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.

45.— (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.

45.— (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

Date: 2014-01-21

Court File No.: Belleville 192/07

Parties

Between:

Highland Shores Children's Aid Applicant

— AND —

M.B. (mother)

and

T.S. (father)

And

A. and R.O. (paternal grandparents)

Respondents

Before: Justice W. Malcolm

Heard on: November 29, 2013, additional evidence provided on December 4, 2013 and January 14, 2014

Reasons for Decision on Motion released on: January 21, 2014

Counsel

• Cynthia Law — counsel for the Applicant Society
• Isak Feuer — counsel for the Respondent, M.B. (not appearing)
• T.S. (not appearing) — on his own behalf
• A. and R.O. — on their own behalf

Decision

Malcolm J.:

Relief Requested

1This is a motion for access to R.T.B.G. (hereinafter "the child") who was born on […], 2013. His mother, M.B. (hereinafter "the mother"), is requesting access to occur at the Quinte Detention Centre where she is awaiting trial. The child's father, T.S. (hereinafter "the father") has filed no court documents and has been noted in default.

2The paternal grandparents are A. and R.O. The child was placed with them shortly after his birth.

Overview

3At the time of the child's birth the mother was facing charges of armed robbery. She was detained at the Quinte Detention Centre ("QDC"), located in Napanee, Ontario. The father is the mother's co-accused and he is also detained at QDC. QDC is a maximum security facility.

4It is alleged that the mother and father, in June 2013, were involved in an armed robbery in Quinte West; were arrested at the end of June and then detained at QDC. They remain in custody today. No trials have been scheduled at this time to my knowledge.

5After his arrest in June 2013, the father advised the Children's Aid Society Worker, Mr. Ian Dawe, that he would likely be detained because he had a criminal record for breach of Court Orders. He did deny his responsibility for the armed robbery and was seeking a trial to prove his innocence. He admitted to selling drugs in order to support himself and his partner.

6He described the mother, his partner, as being a drug junkie who used marijuana and cocaine.

7The mother also spoke with the Children's Aid Society Worker. She also denied her involvement in the armed robbery.

8The Children's Aid Society, QDC, the parents and A.O. did pre-planning for the birth of the child. The child was to be placed with the paternal grandmother, A.O., in Renfrew County.

9The Children's Aid Society supported the maternal grandmother, Ms. G.'s, attendance in the delivery room. Unfortunately, QDC did not consent to Ms. G.'s presence in the delivery room because of the mother's behaviour in the facility and the Society's historical concerns of Ms. G. The particulars for the exclusion in the delivery room are unknown to me.

10Due to the exclusion of Ms. G. from the delivery room, the Society was concerned that the mother would not support the voluntary placement of the child with A.O. The Society was familiar with the mother due to past involvement with her other children. Because of the late notice they received from QDC they did not have time to meet with the mother. Instead they decided to conduct a "technical apprehension" of the baby at the hospital.

11On […], 2013 the child was delivered by caesarian section at the Belleville Hospital. The society worker attended the hospital, and after the child was delivered, spoke with the mother. He advised her that the Society would be seeking an Order placing the child with A.O.

12The mother had access with the child, as did A.O., while the child was in the hospital. As of August 11, 2013 A.O. was able to stay overnight with the child in the hospital.

13The mother returned to QDC on Monday August 12, 2013 and she has had no access with her child since that date, other than the photographs sent to her by A.O.

14Tests on the child's meconium revealed that the mother, during her pregnancy, had been using cannabinoids, Opioids and a trace amount of morphine. I am not aware whether the mother was provided drugs during the delivery which could have affected the drug testing.

15The mother has three older children, none of whom were in her care when this Application was commenced. The Children's Aid Society was involved with the mother because of her drug use and that of her then partner. The Society also had concerns of domestic violence between the parents and neglect of the children by the mother. Her children are J. age 12, H. age 9, and N. age 6. J. is in the care of his biological father and H. and N. are in the care of their paternal grandparents. When the children were placed in their respective placements the mother was not participating in Court proceedings, nor exercising any access with the children.

