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 one or more of subsections 48(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:

45.— (7) Order excluding media representatives or prohibiting publication.

The court may make an order,

(c) prohibiting the publication of a report of the hearing or a specified part of the hearing,

where the court is of the opinion that . . . publication of the report, . . ., would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.

(8) Prohibition: identifying child.

No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.

(9) Idem: order re adult.

The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

85.— (3) Idem.

A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Court Information

Court File No.: C56380/12

Date: 2012-05-03

Ontario Court of Justice

Toronto North Family Court

Parties

Between:

Catholic Children's Aid Society of Toronto

Marshall Matias, for the Applicant

Applicant

- and -

J.O.1 and J.P.

Respondents

Sharon Worthman, for the respondent, J.O.1 Subha Anand, for the respondent, J.P.

Heard: April 30, 2012

Justice: S.B. Sherr

Endorsement

Part One – Introduction

[1] The Catholic Children's Aid Society of Toronto (the society) seeks an order placing the child, J.O.2 (the child), born on […], 2012, in their temporary care and custody with access to the child being in their discretion.

[2] The respondent J.O.1 (the mother) is the mother of the child. She seeks an order placing the child in her temporary care and custody. She is agreeable to an order of supervision by the society. In the alternative, she seeks an order that the child be placed with her parents (the maternal grandparents), subject to society supervision.

[3] The father supports the mother's position. He asks for temporary access to the child. He is content that his access be supervised at the society's office.

Part Two - Background

[4] The mother is 18 years old. The father turns 26 years old on May 3, 2012.

[5] The mother left her parent's home in June of 2011 and moved in with the father. She lived with him until December 12, 2011, when she moved into Rosalie Hall, a maternity home for young mothers.

[6] The society was first contacted about the mother on February 3, 2012 by staff from Rosalie Hall. The society was told that the mother had limited supports and was due to give birth on March 16, 2012. They were told that the father had assaulted the mother the day before. The mother was suffering soreness to her jaw where she had been hit by the father with a telephone. The society was told that this was not the first time that the father had hit the mother while she was pregnant. The mother did not want to call the police. The society was told that the mother had no prenatal care prior to coming to Rosalie Hall, but was now connected with medical care. The staff at Rosalie Hall reported concern about the mother's eating habits.

[7] The society worker met with the mother on March 7, 2012. She told the society that she was still spending time with the father, including overnights and didn't see the problem with this.

[8] The society worker subsequently met with staff at Rosalie Hall. They advised her that:

a) The mother had told them that she had been physically, emotionally and verbally abused by her parents, the father and his family. She had shared with them numerous details of assaults on her by the father.

b) The mother had difficulty retaining information.

c) They were concerned about the mother's choices.

d) They had concerns about the mother's hygiene, lack of positive self-esteem and lack of supports in her life.

e) They were concerned about the safety of the child in the mother's care and did not believe that they could provide the one-on-one support the mother would require if the child remained in her care.

[9] The child was apprehended from the mother's care at the hospital on […], 2012.

[10] On March 28, 2012, Justice Marvin Zuker made a temporary without prejudice order placing the child in the care of the society, with access to the respondents in the society's discretion, a minimum of twice per week.

[11] The matter has subsequently been adjourned twice at the request of the respondents.

[12] The mother has been living with the maternal grandparents since she was discharged from the hospital after the child was born.

[13] The temporary care and custody motion was argued on April 30, 2012. I read and relied on two affidavits from the society worker, Erika Reicher, the mother's affidavit, and affidavits from both of the maternal grandparents.

Part Three – The Law

[14] The legal test for me to apply on this motion is set out in subsections 51(2), (3), (3.1) and (3.2) of the Child and Family Services Act (the Act) that read as follows:

Custody during adjournment

51 (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,

(i) a place of secure custody as defined in Part IV (Youth Justice), or

(ii) a place of open temporary detention as defined in that Part that has not been designated as a place of safety.

Criteria

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

Placement with relative, etc.

(3.1) 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

(3.2) 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.

[15] 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 that there is a real possibility that if a child is returned to the respondents, it is more probable than not that he or she will suffer harm. Further, the onus is on the society to establish that the child cannot be adequately protected by terms of conditions of an interim supervision order. See – Children's Aid Society of Ottawa-Carleton v. T.. Simply stated, this is a two-part test that the society has to meet.

[16] A court must choose the order that 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.

[17] It is important not to judge a parent by a middle-class yardstick, one that imposes unrealistic and unfair middle-class standards of child care upon a young mother, provided that the standard used is not contrary to the child's best interests. Children's Aid Society of Toronto v. B.-H.(R.), 2006 ONCJ 515.

Part Four - Analysis

4.1 Placement with the Mother

[18] I had no difficulty finding that the society met the first part of the two-part test to keep the child in care. There are reasonable grounds to believe that there is a risk that if the child is returned to the mother that the child is likely to suffer harm.

