WARNING
The court hearing this matter directs that the following notice should be attached to the file:
This is a case under Part V of the Child, Youth and Family Services Act, 2017, (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:
87.— (7) Order excluding media representatives or prohibiting publication. — Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, 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, the court may make an order,
( c ) prohibiting the publication of a report of the hearing or a specified part of the hearing.
(8) Prohibition re 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) Prohibition re identifying person charged .— 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.
142.— (3) Offences re publication. — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)( c ) or subsection 87(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.
ONTARIO COURT OF JUSTICE
DATE: 2024 03 20 COURT FILE No.: 23/1043
CHILDREN’S AID SOCIETY OF TORONTO Applicant
— AND —
KB, OA, CB Respondents
Before Justice Susan Sullivan
Heard on March 11, 2024 Reasons for Judgment released on March 20, 2024
Counsel: C. Withanage................................................................. Counsel for the Applicant Society M. Haddad, agent for T. Law...................................Counsel for the Respondent, KB P. Tensuda................................................................Counsel for Respondent, OA CB, on her own behalf (Party to Motion)
JUSTICE S. SULLIVAN
Part 1 – Introduction
1This temporary care and custody hearing is about W, born […], 2022. He is 16 months old.
2W’s mother is KB. His father is OA. His maternal grandmother is CB.
3KB had charge of W at the time of the Children’s Aid Society of Toronto’s intervention under Part 5 of the Child Youth and Family Services Act, 2017.
4In its Notice of Motion dated November 10, 2023, the Society seeks a temporary order that:
(a) W shall be placed in CB’s care, subject to Society supervision; and
(b) The parents’ access with W shall be fully supervised, with terms. The location, duration, and frequency of said access shall be at the discretion of the Society.
5KB requests the following temporary order:
(a) W shall be placed in her care and custody with unsupervised parenting time, subject to terms; and
(b) In the alternative, W shall be placed in CB’s care, and she shall have unsupervised parenting time, subject to terms.
6OA supports KB’s request. He accepts that his parenting time will be fully supervised. He requests the following:
(a) He shall have virtual access and phone access with W, subject to terms; and
(b) His in-person, fully supervised parenting time shall be expanded.
7CB supports KB’s request. With respect to OA’s access, she defers to the Society. CB is also prepared to continue to care for W and comply with any order this court makes.
8On November 14, 2023 this court made a temporary without prejudice order, per the terms requested in the Society’s November 10, 2023 Notice of Motion.
9The credible and trustworthy evidence in the following affidavits has been considered:
(a) Society worker, Nancy Perkovic’s affidavit dated November 10, 2023;
(b) OA’s affidavit dated January 22, 2024;
(c) Giselle Che’s affidavit dated January 23, 2024;
(d) Ms. Perkovic’s affidavit dated February 14, 2024;
(e) KB’s affidavit dated February 29, 2024;
(f) CB’s affidavit dated February 20, 2024;
(g) OA’s affidavit dated March 1, 2024; and
(h) Ms. Perkovic’s affidavit dated March 7, 2024.
10The legal issues for the court to determine are:
(a) Has the Society met its onus under the CYFSA to establish that W cannot be adequately protected in KB’s care, subject to terms of supervision?
(b) If not, what terms of supervision, if any, should be ordered?
(c) If the Society has met its onus, is it in W’s best interests to be placed in the temporary care and custody of CB? If so, what terms of supervision, if any, should be ordered?
(d) If W remains in CB’s care, what access order to KB is appropriate?
(e) What access order to OA is appropriate?
Part 2 – Facts
11KB and OA commenced a relationship in or around 2021.
12W is KB’s only child.
13OA has five other children, from three prior relationships. None of these non-subject children are in his care.
14KB and OA were residing together, with W, at the time of their arrests on November 7, 2023.