16In her response material, the mother does admit that she used marijuana on a daily basis during her pregnancy, but denies most of the allegations of the Society as to why her three children were subject to child protection proceedings and why they are not in her care. She does indicate that she had an emotional and mental breakdown after the children were removed from her care and she returned to drugs and alcohol. She also agreed that she stopped visiting the children.

Position of the Mother on this Motion

17This Motion before the Court is brought by the mother because she wants A.O. or the Children's Aid Society to bring her newborn son to QDC twice per month to visit with her.

18Any access at QDC would occur through a glass window. The mother indicates that her ability to see her child and her child seeing her will help her with her bonding with the child.

Position of the Society

19The Children's Aid Society and the grandmother both oppose the Motion.

20QDC is a three hour drive from the grandmother's home in Renfrew County. The child has been diagnosed with reflux and is on medication. When he travels in the car he has to have someone watching him in case he starts to choke. He also suffers from car sickness and cries when he is placed in his car seat.

Subsequent Information Provided to the Court

21The child had an appointment at the Children's Hospital of Eastern Ontario ("CHEO") in Ottawa in December. Because of the child's exposure to drugs in vitro and his reflux disorder, and a suspected developmental delay, the grandmother sought a specialized assessment.

22After this motion was argued on November 29, 2013, I advised counsel that I would allow the further filing of evidence concerning the child's CHEO appointment and whether skype or video conferencing was available at QDC.

23On December 4, 2013 counsel filed a memorandum indicating that neither skype nor video conferencing would be available at QDC for purposes of an access visit. The Acting Superintendent did indicate that the mother would be able to receive a DVD of the child and be able to review it.

24On December 13, 2013 the assistant Crown Attorney advised counsel for the Society, in writing, that the mother was wanted on warrants in Northern Ontario and Quebec as well as the outstanding charges from Quinte West.

25On January 14, 2014 counsel for the Society and the mother have advised me by email that Dr. Gupta, the specialist at CHEO, will be preparing a report shortly. Counsel indicated that the report will indicate that the child is diagnosed with reflux and is currently receiving mediation for the problem. It is recommended that he not travel long distances in a car because the reflux may cause him to choke. It is also suggested that the reflux may improve when the child is over a year in age.

Case Law

26Counsel for the Society and the mother indicated that there was no case law on point concerning a parent who is incarcerated and seeks access to a child.

27However in British Columbia (Director of Child, Family and Community Service) v. J.M., 2012 BCPC 333, Judge R.S. Woods ruled on the issue of a father in jail seeking access to a child. The child at the time of the decision was almost 2 years old. The father, a first nation's person, was in jail facing a murder charge. He had been diagnosed with schizophrenia. Judge Woods ruled in paragraphs 67 and 68 that because of all of the uncertainty he declined to make an order of access. He did indicate that the father could bring an application once the criminal charges had been "fully and finally disposed of".

28In Children's Aid Society of Haldimand Norfolk v. L.P., [2011] O.J. No. 3529, Justice A. Ramsay dismissed a mother's motion for access to a child until her release date from jail. (paragraph 21)

29Similarly in Children's Aid Society of London and Middlesex v. D.C., [2000] O.J. No. 4686 at paragraph 24 per G. Campbell J., the court ruled that no access will be granted between a father in prison and his two children until he is released from jail and makes a proper access application.

30There are similarities in the above cases and the case at hand. The mother here is detained facing serious criminal charges; wanted on outstanding warrants; and there is much uncertainty as to the eventual outcome of the criminal charges.

31Several cases have allowed access between a child and an incarcerated parent but only limited access such as telephone contact. T.P.M. v. M.C., [2009] N.B.J. No. 314 per B.L. Baird J. at paragraphs 25 and 53. Also in Newfoundland and Labrador (Manager of Child, Youth and Family Services, Zone A) v. M.G., [2013] N.J. No. 76 per R.A. Fowler J. at paragraph 55.

