ONTARIO COURT OF JUSTICE DATE: 2021 11 01 COURT FILE No.: Toronto C41811/21
BETWEEN:
CHILDREN’S AID SOCIETY OF TORONTO Applicant,
— AND —
T.N. (Father) and L.N. (Mother) Respondents
Before: Justice Robert J. Spence
Heard by Zoom on: October 28, 2021 Reasons released on: November 1, 2021
Counsel: Ms. Beata Lis…………………………………counsel for the applicant society Ms. Lauren Israel……………………………..counsel for respondent father Ms. Oyewande Ayoola…………………..…..counsel for respondent mother
R.J. SPENCE J.:
1: Introduction
[1] These are the court’s reasons issued following the hearing of three motions argued on October 28, 2021. At the conclusion of the hearing, the court issued its decision, with reasons to follow.
[2] The motions all concerned the three-year-old child of the parents. As at the date the Children’s Aid Society of Toronto (society) issued its protection application on September 3, 2021, the child had been in the society’s care of the since August 25, 2021, pursuant to a temporary care agreement entered into on August 25, 2021 with the mother.
[3] On August 30, 2021, the mother provided the society with seven days’ written notice of her intention to terminate that agreement. As a result, the society issued its protection application. Concurrently, the society issued its motion seeking a temporary care and custody order with the society.
[4] On September 3, 2021, the court made a temporary without prejudice order placing the child in the society’s care, with access to both parents in the society’s discretion.
[5] On October 5, 2021, the father issued his motion seeking an order placing the child in his care and custody, pursuant to a supervision order.
[6] On October 6, 2021, the society responded to the father’s motion with a supporting affidavit, wherein the society aligned itself with the father, supporting the father’s motion.
[7] On October 12, 2021, the mother issued her motion seeking an order placing the child in her care and custody, pursuant to a supervision order. In the alternative, the mother sought a temporary supervision order with the maternal grandmother (grandmother).
[8] Additional affidavits were filed by the parties prior to the hearing of the motions on October 28, 2021.
[9] At the conclusion of argument, the court granted the father’s motion, and dismissed the mother’s motion. [^1]
2: Legal Framework
[10] Section 94 of the Child, Youth and Family Services Act (Act) provides:
Adjournments
94 (1) The court shall not adjourn a hearing for more than 30 days,
(a) unless all the parties present and the person who will be caring for the child during the adjournment consent; or
(b) if the court is aware that a party who is not present at the hearing objects to the longer adjournment.
Custody during adjournment
(2) Where a hearing is adjourned, the court shall make a temporary order for care and custody providing that the child,
(a) remain in or be returned to the care and custody of the person who had charge of the child immediately before intervention under this Part;
(b) remain in or be returned to the care and custody of the person referred to in clause (a), subject to the society’s supervision and on such reasonable terms and conditions as the court considers appropriate;
(c) be placed in the care and custody of a person other than the person referred to in clause (a), with the consent of that other person, subject to the society’s supervision and on such reasonable terms and conditions as the court considers appropriate; or
(d) remain or be placed in the care and custody of the society, but not be placed in a place of temporary detention, of open or of secure custody.
Where child is subject to extra-provincial order
(3) Where a court makes an order under clause (2) (d) in the case of a child who is the subject of an extra-provincial child protection order the society may, during the period of the adjournment, return the child to the care and custody of the child welfare authority or other person named in the order.
Criteria
(4) 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).
Placement with relative, etc.
(5) Before making a temporary order for care and custody under clause (2) (d), the court shall consider whether it is in the child’s best interests to make an order under clause (2) (c) to place the child in the care and custody of a person who is a relative of the child or a member of the child’s extended family or community.
Terms and conditions in order
(6) A temporary order for care and custody of a child under clause (2) (b) or (c) may impose,
(a) reasonable terms and conditions relating to the child’s care and supervision;
(b) reasonable terms and conditions on the child’s parent, the person who will have care and custody of the child under the order, the child and any other person, other than a foster parent, who is putting forward a plan or who would participate in a plan for care and custody of or access to the child; and
(c) reasonable terms and conditions on the society that will supervise the placement, but shall not require the society to provide financial assistance or to purchase any goods or services.
Application of s. 107
(7) Where the court makes an order under clause (2) (d), section 110 (child in interim society care) applies with necessary modifications.
Access
(8) An order made under clause (2) (c) or (d) may contain provisions regarding any person’s right of access to the child on such terms and conditions as the court considers appropriate.
Power to vary
(9) The court may at any time vary or terminate an order made under subsection (2).