15According to OA’s Release Order dated December 13, 2023, he is currently charged with the following (the offence dates are in parentheses):
(a) Make child pornography (2021/12/06);
(b) Indecent exposure to a person under 16 (2021/12/06);
(c) Make child pornography (2014/01/01 - 2015/12/31);
(d) Possession of child pornography (2021/12/27);
(e) Assault (2017/01/01 - 2017/02/28);
(f) Forcible confinement (2017/01/01 - 2017/02/28);
(g) Make child pornography (2016/08/10 - 2018/08/29);
(h) Make child pornography (2021/10/27);
(i) Possession of child pornography (2021/12/29);
(j) Voyeurism (2018/08/29);
(k) Voyeurism (2016/04/01 - 2018/12/31);
(l) Sexual assault (2020/12/24);
(m) Extortion (2020/07/01 - 2020/09/30);
(n) Administer noxious substance (2020/09/01 - 2020/09/30);
(o) Sexual assault with a weapon (2016/04/01 - 2016/04/30);
(p) Forcible confinement (2016/04/01 - 2016/04/30);
(q) Sexual assault (2020/03/01 - 2020/12/31);
(r) Sexual assault (2015/11/01 - 2016/04/30); and
(s) Sexual assault (2016/08/01 - 2016/11/30).
16OA’s December, 2023 Release Order includes that he is not to be in the company of or communicate, directly or indirectly, by any physical, electronic, or other means with W, except with permission of Children’s Aid Society or through family court.
17OA currently resides with his surety, DB in Barrie.
18OA has pled not guilty to all the charges laid against him.
19OA’s position is that he is being set up by his ex-partners.
20According to KB’s Release Order dated November 7, 2023, she is currently charged with the following:
(a) Making child pornography (2021/12/06); and
(b) Exposure (2021/12/06).
21KB’s November, 2023 Release Order includes that:
(a) She is not to engage in any activity that involves contact with persons under the age of 18 years old; and
(b) She is not to attend any public park or public swimming area or area of the community where a person under the age of 18 years old are present or can reasonably be expected to be present, including daycares, school grounds, or playground areas.
22As of January 10, 2024, following a variation of her November 7, 2023 Release Order, KB has been residing with CB, who is now her surety (her father, Mr. B, was her original surety).
23On February 12, 2024 KB advised Ms. Perkovic that her criminal lawyer submitted a request for a bail variation so she can attend the community park with W, with CB’s supervision. The Crown denied this request, however, KB further advised that her criminal lawyer is inquiring whether the Society would approve this type of request, and if so, the Crown will reconsider.
24KB states in her affidavit that she is in the process of getting her bail conditions changed to allow her to be with W in public places such as parks, libraries, and daycare facilities.
25KB has pled not guilty to the charges laid against her.
26On November 7, 2023 Detective Stephane Villeneau from Halton Regional Police showed Ms. Perkovic four photographs that were in the evidence seized in December, 2021 during OA’s initial arrest.
27Detective Villeneau told Ms. Perkovic that the photos were taken in the home of OA and his previous partner, T.’s mother. The pictures appear to be a series of still images, taken the same day, in the same location. Both KB and T. are wearing the same clothes in all the images.
28Ms. Perkovic describes the pictures as following:
(a) Picture 1: KB is sitting on a couch next to T. T appears to be approximately 3 years old. KB is looking at the camera.
(b) Picture 2: KB is sitting on the floor and T is sitting next to her. T is looking at KB. KB is looking up at the camera.
(c) Picture 3: KB is sitting on the floor and T is next to her. Part of the image is redacted. Detective Villeneau advised Ms. Perkovic that the redacted image is of OA’s genitals. In this photo, KB is performing oral sex on OA. T is beside KB.
(d) Picture 4: KB is sitting on the couch next to T feeding him a bottle. KB is looking up at the camera while T. is looking straight at something else.
29With respect to these photos, KB’s evidence is:
(a) Ms. Perkovic’s descriptions of the pictures are inaccurate, misleading, and do not reflect what happened.
(b) Only one of the pictures (picture 3) shows her performing oral sex on OA. The other pictures do not involve her performing any sexual act with OA.
(c) In the photograph that shows her and OA engaging in sexual activity, T can be seen in the background.
(d) While she and OA were engaged in sexual activity, she was not aware of T’s presence.
(e) She was not involved in creating child pornography or deliberately exposing herself to anyone.
(f) She would never knowingly expose W or any other child to sexual activity or harm and would never use him or any other child to create child pornography.
(g) She has been instructed by her criminal lawyer not to say anything more about the pictures.
