WARNING

The court hearing this matter directs that the following notice should be attached to the file:

This is a case under Part III of the Child and Family Services Act and is subject to subsections 45(8) of the Act. This subsection and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply with subsection 45(8), read as follows:

45.— (8) 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.

85.— (3) A person who contravenes subsection 45(8) (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 File and Parties

Court File No.: 77/03 Date: 2012-02-29 Ontario Court of Justice

Between:

Windsor-Essex Children's Aid Society, Applicant,

— and —

E.T. and G.M., Respondents.

Before the Honourable Justice Barry M. Tobin

Heard on: February 23, 2012

Counsel:

• Mark Hurley, for the applicant Society
• Lisa Labute, for the respondent, E.T.
• Patricia Kondruk, agent for the respondent, G.M.

TOBIN J.:

ENDORSEMENT

[1] The Society moves, under the Child and Family Services Act ss. 64(8), for an order placing the child S.M., born […], 2010, in the care of her father the respondent, G.M., subject to Society supervision and access to the child's mother, the respondent E.T.. The father supports the Society's position. The mother does not. She asks that the child be placed in her care.

THE ORDER NOW IN FORCE

[2] On September 2, 2011, Bondy J. found the child was in need of protection under subclause 37(2)(b)(i) of the Child and Family Services Act. It was ordered that the child be placed in the care of the respondent parents subject to supervision by the Society for a period of six months and subject to terms and conditions.

[3] The endorsement with respect to the finding states as follows:

[1] The Agreed Statement of Facts filed before me is very unclear as to exactly how the child S.M. is at substantial risk of physical harm while in her parents' care save and except that previous psychological findings of Dr. McGrory opined that [the mother] experiences serious parenting deficits, leading to a finding of crown wardship for her three (3) younger children but recommended a return of her two (2) older children to her care.

[2] Assessment findings...on [the respondents] were positive and agreed with a plan that [the parents] co-parent their new child. [The mother] presents with significant hearing difficulties affecting language comprehension and problem solving skills. Throughout 2011, [the mother] and [the father] separated for a time and she demonstrated symptoms of a major depressive disorder with psychotic symptoms.

[3] What is not before this court, however, is a specific incident that this child was either harmed or at specific risk of physical harm other than the risk factors that have been identified by the assessment and [the mother's] position. Nonetheless, the parties have agreed to the finding before me and having reviewed the Plan of Care and Terms of Supervision, I am satisfied with the order sought.

THE PARENTS SEPARATE

[4] Subsequent to the order being granted, the parties cohabited with the child and the mother's children; M.T.G., born […], 2001, and S.T.G. (sic), born […], 2002. M.T.G. and S.T.G. are in the care of the mother subject to supervision of the Society pursuant to an Order made by Phillips J. dated December 2, 2010. The record does not contain any information explaining why M.T.G. and S.T.G. are in the mother's care subject to supervision.

[5] During the fall of 2011, the relationship between the mother and the father deteriorated.

[6] The father was of the view that the mother was not taking medications prescribed to her by her psychiatrist. However, the psychiatrist advised the Society worker by letter that the mother met with the doctor on November 22, 2011. The doctor reported that the mother presented as calm, appropriate and coherent. There was no evidence of depressive, manic or psychotic symptoms. The doctor expressed the belief that it would be reasonable to allow the mother to care for the children without supervision at that time. The doctor also suggested that it would be worthwhile to ask that the respondent father dispense and monitor her medication intake in the meantime.

[7] The mother claims that the father is extremely controlling and if he does not get his own way he uses force in order to get her or the children to follow his will.

[8] While the parties cohabited, the father worked on a full-time basis – 40 hours per week on a day shift – outside of the family home.

[9] The mother was the parent at home caring for the subject child on a full-time basis and for S.T.G. and M.T.G. when they were not in school. The mother deposes that while the father was at work during the daytime, she met all of the child's needs with little or no assistance from the respondent. She was the one who had the child on a schedule, took her to doctor's appointments and worked with Healthy Babies.

[10] The parties separated on or about December 27, 2011. The father took the child and began residing with her at the home of his parents. This was an act of self-help. The evidence does not disclose that there was an urgent reason for the father to remove the child from their home.