Evidence on adjournments
(10) For the purpose of this section, the court may admit and act on evidence that the court considers credible and trustworthy in the circumstances.
[11] At a temporary care and custody hearing, the onus is on the society to establish, on credible and trustworthy evidence, that there are reasonable grounds to believe there is a real possibility that if a child is returned to the respondent, it is more probable than not that the child will suffer harm. Further, the onus is on the society to establish that the child cannot be adequately protected by terms and conditions of a temporary supervision order. See: Children's Aid Society of Ottawa-Carleton v. T., [2000] O.J. No. 2273 (Ont. Sup. Ct.).
[12] The court must choose the order which is the least disruptive placement consistent with adequate protection of the child (subsection 1 (2) of the Act): Children's Aid Society of Hamilton v. B.D. and F.T.M., 2012 ONSC 2448.
[13] The mother had “charge” of the child of the child prior to the society’s intervention. Accordingly, the burden rests with the society to satisfy the court that the child cannot safely be returned to the mother pursuant to subsection 94(4) of the Act.
[14] If the court determines that the child cannot safely be returned to the mother, the court must then turn to the question whether the child can be placed with another person pursuant to paragraph 94(2)(c) of the Act. For the purposes of the mother’s alternative request for relief, namely, placement with the grandmother on a temporary supervision order, the court is empowered to place the child with the grandmother, but only if the court is first satisfied the child can be adequately protected by that placement, and only if the grandmother consents to the placement, including her consent to be supervised by the society.
3: The Plans
3.1: The plan with the mother
[15] I turn first to the mother’s primary plan to place the child with her, as the child’s pre-intervention caregiver.
[16] As I noted at the outset, at the conclusion of argument, I dismissed the mother’s motion, concluding that a placement with her, even under terms of a supervision order, would not adequately protect the child from likely harm.
[17] I reached that conclusion for two reasons:
(1) The mother’s use of the drug ketamine, and (2) The condition of the child upon admission to the society;
[18] I will deal with each of these issues, turning first to the use of the drug ketamine.
[19] Unfortunately, the society provided very little information about the nature of this drug and the general effects it has on individuals who use it. When the society is relying on a particular drug or substance to explain why it has protection concerns, it would be helpful for the society to provide detailed evidence about that substance, including its potentially dangerous effects on persons who use it. The society should not expect the court to take judicial notice that certain drugs have specific effects or are otherwise dangerous to individuals.
[20] Accordingly, the court turned to the Government of Canada website on controlled substances, and cites from https://www.canada.ca/en/health-canada/services/substance-use/controlled-illegal-drugs/ketamine.html [emphasis added]:
About ketamine
Ketamine is also known as:
- blind
- kit kat
- vitamin K
- special K
- cat tranquilizers
It is a dissociative drug, producing a sense of mind from body separation (dissociation). It works by stopping the brain from getting nerve messages about pain. It also alters how you experience sight and sound.
Ketamine is odourless and colourless. Its effects can make it difficult for you to resist sexual assault. For these reasons, ketamine is sometimes used as a date rape drug.
When health care providers use ketamine for medical purposes they inject it in a liquid form.
When sold illegally it is generally in a powder. You can take this powder:
- smoked in a cigarette
- sniffed up the nose (snorted)
- mixed with a liquid and drunk
- dissolved in a liquid and injected into a muscle or vein
Ketamine is controlled under Schedule I of the Controlled Drugs and Substances Act. Activities such as sale, possession or production of ketamine are illegal unless authorized for medical, scientific or industrial purposes.
In Canada, ketamine has legitimate uses in medicine.
Short-term effects of ketamine
Ketamine is fast acting. It affects you in minutes if taken by:
- nose (nasally)
- injection in a vein (intravenously)
- injection into a muscle (intramuscularly)
Effects are much slower if you take ketamine by mouth. Ketamine use leads to short-term mental and physical effects.
Mental effects
Some of the short-term mental effects can include:
- being unable to speak
- a drunken, dizzy feeling
- sleepiness, confusion and loss of coordination
- sensations of weightlessness or inability to move
- vivid dreams or hallucinations, which may be intense and terrifying
- feeling like the mind is separated from the body (dissociation sometimes referred to as the "K-hole")
Physical effects
A person who uses ketamine may also experience physical symptoms, such as:
- numbness
- blurred vision
- difficulty breathing
- loss of consciousness
- unpleasant taste in the mouth
- increased blood pressure and heart rate, which can lead to:
- stroke
- accidents
- heart attack
- decreased response to pain, which puts the person at risk for injuries
When the effects of ketamine wear off you may feel anxious and depressed. You may also be unable to remember what happened while you were on the drug.