30OA does not address the above-noted photographs, or any of the circumstances related to his other charges, in his affidavit evidence.
31In or around December, 2021 OA was arrested in relation to some of his above-noted offences (including child pornography). At or around that time:
(a) KB became OA’s surety (and continued this role until his arrest in November, 2023); and
(b) The allegations of risk of sexual harm were not verified by Halton CAS. The file was closed at intake as both mothers were protective of the children (OA’s children P and T).
32In June, 2022, CAST became involved with KB and OA, after learning via a referral from PC Campbell of Toronto Police Service received May 18, 2022, that KB was pregnant.
33From June, 2022 to November, 2023:
(a) The parents worked cooperatively with CAST.
(b) KB supervised all of OA’s contact with W.
(c) There were no concerns with respect to KB’s and OA’s compliance with the Society’s expectations that OA was not to be left in a caregiving role to W at any time, and that OA was not to participate in any care of W.
(d) The Society had initially planned to commence a protection application and request a supervision order upon W’s birth, however, given the lack of concern that the safety plan was not being followed, on December 6, 2022 the Society decided not to pursue a supervision order.
(e) There were no concerns regarding the parents’ abilities to provide W with proper instrumental care; KB was W’s primary caregiver, and he was thriving. KB was observed to be gentle, caring, and kind. OA was observed to have positive interactions with W. The home was observed to be very centered around the baby.
(f) In September, 2023 there was an isolated incident of W having to receive emergency health care following ingestion of one of KB’s anti-depressant pills.
(g) The family’s overall situation caused a lot of stress, and this impacted KB’s and OA’s relationship. For example, on October 25, 2023 Ms. Perkovic received a call from KB, in which KB advised that over the weekend, she and OA had an argument while visiting CB. KB further indicated that she wanted to speak with Ms. Perkovic. When Ms. Perkovic attended the home, the parents were visibly upset and engaged in an argument. W was present. The argument was over OA’s expectation that KB and W be ready to leave CB’s home when he was done showering. They then continued to argue about their financial circumstances and housing situation. OA threw a cell phone, which KB thought was intended to hit her (it did not). Ms. Perkovic observed both parents to be frustrated and angry with one another. The argument went on until KB asked for space. Ms. Perkovic watched W while OA went to get some fresh air and KB went into her bedroom.
34On November 7, 2023 Ms. Perkovic received a call from Halton CAS worker Lisa Potts who advised that both OA and KB were arrested that morning.
35The parents had placed W with GM prior to being arrested and incarcerated. GM was not able to care for W longer term.
36On November 7, 2023 KB was released on bail.
37On November 7, 2023 Ms. Perkovic had a meeting with KB, CB, Mr. B (KB’s father):
(a) The grandparents expressed concern that KB was protecting OA despite the charges he is facing;
(b) KB was upset with them speaking about OA and her relationship with him. She said she would have contact with him.
38On November 7, 2023 CB was deemed a place of safety and W has continued to reside with her since that date.
39Family and Children’s Services of Lanark, Leeds and Grenville has completed a full kinship assessment of CB. It was approved on January 25, 2024 by Kinship Assessment Worker, Ruth Wilcox. There are no concerns regarding CB’s care of W. He is thriving in her care. There are no concerns regarding CB’s compliance with the existing temporary, without prejudice supervision order.
40CB has provided nothing but positive feedback regarding KB’s care of W. KB is primarily responsible for meeting all of W’s needs, which she does appropriately, while being fully supervised.
41There is no evidence that KB has not complied with this court’s supervision order and her Release Order.
42If W is returned to KB’s care, KB plans to continue to live with CB. She proposes that her mother is a protective factor; KB has no doubts, and CB confirms, that if CB has concerns regarding KB, or W, CB will contact the Society. KB plans to continue therapy. She is open to the Society attending her home on an announced and unannounced basis. KB proposes that initially she have unsupervised parenting time in the community, if necessary, to permit the Society the opportunity to assess her having unsupervised time prior to there being unsupervised parenting time in the home. She plans to take W grocery shopping, to parks, play areas, and enrol him in daycare. She will report to CB and the Society as to the activities she engages in with W during unsupervised access.