[11] Where one parent leaves home with a child, without proper cause, that does not entitle that parent to establish a status quo in order to defeat another parent's custody rights. One of the principles that a court must sustain in these circumstances is to discourage self-help and to encourage the parties to put the matter before a judge if they cannot resolve custody and access issues between themselves. See LiSanti v. LiSanti (1990), 24 R.F.L. (3d) 174 (Ont. Fam. Ct), and Howard v. Howard (1999), 1 R.F.L. (5th) 375 (Ont. S.C.J. (Fam. Br.)). These principles, enunciated in custody cases, should also apply in cases under the Child and Family Services Act: See Children's Aid Society of Toronto v. A. (S.), 2008 ONCJ 348. In cases where the Society is involved with parents and their children, the children should not be unilaterally removed from their home by one parent in order to gain a strategic advantage regarding placement.

[12] After the separation there continued to be conflict between the parties in relation to the residence of the child. The police were contacted as a result of this conflict.

[13] The father used his advantage in having the child in his care to severely restrict the circumstances under which the mother could have access with the child.

[14] The Society supports the placement of the child with the father on a temporary basis because the home in which the father lives with the child is a more stable one than the one in which the mother resides. He has the assistance of his parents in caring for the child.

[15] Following the separation and the father moving with the child to his parents' home, the mother with M.T.G. and S.T.G. moved to her mother and step-father's home.

THE MOTHER'S PLAN

[16] On the evidence, it would appear there are approximately nine people residing in the mother's parents' home including the mother, M.T.G. and S.T.G.. The mother's stepfather is elderly and as a result of a stroke is disabled. The maternal grandmother requires the assistance of a relative to physically care for her husband.

[17] The mother and her two children are not settled in the home of her mother and step-father. S.T.G. and M.T.G. have missed many days of school. A family well-being worker was involved to assist the mother with developing and maintaining a routine and stable home environment in the home of her parents but there have been no improvements at this time.

[18] The mother has deposed she will be moving into new premises on March 1, 2012. She found a four bedroom home with a finished basement to move into. She plans to reside there with her parents, her brother James and the children. Her plan would be for her to sleep in the finished basement. This is where the child's crib would be set up.

[19] The father supports the Society's position that the mother's home is chaotic and that it would not be in the best interest of the child to reside there. The father also argues that mother's stepfather poses a risk to the child in that he had sexually abused the mother a number of years ago.

[20] The mother deposed that the Society investigated sexual abuse allegations related to her and her stepfather sometime in the late 1990s. No charges were laid against him. She further deposed that her stepfather is almost 60 years of age. He has serious health problems, including having had a stroke and cancer. He is blind and uses a walker to get around. He requires help to get to the kitchen or to move around the house. He would not be able to harm the mother or the children as he cannot get out of bed or walk around the house without others helping him.

[21] In addition to discounting the arguments made by the Society and the father, as set out above, the mother's position is that she has been the primary care giver of the child. The child has a close and loving bond with her as well as her siblings S.T.G. and M.T.G.. She argues they should remain together.

[22] At present, the child is cared for by the respondent's parents while he is at work. The mother has the child in her care Monday, Wednesday and Thursday of each week from 4:00 p.m. until 7:00 p.m. at the home of her mother. In addition, the child is in her care alternate weekends from Friday at 4:00 p.m. until Sunday at noon, also at the home of her mother.

DECISION

[23] Subsection 64(8) of the Child and Family Services Act, is formulated as follows:

If an application is made under this section, the child shall remain in the care and custody of the person or Society having charge of the child until the application is disposed of, unless the court is satisfied that the child's best interests require a change in that child's care and custody.

[24] The original order placed the child in the care of both parents. They have now separated.

[25] In Children's Aid Society of Algoma v. S. (S.) 2010 CarswellOnt 6012 the court considered the meaning of the phrase "a change in the child care and custody" found in ss. 64(8). At paragraph 18 of the decision, the court stated:

18 The words "a change in the child's care and custody" does not necessarily mean a change of the person who is to have interim care and custody. It could mean such a change, but these words are sufficiently broad to permit the court to make an order that leaves the child in the same placement, but changes some of the aspects of the existing order that deal with care or custody. Generally, these would involve the terms and conditions of any supervision order in effect.

[26] I must consider what is in the best interests of the child have regard to separation of the parents. She is 14 months of age and has closely bonded with her mother and her siblings. The child requires a calm and stable residence with predictable routines.