Ketamine can also cause nausea and vomiting. People who eat or drink before taking the drug increase their risk of choking on vomit.
Long-term effects of ketamine
With long-term use the effects of ketamine can become more severe. Common side effects for people who use ketamine regularly may include urinary and bladder problems, such as:
- bladder inflammation
- difficult or painful urination
- frequent or urgent urination
- inability to hold in urine (incontinence)
Long-term mental side effects may include:
- flashbacks
- impaired memory
- decreased sociability
- attention deficit or dysfunction
Risks related to ketamine use
If you share drug equipment such as needles and syringes you are at increased risk of infection. Contaminated equipment can spread several serious diseases, such as:
Staying at the scene of an overdose is important to help save the life of the person experiencing an overdose. The Good Samaritan Drug Overdose Act provides some legal protection for individuals who witness an overdose and call 911 or their local emergency number for help.
Using ketamine in large amounts can increase the risk of overdose. Large amounts of ketamine may depress the nervous system. This can result in effects such as:
- coma
- death
- sedation
- slowed breathing
As ketamine itself can induce overdose and is also a central nervous system depressant, co-use with other depressant drugs (including alcohol and opioids) can be dangerous. It can cause respiratory depression or stop your breathing completely. Activities that need focus and attention, like driving, also become dangerous.
Substance use disorders and withdrawal
Ketamine can be addictive. If you use it regularly your body may become tolerant of the drug's effects. This means you need to take more and more to feel the same effects.
If you stop abruptly after frequent use you can experience withdrawal syndrome. This includes symptoms such as:
- craving
- sweating
- headaches
[21] Although this document was not placed before the court during argument, the court treats this as in the nature of a public document. Public pronouncements are all admissible under the public documents exception to the hearsay rule. See A.C. v L.L., [2021] ONSC 6530.
[22] Even if another court were to conclude this extract from the Government of Canada does not come within the public documents exception to the hearsay rule, the court relies on the document as credible and trustworthy in the circumstances.
[23] The mother did not deny using this drug, instead stating “I am not addicted to ketamine”.
[24] The mother denied suffering any harmful effects from ketamine.
[25] I quote the following from the society’s affidavit:
On June 13, 2021, at approximately 11:26 p.m., the society’s after hours worker, Luc Marion, received a phone call from Vu Trinh of Toronto Paramedics who reported that [mother] had called 911 at 10:40 p.m. because she thought she was overdosing and was going to faint. Mr. Trinh advised that [mother] reported snorting ketamine on a daily basis to get high (euphoria) while she looked after her son. [Mother] was transported to HRRH Wilson site. [the child] remained with the landlord and mother’s roommate. [Mother] was observed at the ER and then discharged.
[26] The society worker further deposed:
I spoke with mother about the recent 911 call and re-addressed the ketamine use. She advised that she did not use ketamine on a daily basis because she coud not afford it. She shared that she used no more than 0.5 mg a day and used it to deal with anxiety and to be “happy”. Mother acknowledged that her body craved the ketamine when she was not using.
[27] At a later point in the society worker’s affidavit, she deposed:
[mother] advises that she does not want her family or friends to know about her ketamine use, and feels embarrassed and that she has disappointed her family and hurt them . . . . I have discussed and reviewed with [mother] on numerous occasions the harmful effects of ketamine, its impact on her physical health, as evidenced by her headaches, feeling weak and faint and having to call 911 on two occasions in June, and her bladder/kidney problems which she acknowledged were related to the ketamine use and resulted in incontinence. I provided her with handouts from the Centre for Addictions and Mental Health. I also explained the impact of her drug use on parenting and meeting [the child’s] needs, such as the delay in addressing his eczema, assessing his possible speech delay, getting him toilet trained and ready for day care or school.
[28] As between the mother’s bare denials and the society’s highly detailed and well-documented evidence, the court considers the society’s evidence to be credible and trustworthy, and the court relies upon that evidence.
[29] It is clear from the aforementioned extract from the Government of Canada, that ketamine is a highly dangerous drug. The mental and physical effects on a user can be very serious.
[30] It is one thing for an adult to make a choice to use this drug when she does not have any childcare responsibilities. It is another thing entirely for a single parent in mother’s situation to be using this drug while she is the child’s sole caregiver. Moreover, when that child is as young as this child is, the child is at even greater risk of harm if mother were to suffer some of the serious side effects of the drug while caring for the child.
[31] In the court’s view, what particularly exacerbates the risks from the drug use itself is the way the mother responds to the issue in her evidence. Instead of acknowledging that she may have a serious problem which she needs to address, she dismisses entirely the society’s concerns. Instead of recognizing that she is placing her small child at risk of harm by her continued use of the drug, she states simply, in effect, that her ketamine use is of no real consequence in respect of any child protection issues.