43With respect to OA’s access:
(a) December 28, 2023 was his first visit, following his release from Maplehurst Correctional Facility on or around December 14, 2023.
(b) OA’s access with W is at the Rose Garden Family Support Center Supervised Access located in Smith Falls. This access occurs on Tuesdays from 3:30 p.m. to 5:30 p.m.
(c) OA has attended all visits, except for a few, which he missed because of transportation issues, caused by financial difficulties.
(d) On January 3, 2024 KB requested, on behalf of herself and OA, to be able to attend his access visits, to assist W with the transition to OA’s care, which was approved.
(e) There have been no reported concerns regarding KB’s and OA’s interactions with each other at OA’s access visits.
(f) There are no concerns regarding OA’s interactions with W at access. OA is affectionate with W, able to soothe the child when he cries, and engages his son in play.
(g) On February 5, 2024 Ms. Perkovic received approval from the Branch Director, Sherri McMullen, to reimburse OA for the cost of travelling to his access. Thus far, CAST has provided OA a total of $1,000.00.
44There is no evidence that OA has not complied with this court’s supervision order and his Release Order.
45W is doing well in CB’s care.
46KB has advised that her relationship with W continues to thrive, and that he has always been very attached to her, and he continues to be this way.
47KB and OA have separated. Ms. Perkovic learned about this by reading their affidavit evidence filed for this temporary care hearing; KB’s affidavit is dated February 29, 2024 and OA’s affidavit is dated March 1, 2024. On January 29, 2024 KB told Ms. Perkovic, when they were discussing her relationship with OA, that she has “distanced herself as recommended by her counsel to focus on her and W’s needs.” When Ms. Perkovic followed up with KB on March 4, 2024 after reading her affidavit, KB told her that they have been separated since December, 2023.
48Most recently:
(a) Immediately upon OA’s release from Maplehurst Correctional Facility, on or around December 14, 2023, KB went to visit him;
(b) KB drove OA to and from his access visits prior to her moving to Frankville, in January, 2024; and
(c) On January 9, 2024 KB emailed Ms. Perkovic, “OA and I would like CAS to give permission for virtual access for OA so he can regularly FaceTime with W. OA’s lawyer has requested permission for this so he can bring it to criminal court.”
49KB says:
(a) She visited with OA upon his release to provide him an update with respect to W and to check on his well-being.
(b) She believes W deserves to have a relationship with both parents, and this is the reason why she has involved herself with OA. She notes that access via video will give OA the chance to see W more than just once a week and to build a relationship with his son.
50KB has engaged in services:
(a) Following her arrest, she attended psychotherapy with Sharon Cass-Toole to process her thoughts and feelings and cope with the situation.
(b) Since January 25, 2024, she has been attending weekly psychotherapy sessions with Melanie Van Nieum Amerongen (registered social worker), where she learns coping strategies for stress management, prioritizing her needs over others (apart from W’s), processing her previous relationship with OA, and developing insight and perspective. At the time her motion materials were prepared, KB had attended four sessions with Ms. Amerongen. She states that she found these to be “extremely helpful in learning how to set boundaries with others, especially OA, and how to manage my emotions and have healthy relationship that are focused on my wellbeing and that of W’s. I have consistently applied useful tools learned during the sessions.”
51Ms. Amerongen recommended that KB participate in “Sex and Love Addicts Anonymous”, which KB describes as a group that helps with “various aspects of romantic relationships, primarily with creating healthy boundaries with significant others and leaving unhealthy relationships.” She has attended two sessions, which she finds beneficial.
52A letter authored by Ms. Amerongen dated February 21, 2024 is before the court:
(a) She notes that KB has a positive attitude toward treatment.
(b) She says that they have been focused on processing the events that have occurred that lead her to her ongoing legal issues.
(c) She further advises that they have been working on exploring maladaptive boundary styles, cognitive restructuring, and development of her core beliefs and values.
(d) She explains that the referral to the Sex and Love Addicts Anonymous group was made to help KB gain mutual aid and support regarding co-dependant and unhealthy boundaries within romantic relationships.
(e) She says they have identified the detrimental impact that unhealthy relationships have on both KB’s and W’s welfare.