32In case at hand the child is only an infant and telephone access would not be appropriate.

33The only case law provided to the Court by counsel was the Supreme Court decision of Syl Apps Secure Treatment Centre v. Douglas Baptiste, 2007 SCC 38. This is a civil action brought by parents against defendants who were involved in the treatment and care of their child who was made a crown ward. The parents' position was that their child had not returned to their care because the defendants treated the child as if her parents had physically and sexually abused her. They alleged that the actions of the defendants deprived them of a relationship with their child.

34The parents argued that a relationship of proximity should be found based on the interpretation of the Child and Family Services Act, R.S.O. 1990, c. C.11. In particular the parents argued that the interpretation section of the Act and section 37(3) subsections 5-7 include recognition of the importance of the family and the integrity of the family unit. (paragraph 37)

35The only reference to access in the Syl Apps case is the background which indicated that any access between the child, who was made a crown ward, and her family members would be at her discretion.

36The case did contain an interesting analysis of the balancing act between the best interests of a child and parental rights in paragraphs 43, 44 and 45. In particular the Court reviewed the case law which confirms that "pursuing and protecting the best interests of the child must take precedence over the wishes of a parent." (paragraph 45)

Analysis

37This case is being heard under section 51(5) the Child and Family Services Act, R.S.O. 1990 c.C.11 (the Act). The mother is asking for temporary access. It is clear that I must consider the best interests of the child in making any order of access. Further any temporary access order may contain any terms and conditions as the court considers appropriate.

38In reviewing Section 37(3) of the Act I must consider many factors including the child's development and the importance of a positive relationship with his parent with the child's physical, mental and emotional needs.

39The child has reflux disorder and a tendency to car sickness. QDC is three hours from the child's home. The proposed visit would occur in the jail where the mother and her child would be in separate rooms divided by a glass partition. The mother would not be able to hold or interact with her child, other than to see him through the glass.

40This would not foster a positive relationship between the child and his mother. This may cause discomfort to the child. If the grandmother is unable to travel with another person the long car ride could put the child's health at risk because of the child's reflux problem.

41The mother and father chose the paternal grandmother as a kin placement for the child, knowing that this placement was three hours away from QDC. The placement is four hours away from the mother's previous home in Trenton.

42Given the mother's previous lifestyle choices, her incarceration and her decision to consent to the placement with A.O. I do not consider her need to bond with her child as my paramount concern.

43The most important considerations at this stage are the child's physical, mental and emotional needs. The child's needs will not be addressed by travelling to the QDC twice a month and being shown to his mother through a glass window.

44This is not a child who had a relationship with his mother. This is a vulnerable infant.

45It is not in the child's best interests to have access with his mother or father while the parents are incarcerated.

ORDER

46The motion for temporary access between the mother and her child at QDC is dismissed.

47The mother may receive cards, photos or videos of the child sent to her by the Society or the grandmother, in accordance with the policy of QDC.

48The mother's release from custody after the resolution of her criminal charges may be a material change in circumstances and she may bring a motion for access at that time.

49There shall be no Order as to costs.

Released: January 21, 2014

Signed: Justice W. Malcolm

Post-Script

At the Case Conference held on January 21, 2014 the mother was present in the Courtroom as counsel had arranged for a Judge's Order to have her transported to the Courthouse from QDC. The paternal grandmother had made arrangements through the Society to travel to the Courthouse by train and during the morning break, and the Case Conference, the mother was able to see her child, who was sitting on the lap of the Society Worker, very close to the mother.

When the Conference was complete and the mother was leaving the Courtroom, she was allowed the opportunity to kiss her child goodbye.

The Society had made these arrangements with the paternal grandmother and the mother without a Court Order.

January 24, 2014

Signed: Justice W. Malcolm