[32] The court’s findings on the mother’s drug use are sufficient to conclude that the child cannot be placed with the mother on terms of a supervision order. Any supervision order would require the mother to abstain entirely from the use of ketamine. However, because the mother does not even acknowledge a regular use of the drug and the harmful side effects, including the risk of harm to her child, the court cannot have any confidence that such a term would adequately protect the child from risk of harm.
[33] Nevertheless, the court turns to the second issue, namely, the child’s physical condition upon admission to the society.
[34] The doctor who examined the child on August 27, 2021, following his admission to the society’s care, concluded that the child was underweight and that he suffered from eczema.
[35] In response to this, the mother stated that the child is small in stature. She also said that the child eats Vietnamese foods which is not as fatty as Western food. She said that the child’s stature “is a product of his genetics not any malnutrition or under feedings”.
[36] The doctor who examined the child would have been aware of the child’s ethnicity. Nevertheless, the doctor concluded that the child was underweight and she prescribed a “higher calorie diet”. The mother rejected that finding.
[37] Once again, as between the doctor’s assessment and the mother’s outright rejection of that assessment, the court concludes that the doctor’s evidence is credible and trustworthy.
[38] While the court does not conclude from the evidence that the mother was intentionally malnourishing the child, nevertheless, that was what occurred – at least on the evidence before the court at this early stage of the proceedings.
[39] The mother’s case on this issue would have been stronger if she had said, in effect, I was feeding my child a diet based on my own ethnic experience and unfortunately I did not realize that his caloric intake was insufficient, and now that the doctor has alerted me to this problem, I will ensure that I increase his caloric intake.
[40] That kind of response would have demonstrated an appropriate level of insight and understanding and, thus, the basis for an opportunity to begin to address the problem. Instead, she outright rejected the doctor’s assessment.
[41] The second problem the doctor identified was the child’s eczema. The doctor recommended the need for proper skin care to address this condition.
[42] In response, the mother stated that her child’s eczema “flares up at certain times and then goes”. She sometimes uses a skin cream which she says will cause his skin to “flare up badly and then subside after a few days”.
[43] The mother’s responses are concerning to the court. She suggests that the eczema just goes away on its own sometimes, without the use of any appropriate medicinal cream. She also seems to suggest that the use of a cream itself causes the eczema to flare up.
[44] Nowhere does she state that she has taken the child to a dermatologist and that the dermatologist has prescribed an appropriate medication to deal with his eczema, something which the mother says the child has suffered from since he was two years old.
[45] In the portion of her evidence headed “My Plan” the mother makes certain promises to do things in the future. She says she is willing:
- to follow all recommendations by the society;
- to work with the society to ensure the child continues to be safe in my care;
- to ensure the child regularly sees his family doctor and gets a referral to a dermatologist; and
- to utilize community supports to ensure all of his development needs are met.
[46] The court can hope that mother will in fact make the changes necessary to ensure that whenever her child is with her, he will be adequately protected. However, this case is not about the mother’s bare promises to make changes in the future. Instead, the case at this early stage is about where mother is at today, what she has in fact done to at least begin to implement changes so that if the child were to be placed in her care now, he would not be exposed to a risk of serious harm.
[47] That said, it is not necessary in all cases that protection concerns be immediately addressed by a parent before her child can be placed with her on a supervision order. Instead, this will be dependent on the seriousness of the risk of harm and the seriousness of the potential harm itself, combined with the parent’s willingness to take immediate steps as well as her genuine willingness to follow the terms of the supervision order.
[48] In the present case, the risk of harm to the child, particularly in the context of the mother’s use of ketamine is a risk which the court considers to be significant.
[49] This significant risk of harm, combined with the potential seriousness of that harm, when viewed in the context of all the mother’s denials and her dismissiveness of the society’s evidence and protection concerns, leads the court to conclude that it cannot have any confidence in the mother’s promises. In the particular circumstances of this case, the mother needs to demonstrate that she has insight into those protection concerns and that she has at least begun to implement the necessary changes. Without this, her promises to comply with terms of a supervision order are little more than words on a piece of paper.
3.2: The plan with the grandmother
[50] I turn next to the mother’s alternate plan, to place the child in the care of the grandmother. In her affidavit, the mother stated that the grandmother, who lives in St. Catharines, Ontario is willing to be assessed by the society. However, the mother neither provided a consent to such a placement signed by the grandmother, an affidavit from the grandmother, or even a letter from the grandmother, stating her willingness to take on the immediate care of the child.