53On February 12, 2024 Ms. Perkovic provided KB with consent forms for her review and signature so she could follow-up with KB’s service providers. KB has not returned these consents to Ms. Perkovic, signed. When Ms. Perkovic followed up with KB on March 7, 2024, KB advised her that she had forgotten about the consent forms. As a result, Ms. Perkovic has not been able to follow up with the service providers to gain an understanding of the work done to date, and the reasons for the recommendation that she participate in the Sex and Love Addicts Anonymous group.
54OA has not provided any particulars with respect to services, if any, he is involved with.
Part 3 – Legal Considerations
3.1 Placement
55The purpose of the temporary care and custody hearing is to determine where the subject child is to stay until the merits of the protection case can be heard. See: Children’s Aid Society of Hamilton v. D. (B.), 2012 ONSC 2448, para 28.
56Justice Katarynych described the nature of a temporary care and custody hearing in Children’s Aid Society of Toronto v. P. (L.), 2010 ONCJ 320 when she stated:
88This temporary care and custody motion, like all temporary care and custody motions within the statutory scheme of Part III of the Act, is a prelude to the protection hearing, not the protection hearing required by Part III of the Act.
91The legislature never intended the "temporary" adjudication flowing from the temporary motion hearing to trump the protection hearing, nor did it intend a temporary custody order in favour of a children's aid society to be "proof" of the "need of protection" claim advanced in the protection application.
92The temporary custody order is a time-limited order designed to allocate responsibilities for the child while the parties prepare themselves to deal with the protection application itself.
57A court must choose the order that is the least disruptive placement consistent with the adequate protection of the child. See: Children’s Aid Society of Hamilton v. D. (B.), supra, para. 29. This is codified in subsections 94(2), (4), and (5) of the CYFSA. The statutory pathway is as follows:
(a) The court must first consider whether the subject child can return to the care of the person(s) who had charge of them immediately before intervention (with or without terms of supervision).
(b) Next, the court is to consider whether the subject child can be placed in the care and custody of another person (with that person’s consent, with or without terms of supervision). However, the court cannot consider this option unless it is satisfied that there are reasonable grounds to believe that there is a risk that the child is likely to suffer harm if returned to the person who had charge of them and that they cannot be adequately protected by a court order.
(c) The last alternative is for the subject child to be placed in or remain in the care of a child welfare agency. Before making such an order, the court must consider whether it is in the child’s best interests to make an order placing 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.
58The CYFSA also requires (per subsection 94(11)) that before making an order at a temporary care and custody hearing, the court shall take into consideration the child’s views and wishes, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained.
59It is well established that at a temporary care and custody hearing, there is a two-part test that the Society must meet:
(a) First, the onus is on the Society to establish, on credible and trustworthy evidence, that there are reasonable grounds to believe that there is a real possibility that if a child is returned to the person who had charge of the child immediately prior to the Society’s intervention, it is more probable than not that the child will suffer harm.
(b) Second, the onus is on the Society to establish that the child cannot be adequately protected by terms and conditions of an interim supervision order.
See: Children's Aid Society of Ottawa-Carleton v. T., 2000 O.J. No. 2273 (SCJ); Children’s Aid Society of Halton Region v. Z. (T.A.), 2012 ONCJ 231.
60The burden on the Society at this stage does not go as high as showing that on the balance of probabilities there is an actual risk to the child in their caregivers' care. See: D. (L.) v. Children's Aid Society of Durham (County), 2005 O.J. No. 5050 (Div. Ct.) and Catholic Children's Aid Society of Toronto v. R. (M.L.), 2011 O.J. No. 5552 (OCJ).
61The onus is, by its nature, not a difficult onus for the agency to meet since the standard of proof is made low by the very wording of the Act: "reasonable" grounds, a "risk", and "likely" harm, and "adequate" protection for the child. See: Children’s Aid Society of Dufferin County v. A.T., 2011 ONCJ 52.
62The CYFSA places an emphasis on family reunification, provided of course that it is safe and appropriate to do so. See: Children’s Aid Society of Toronto v. T.L., 2018 ONCJ 691.
