonable grounds to believe in the existence of risk of likely harm if the child was to be in the mother's care. The first part of the test does not have a very high threshold. Moreover, the Act does not seem to require the satisfaction of this first part of the test with respect to both mother and father. Either will do. However, the father's circumstances at birth also supported reasonable grounds for belief of likely harm.

[6] The second part of the test is another matter. This again requires reasonable grounds of the court. However, those are reasonable grounds to believe that the child cannot be adequately protected by a court order. Unspecified but understood in the wording of section 51(3) are the further words:

… if the child is placed with/returned to the person who had charge prior to the society's intervention.

[7] This requires the court to consider placement of the child with whoever had charge prior to its intervention. For this child, the persons in charge would have been her biological parents. Moreover, it necessarily requires a prospective assessment of adequacy of protection. Put another way, what is the plan for the care of the child from her birth forward?

[8] Placement with the father is the only plan being advanced at the moment. It is quite appropriate to consider past factual events in making decisions about future care of the child. In this case, the society argues that the father's age and immaturity, his inexperience caring for children, especially infants, his use of drugs, his use of alcohol (while underage) and his lack of a concrete plan with details of childcare all militate against his having care and custody pending final resolution of this child protection case.

[9] In addition to this, the society argues that there is no evidence that he is financially able to provide what the child needs.

[10] Insofar as age is concerned, the father will be age 18 on March 4, 2014, in less than two months. In Ontario this is the age of majority when he becomes an adult having all the rights and responsibilities accorded to adults in our society. Age, by itself, does not disqualify a parent from caring for his or her child, especially when that age is so close to adulthood.

[11] As for maturity, I disagree with the society's assessment of the father. What he has done since he became aware he would be a father supports an inference of increased maturity and growth of a healthy sense of responsibility. He continues to reside in a stable home with his mother and sister. He remains a student pursuing academic qualifications. His attendance and participation in his program is quite impressive. He has acquired and/or strengthened his facility in dealing with children, including his own infant child. He is cooperative with his teacher, with society personnel and willingly takes direction and advice. The main criticism of his childcare appears to be that he was overly affectionate to the point of interrupting the child's nap time (which he has since tempered). The aggregate of the foregoing well outweigh his decision to allow the mother to stay overnight in his residence on one occasion, without his own mother's prior knowledge or consent, particularly as nothing of consequence is reported to have taken place on this occasion.

[12] This inference is further strengthened in the areas of drug use and alcohol use. Marijuana is the only drug which the evidence indicates that the father has ever used. There is no evidence of the amount of his consumption, or of the history of his usage. There is evidence, however, that he stopped using marijuana three months ago – evidence that has not been contradicted. The mother confirmed this to be so.

[13] As for alcohol, there is evidence of drinking by both mother and father on one occasion only (October 31/13), on their own admission to the society. However, the details of this occasion are scanty. This took place with friends elsewhere than at the father's home. There was no indication of intoxication or of drinking to excess. There was no indication of what they drank. The child was not with them at the time. Moreover, they both admitted that alcohol was bad for their relationship and they planned to quit drinking. There is no evidence of excessive drinking in the paternal grandmother's home by the father or anyone else.

[14] Inexperience for caring for infants is likely to afflict almost any first time parent. No one would be able to care for his or her child if this was a bar to parental care and custody. In the case of the father, however, there is a three month history of interaction with the child on a daily basis at the present time. The evidence of such parent-child contact is very positive in the school setting. There is no evidence that either his Saturday or Sunday access visits at his home are problematic. The same is true for his supervised access at the society's access centre. He has had time to learn how to attend to his infant child's needs. In addition, he reported to have interacted positively and helpfully with other children at the school. He has been a babysitter for a younger sister and a step-brother in the past.

[15] As for financial inability to provide for the child's needs, the evidence of the society is speculative at best. The fact is that he provides for the child's needs for six hours every Saturday and every Sunday at his home. His home is with his mother who is employed full-time, from which I infer that she has the financial means to run her household. It would be strange indeed if the addition of one infant child to this household would financially overwhelm the family to the point that the child would be in need. The father has gone to Ontario Works and claims he has been assured he would receive social assistance if the child was placed in his care. In addition, he would qualify for the universal child tax benefit, a fact of which I can take judicial notice. This argument by the society has no traction in this case.