[27] At this time, the respondent mother is unable to provide the calm environment that the child needs. The home in which she resides with her mother, stepfather and extended family members is a busy one where routine does not appear possible at this time. The assistance of a family well-being worker has not yet been able to assist the mother in developing and maintaining a routine and stable home environment. This may very well change should she move in the near future to larger premises with fewer people.

[28] As the mother has been the primary caregiver of the child, with the assistance of the father and services recommended by the Society, she should continue to play an active and significant role in the child's upbringing.

[29] The father's act of self-help should not be the basis of the reduction of her involvement with the child nor put her at a disadvantage by reason of not being a person who has "charge" of her. The parents had joint "charge" of the child following the making of the supervision order on September 2, 2011. I find that they shall continue to have joint "charge" of the child notwithstanding the father's act of self-help.

[30] The child should be in the care of the mother more often than she is at this time and in circumstances where the risk to the child by being in her maternal grandmother's home is addressed.

ORDER

[31] For these reasons, a Temporary Order shall issue changing the Order of the Honourable Justice Bondy, dated September 2, 2011, to provide that the child S.M. born […], 2010 be placed in the temporary care and custody of the respondent father G.M. and the respondent mother, E.T., subject to supervision by the Windsor Essex Children's Aid Society pending further order of this court, pursuant to ss. 64(8) of the Child and Family Services Act, and subject to the following terms and conditions:

1. The child shall reside in the care of the respondent mother every Monday, Wednesday and Thursday from 1:00 p.m. until 7:00 p.m. and on alternating weekends from Friday at 4:00 p.m. until Sunday at 4:00 p.m. or Monday at 4:00 p.m. if the Monday is a Statutory Holiday. Notwithstanding anything else contained in these terms, the child shall be in the mother's care on the Mother's Day weekend from Friday at 4:00 p.m. until Sunday at 4:00 p.m.

2. The child shall reside in the care of the respondent father at all other times she is not in the care of the respondent mother as provided for in para. 31¶1 above. Notwithstanding anything else contained in these terms, the child shall be in the father's care on the Father's Day weekend from Friday at 4:00 p.m.

3. The child shall reside in the County of Essex during the course of the order, and neither respondent shall change the residence of the child from the County of Essex without further order of the court.

4. Both respondents shall ensure that the Society is provided with up-to-date addresses and telephone numbers where they can be reached at all times, and shall notify the Society at least 14 days prior to any change of address or telephone number.

5. Both respondents shall allow the Society worker scheduled and unscheduled access to their respective homes and to the child, and shall permit the worker to meet with the child both in their presence and in private.

6. Both respondents shall sign any and all releases of information forms reasonably necessary to monitor the terms of the supervision order.

7. Both respondents shall ensure that the child has prompt and regular medical attention and shall follow through with any recommendations made by the physician. The mother and the father shall be entitled to attend at the child's medical appointments and shall inform the other of all appointments. The parent in whose care the child is in at the time of a scheduled medical appointment shall be responsible for taking her there. The Society shall be notified of all medical appointments.

8. G.M. shall attend a Society approved parenting support program in order to learn how to appropriately meet and promote the health and developmental needs of the child and shall follow through with the recommendations made by the service provider.

9. G.M. shall ensure that at no time is physical discipline being used on the child under any circumstance and only positive parenting techniques are utilized.

10. G.M. shall ensure that the child is not exposed to domestic violence or adult conflict.

11. G.M. shall reside with his parents while this order is in effect.

12. G.M. shall attend for counselling through Hiatus House or other Society approved agency to address the domestic violence concerns and relationship issues.

13. E.T. shall attend a Society approved parenting support program in order to learn how to appropriately meet and promote the health and developmental needs of the child and shall follow through with the recommendations made by the service provider.

14. E.T. shall not use physical discipline or threat thereof on the subject child.

15. E.T. shall ensure that the child is not exposed to domestic violence or adult conflict.

16. E.T. shall continue to attend with and follow all recommendations of her treating psychiatrist, Dr. G. Villella.

17. E.T. shall attend for counselling through Hiatus House or other Society approved agency to address the domestic violence concerns and relationship issues.

18. E.T. shall reside with her mother while this order is in effect.

19. E.T. shall not allow her step-father L.B., to be in a caregiving role to the child.

[32] The application is adjourned to a date be fixed by the trial coordinator before the case management judge.

Released: February 29, 2012

Barry M. Tobin Justice