[51] Moreover, in the society worker’s affidavit sworn October 25, 2021, the worker deposed as follows:
[the grandmother spoke to a society worker on August 25th, 2021 and advised] she could not help [mother] with caring for the child, not even for a short period of time and with the society’s support. [the grandmother] also advised that she was living with her boyfriend in his mother’s house and there was no room for a child and no one available to care for a child.
[52] When the mother filed her affidavit stating that the grandmother would be willing to take on a caregiver role, the society worker followed up with a conversation with the grandmother on October 22, 2021. The society worker deposed as follows:
[the grandmother] advised that she was okay with [the child] staying with his father, but preferred that she care for [the child]. She advised that she would support the mother to live in her home. As the grandmother was at work, our conversation was brief and I do not have any further information about this new plan.
[53] Based on this evidence, the court concluded that placement with the grandmother was not an option. The court had no real information about the grandmother, nothing fleshed out about her living conditions, and her willingness to consent to be the custodial caregiver and to comply with terms and conditions of a temporary supervision order.
[54] While not intended as a criticism of the grandmother, the court took from the society’s evidence that the grandmother had a busy life, including her employment responsibilities. She did not seem to have the time to invite the society to come to her home and to allow the society to conduct any sort of meaningful assessment of her plan. [^2]
[55] In all of those circumstances, a placement with the grandmother was not viable at this stage of the proceedings.
3.3: The plan with the father
[56] As the court noted earlier, subsection 1(2) of the Act requires the court to make the least disruptive order consistent with the best interests, protection and wellbeing of the child.
[57] It is less disruptive for a child to be placed with a parent than to be placed in foster care.
[58] The father and the mother were never in a relationship. The child’s birth was the result of a one-night stand.
[59] While the mother does not necessarily agree with the entirety of the father’s narrative, the father states that he supported the mother during her pregnancy, as well as following the child’s birth.
[60] The father lives with his current partner and their two children, ages 4 and 2 years.
[61] He began having access visits with the child on September 10, 2021, supervised at the society’s office.
[62] The society worker deposes that the visits between the father and the child went well. The father was prepared with appropriate food and toys for the child.
[63] On September 17, 2021, the society worker met with the father and his partner at their home. The society worker interviewed both the father and his partner and inspected the home in which they lived. The society concluded that their two children were well taken care of and that they were meeting their developmental milestones.
[64] In the subsequent days and weeks, the society continued to meet with the father and his partner and assess their ability and willingness to care for the child. The society concluded from its assessment that the child should be placed on an extended access visit with the father. That extended access placement occurred on October 14, 2021.
[65] The society continued to assess the placement and concluded that the child transitioned well into the father’s care. The father is following up with the child’s medical needs and is also attending school.
[66] There appears from the evidence to be no difficulties with the current placement in the father’s care, which cannot be addressed by a temporary supervision order.
4: Conclusion
[67] At the conclusion of argument on October 28, 2021, the court made the following order, which is set out below:
- The child is placed in the temporary care and custody of the father, subject to society supervision on the terms set out at paragraph 43 of the affidavit of Arshdeep Singh dated October 28, 2021;
- The mother shall have access supervised by the society, frequency, duration and level of supervision in the society’s discretion, with access to be not less than once each week, on condition that the mother telephone or otherwise notify the society in a satisfactory manner no later than 9:00 a.m. the day of the scheduled visit to confirm her intention to exercise her scheduled access visit, failing which the society is at liberty to either cancel or reschedule the mother’s visit; and
- The mother shall forthwith, and in any event within 48 hours [^3], deliver to the father the child’s Ontario Health Card. Pending further court order, the father shall be the custodian of the Health Card.
[68] The mother raised with the court the alleged delay in the society making full disclosure, which mother says she had requested on September 2, 2021, but which had yet to be made. Accordingly, the court also ordered the society to make full disclosure within 21 days, that is, by November 18, 2021.
[69] Finally, the society advised that it is likely to amend its protection application to seek a supervision order with the father. The time required to prepare and to serve that amended application, as well as allowing for a 30-day period to respond, necessitated a somewhat longer adjournment period. Accordingly, the court adjourned to January 17, 2022, at 11:00 a.m., before Justice Curtis.
Released: November 1, 2021 Justice Robert J. Spence (signed electronically)
[^1]: The society’s original motion seeking temporary placement with the society, while not formally replaced with an amended notice of motion by the society, had effectively been converted by the society into a motion supporting the father’s position. [^2]: Even assuming that the grandmother had a plan [^3]: The 48-hour period to be calculated from the conclusion of argument on October 28, 2021.