63For a supervision order to be a meaningful and effective instrument of risk management, the person subject to the supervision order must meet a minimum threshold of cooperation, and reliability. See: Catholic Children’s Aid Society of Toronto v. S. (P.N.), 2015 ONCJ 164, 2015 ONCJ164 and Catholic Children’s Aid Society of Toronto v. L.D. and A.Z., 2018 ONCJ 68.
64The CYFSA requires supervision terms to be reasonable. As such, they must be proportionate to the need shown by the evidence and address a specific risk concern. If there is no concern about a particular issue, it is not reasonable to have a term of supervision which addresses that issue. See: Children’s Aid Society of Windsor-Essex v. B. (S.), 2007 ONCJ 2700.
65With respect to the evidence at a temporary care and custody hearing, subsection 94(10) of the CYFSA permits the court to admit and act on evidence that the court considers credible and trustworthy in the circumstances. In determining what evidence the court considers to be credible and trustworthy, the evidence must be viewed together. Evidence that may appear not to be credible and trustworthy when viewed in isolation might reach that threshold when examined in the context of other evidence. See: Family and Children's Services v. O. (R.), 2006 O.J. No. 969 (OCJ)
66In Catholic Children's Aid Society of Metropolitan Toronto v. D. (A.), 1993 O.J. No, 3129, Justice Wilson addressed the issue of what type of evidence constitutes “credible and trustworthy” evidence upon which the court can make a finding for the purpose of a temporary protection proceeding. At paragraph 49, he notes:
49I adopt the reasoning of Abbey Prov. J. (as he then was) in a decision of Roman Catholic Children's Aid Society (Essex) v. H. (L.), unreported (Ont. Prov. Ct., Fam. Div.), July 21, 1987, pp. 9-11. He, in my view, correctly outlines the kind of affidavit material that meets the test of " credible and trustworthy ":
17I believe that section 47(7) [now s. 51(7)] should be taken to mean that the court in such a hearing can admit evidence which is such that there is about it some apparent real sense of believability and reliability arising from the subject matter of evidence, the proximity of the witness or author of the document to that subject matter, the nature of the relationship between the witness or author of the document and the person whose statements are recorded or repeated in evidence and the degree to which the evidence is material to the paramount issues in the case.
18It is not necessary, in other words, before admitting evidence pursuant to subsection 7 that the conclusion be first reached that the evidence will without question be accepted as to its truth and that it will be acted upon. What is necessary is that the evidence is such that it appears believable and reliable.
19The decision whether to act on the evidence or not will depend upon a number of additional factors including a recognition that the evidence may not have been subject to cross-examination as to its truth, the remainder of evidence called and the circumstances surrounding the way in which the author of the document or the witness came into possession of the facts which are the subject of the evidence, and which circumstances themselves may be the subject of cross-examination.
3.2 Access
67Subsection 94(8) of the CYFSA states that an order made under clause 94(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.
68In determining what order is appropriate, the court should consider the paramount purpose of the Act, being the best interests, protection, and well being of children, and the secondary purposes of maintaining the integrity of the family unit, assisting families in caring for their children, and recognizing the least disruptive action consistent with the best interests of the children. See: Subsections 1(1) and (2) of the CYFSA.
69In assessing best interests, the court should consider the relevant factors set out in subsection 74(3) of the CYFSA. See: Jewish Family and Child Service of Greater Toronto v. S. (H.B.), 2012 O.J. No. 5055 (OCJ); Catholic Children’s Aid Society of Toronto v. Z.Y.J., 2017 ONCJ 353; Catholic Children’s Aid Society of Toronto v. K.S., 2020 ONCJ 268.
70Subsection 74(3) of the CYFSA states:
Best interests of child
(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall,
(a) consider the child’s views and wishes, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained;
(b) in the case of a First Nations, Inuk or Métis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Métis cultures, heritages and traditions, of preserving the child’s cultural identity and connection to community, in addition to the considerations under clauses (a) and (c); and
(c) consider any other circumstance of the case that the person considers relevant, including,
(i) the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs,
(ii) the child’s physical, mental and emotional level of development,
(iii) the child’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression,
(iv) the child’s cultural and linguistic heritage,
(v) the importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family,
(vi) the child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community,
(vii) the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity,
(viii) the merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent,
(ix) the effects on the child of delay in the disposition of the case,
(x) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent, and
(xi) the degree of risk, if any, that justified the finding that the child is in need of protection.