[16] The father does in fact have a concrete plan for temporary care and custody. It is for the child to reside in his family home with himself as the primary child caregiver. He plans to continue the present arrangements of having the child at the school that both he and the mother attend, an arrangement that has been sanctioned by the society and has been in place for some time. His weekend day access would no longer be "access", but would involve the entirety of both days including overnights, a significant jump from the six hours per day he now has. However, while he would be the primary caregiver at such times, the paternal grandmother who works week days only would be present to assist in attending to any needs of the child, including babysitting when needed.

[17] The main concern of the society is that he would be "unsupervised" while he had care of the child for approximately five or six hours each weekday either before and after his afternoon classes, or after his morning classes, until his mother returned home from her work. While I might have shared this concern three months ago, I discount it almost entirely today. Enough time has passed for this concern to abate. The child is almost four months old and, medically speaking, is doing fine. The father has several months of childcare under his belt and is also doing fine. If he can attend to the child's needs for six hours on Saturday and Sunday, he should be able to expand this to weekdays. This is not a plan that leaves him alone with the child for even eight hours on any given day.

[18] I would have no objection to the attendance of a society worker with the father at any time at his home or elsewhere to observe his care of the child. This would technically not be access supervision but would certainly fall within the ambit of a society supervision order.

[19] The father's plan involves the maternal grandmother as a key person in the childcare process. Her presence in the child's environment, and her guidance and direction to the father, to say nothing of her own "hands-on" care to a granddaughter represents a big plus in the father's quest for care and custody. The departure of the father's older sister from the family home removed any impediment that she may have represented to the child's residence with the father.

[20] For these reasons, I do not agree that the society has met the second branch of the two-part test in section 51(3). The child should be returned to a parent. At this point, the father is that parent.

[21] The order for temporary care and custody to the father is pursuant to paragraph (b) of section 51(2) of the Act. This requires a supervision order whereby the society will have a supervisory role over this placement. How it carries out its supervisory responsibilities it can decide itself based on circumstances at any given time. However, the court order that would adequately protect the child in the temporary care and custody of the father will contain conditions designed specifically to alleviate the risk of harm to the child's health or safety.

[22] I would, of course, prefer the society, the father and the mother to arrive at mutually agreeable conditions of an interim supervision order. Conditions that I feel would be necessary include:

a) residency of the father and child in the paternal grandmother's home;

b) continued faithful attendance of the father and child at the present school program;

c) father not to possess or consume alcohol and non-prescribed drugs, particularly marijuana;

d) father not to permit mother to remain in the father's home beyond 10 p.m. except with prior approval of the society;

e) father not to permit the mother contact with the child except as provided in a maternal access order or with consent of the society.

[23] As for maternal access, I do not intend to change the existing order. The mother will have her opportunity to argue for temporary care and custody in favour and/or for a different order for interim maternal access than exists at present. In the meantime, she apparently sees quite a bit of the child in a parent-child context at the school, at the home of the father on weekends, and at the society's supervised access centre. There is no reason why her context should be reduced as a result of temporary care and custody being entrusted to the father. She and he should not be present with the child without a suitable adult person also present. On the evidence, I see no present impediment to the child having blocks of time with the child in her (the mother's) foster home, subject to the consent of and in the presence of (at least one of) these foster parents. However, maternal access can await the hearing of her motion.

[24] These Reasons are not an order. I expect the parties to be guided by these Reasons in arriving at mutually acceptable terms of a temporary care and custody order which, as I have indicated, should remain a "without prejudice" order, both as to paternal care and custody as well as to maternal access. Failing such agreement, I will entertain brief argument on any terms in dispute and make an order that I consider appropriate.

Released: January 10, 2014

Justice John Kukurin, Ontario Court of Justice

Footnotes

[1] The evidence is silent as to whether the mother could exercise access to her child at the mother's foster home.

[2] S. 51(3) The court shall not make an order under clause (2)(c) or (d) unless the court is satisfied that there are reasonable grounds to believe that there is a risk that the child is likely to suffer harm and that the child cannot be protected adequately by an order under clause (2)(a) or (b).

[3] If this is incorrect, and only the mother had the charge of the child immediately before the society's intervention, then temporary care and custody to the father would require both parts of the section 51(3) test to be met.