Part 4 – Analysis
71The Society has met its onus on both parts of the two-part test.
72First, there are reasonable grounds to believe that there is a real possibility that if W is in KB’s care, it is more probable than not that he will suffer harm.
73KB’s ability to provide instrumental care to W is not in issue. The possibility of harm arises from two key areas of concern: the nature of KB’s current involvement with the criminal justice system and her relationship with OA.
74W is a very young and vulnerable child. Given his age and stage of development, he is dependent upon his caregiver to meet all his needs.
75The criminal charges KB is facing are very serious; they involve the making of child pornography.
76The photographs which form the foundation of KB’s charges are quite concerning.
77KB’s scant evidence regarding the photographs and the circumstances around their taking, does not allow me to consider that notwithstanding the nature of the charges and the content of the pictures, there is no risk of harm. I appreciate KB was advised to say very little because of her outstanding criminal charges; this does not negate the need for the court to receive necessary and relevant evidence.
78KB says that in the photograph that shows her and OA engaging in sexual activity, T is in the background, and she was not aware of his presence. At best, KB’s explanation of the photograph establishes a significant lapse in judgment which, in and of itself, is very concerning, and creates risk of harm. W needs a caregiver with awareness about child-focused conduct, particularly given that he is non-verbal.
79While KB acknowledges that her criminal charges are serious, she also attempts to minimize their significance:
(a) She submits that only one photograph showed her having oral sex with OA while T was present. I find that the other photographs provide relevant context;
(b) She further argues that the photograph is dated and prior to W’s birth, and that no harm has come to W. The photograph is not that old and the burden on the Society at this stage does not go as high as showing that there is an actual risk.
80I am also quite troubled by the fact that KB recently (after their separation) advocated for OA to have virtual access. I appreciate that she values the importance of W having a meaningful relationship with his father, although I am not satisfied that virtual access will assist with this, given W’s young age and stage of development. I also acknowledge that in her affidavit, she states that his parenting time should be supervised until the Society or the court deems that he does not pose a risk. However, KB’s recent request raises real concern as to whether she has a sufficient appreciation of the seriousness of the current situation and the risks associated therewith. OA is facing multiple, extremely serious criminal charges, including those related to child pornography. It is perplexing that in this context she would be of the view that virtual parenting time is appropriate, given the evident uncertainty as to whether it can be guaranteed that he would not record (audio or video) or photograph his interactions with W.
81With respect to KB’s and OA’s relationship, there are indicators that it was an unhealthy relationship, and that OA was controlling of KB. The relationship has just very recently ended. KB is in the very early stages of addressing the negative aspects of their relationship in counselling. I am not convinced that KB has sufficiently disconnected herself from OA (her advocating for him to have virtual parenting time, post break-up illustrates this) and that she has yet developed the necessary skills to withstand any control he may exert. OA’s influence may involve issues relating to W. Given the seriousness his criminal charges and W’s young age, it is imperative that W’s primary caregiver have a demonstrated ability to be consistently and meaningfully impervious to OA’s influence. At this time, KB has not sufficiently demonstrated this skill.
82Second, W cannot be adequately protected by terms and conditions of an interim supervision order, if placed with KB.
83As outlined above, the nature and degree of the current risk in this case is significant. Much remains unknown with respect to what transpired. KB presents as not fully appreciating the significance of the circumstances. It is early days in terms of KB receiving professional assistance which will hopefully assist her in gaining insight and addressing the issues that led to her behaviour which has resulted in criminal charges. CB’s involvement in KB’s plan does not allay these concerns.
84In addition, a supervision order requires that there be an open and honest relationship between the caregiver and the Society. I acknowledge KB’s (and OA’s) follow through with prior directions and current court orders. However, there are significant issues with respect to KB’s sharing of relevant information with the Society worker which leads me to conclude that such an order would not be an effective instrument of risk management if W was placed in KB’s care:
(a) KB did not tell Ms. Perkovic that she and OA were separated; Ms. Perkovic had to learn this highly relevant information from reading KB’s affidavit, prepared months after they separated.
(b) KB did not readily return executed consents that are directly related to the child protection concerns.
85In terms of next steps, it is encouraging that KB is engaging in the therapeutic process with Ms. Amerongen and that she is noted to have a positive attitude towards treatment. KB is in the very early stages of counselling. There are many serious and difficult issues for her to address. Not much is really known about the nature of the counselling (including why certain recommendations were made), KB’s level of engagement and insight into the issues, and the success of the interventions. This is due, in part, to the general nature of KB’s evidence and the lack of signed consents for the Society to glean more details, but more significantly because time is required for the counselling to progress. The issues in this case don’t lend to quick fixes. Given the nature of the concerns, the court may require a detailed assessment of KB before it can consider placement of W with her, with or without terms of supervision. The need for and the nature of prospective professional evidence will most properly be the subject of further case management attendances, as more information regarding the charges and the surrounding circumstances becomes available.
86Next, given that I am not prepared to return W to his pre-intervention caregiver, I must determine whether it is in W’s best interests to be placed with CB, subject to Society supervision. I find that it is. CB has demonstrated an ability to meet all of W’s needs. The terms of supervision requested are proportionate and address specific risk concerns.
87With respect to KB’s request that she have unsupervised parenting time with W, to include some unsupervised time in the community, I first note that such an order would be contradictory to the existing Release Order. Even if there was a variation of the Release Order to permit this type of unsupervised access, I would not order it because I do not find it is appropriate, as it is not in W’s best interests to have any unsupervised access with KB.
88In reaching this conclusion, I rely on my analysis above regarding placement.
89KB submits that unsupervised access is required to ensure that she gets to spend quality time with W, so that she can bond with him on a personal, one-on-one level, and their relationship can grow. Given W’s young age, without professional evidence to corroborate this statement, I am not prepared to accept it. KB is permitted to reside with CB and W. There is no restriction on the duration and frequency of her parenting time, save that a supervisor must be available. Many alternate supervisors have been approved by the Society. There is no specific evidence that the availability of a supervisor has limited her ability to have meaningful time with W. KB is primarily responsible for meeting W’s needs (supervised). There are a lot of opportunities for KB and W to maintain and develop their emotional ties. KB has advised that her relationship with W continues to thrive and that he continues to be very attached to her. Given this, there is no evidence that the current arrangement is having a detrimental effect on their bond.
90With respect to OA’s request that in addition to his in-person weekly supervised parenting time, he have supervised virtual or telephone access, I find that such access is not appropriate, as it is not in W’s best interests.
91I acknowledge the positives with respect to W’s connection with OA, that access has been positive, the financial challenges associated with attending supervised access in Smith Falls, the importance of a parent having frequent access with young children, and there is no evidence that OA has breached his Release Order or the existing supervision order.
92However, the criminal charges OA is facing are very serious; they involve multiple charges of making child pornography and possessing child pornography.
93Given the nature of his criminal charges, the risk in relation to virtual access is heightened. I am not satisfied that virtual access can occur safely, that it won’t be recorded (audio or video), and that photographs will not be taken. OA has not provided a concrete plan to allay this concern.
94Also, the evidence does not establish that telephone access is in a 16-month olds’ best interests. The court doesn’t make orders based on a ‘what’s the harm’ analysis, but upon a consideration of the best interests factors contained in the CYFSA.
95An order that provides that the location, duration, and frequency of access is in the Society’s discretion will permit the agency the opportunity to increase OA’s Tuesday visits (if a longer period of time is in W’s best interests) and add another day of in-person supervised parenting time (if the issue with respect to the cost of transportation can be addressed).
Part 5 – Order
- A temporary, with prejudice order shall go per paragraphs 1 and 2 of the Society’s Notice of Motion date November 10, 2023.
- This matter shall be adjourned to May 16, 2024 at 10:00 a.m. for a Case Conference. This shall be a Zoom attendance.
- Briefs shall be required and shall be served pursuant to the Family Law Rules. Briefs shall not exceed 8 pages in total, inclusive of attachments, and shall be prepared using 12 pt. font, 1.5 spacing.
- Confirmations shall be delivered per the Family Law Rules.
Released: March 20, 2024