[19] This very young mother's life has been chaotic in the past year and she has made several poor choices. She had a difficult relationship with her parents and left home. She entered into an abusive relationship with the father. She could not extricate herself from this relationship and continued to see him after several assaults while she was pregnant. She demonstrated little insight prior to society intervention of the risk this poses to the child. There are legitimate concerns about her judgment, as well as about her ability to care for herself, let alone a vulnerable baby.

[20] I find that supervision terms would be inadequate to protect the child if he was placed in the sole temporary care of the mother. At this stage, it is questionable whether she has achieved sufficient stability to stay away from the father and make sound decisions.

4.2 Placement with Relative

[21] The next step is to determine whether it is in the best interests of the child, before making an order placing him in society care, to make an order placing him in the care and custody of a relative of the child or a member of the child's extended family or community.

[22] The mother presented an alternate plan that she would continue to live with the maternal grandparents and together, with the child's great-grandmother, they would share in the care of the child. She was agreeable, if necessary, to an order that the child be placed in the care and custody of the maternal grandparents. The mother is prepared to have no contact with the father, go for psychiatric and psychological testing and to fully cooperate with terms of society supervision. She is prepared to attend parenting classes and go to counseling.

[23] The mother denied telling anyone that any of her family members had ever physically abused her. She did admit that she told staff from Rosalie Hall that her family had emotionally abused her. She explained that she felt frustrated at the time by the strict rules of her parents. She explained that she comes from a traditional Nigerian family and her parents were disappointed by her pregnancy. She said that they disapproved of her relationship with the father and wanted her to raise the child with them at home. She admitted that she rebelled against them and made a poor decision leaving home because of these disagreements. With the benefit of hindsight, she deposed that she now realizes that her parents were only acting in her best interests and trying to help her and the child.

[24] The maternal grandfather is 53 years old. He is a critical care nurse who has been employed by York Central Hospital for the past twelve years. The maternal grandmother is 47 years old and is a personal care worker who has been employed at Spectrum Health Services for the past twelve years. They both deposed that they have flexible work schedules and that one of them should be available to care for the child most of the time. The maternal grandparents have five children, including the mother. The children (other than the mother) are ages 22, 13, 11 and 8 and live with them, as does the child's great-grandmother and a family friend.

[25] The maternal grandmother deposed that she and her husband are unequivocal in their desire to help the mother raise the child. They are prepared, if necessary, to have the child placed in their care. She said that the mother has her own room, the baby's crib is already set up and she has all of the supplies that the child would need. She said that their home has eight bedrooms and is suitable for the mother and the child. She stated that the mother is happy to be home and they are getting along well.

[26] The maternal grandfather deposed that neither he nor his wife knew about the father's physical abuse of the mother until after the child was apprehended.

[27] The society believes that it is not in the child's best interests to be placed with the maternal grandparents—they believe the risk of harm to the child is too high. They are concerned about the report from Rosalie Hall that the mother said that she was emotionally and physically abused by her parents. They are legitimately worried that it could be emotionally harmful for the child to be exposed to arguments and fighting in the home.

[28] The society is also concerned because they have had prior involvement with the maternal grandparents due to allegations of physical abuse against their children as follows:

a) The society opened a file in 2006 concerning the mother. The mother disclosed that the maternal grandparents had hit her with their hands and a belt. This was confirmed to the society by the mother's siblings. The maternal grandparents expressed frustration about the mother's behaviour to the society worker. The family was referred to counseling and the file was closed in March of 2007.

b) The society opened a second file in January of 2008, when the mother's sibling, age 8 at the time, alleged that he had been hit with a belt by the maternal grandfather. Two of the siblings told the society worker that the maternal grandfather had hit them with a belt a few years earlier, but that this had been the first and last time that he had hit them. The society closed their file in April of 2008.

[29] The maternal grandparents denied physically abusing any of their children.

[30] The society also raised a concern that the maternal grandparents, due to their work schedules, would not be available to care for the child. They did not believe that the mother's grandmother (age 74) could control the mother, if, for instance, she chose to see the father with the child.

[31] While the society has produced evidence of some risk to the child if he is placed in the maternal grandparents' home, I find that the evidence of risk isn't sufficient to keep him in society care.

[32] I find that the child can be adequately protected by terms of supervision (and it is in his best interests), if he is placed in the joint care and custody of the mother and the maternal grandparents, subject to strict terms of supervision, for the following reasons:

a) The evidence indicates that the maternal grandparents have been competent caregivers for their children. Although the society raised concerns about physical discipline, they chose to close their file both times. They have not been involved with the family since 2008. The evidence presented by the society, if accepted, points to sporadic use of physical discipline by the maternal grandparents. There is no evidence of physical discipline ever being used on infants. This protection concern can be met by a supervision term that no one is to use physical discipline on the child or on the mother.

b) The society led no evidence that any of the maternal grandparents' children, with the exception of the mother, have struggled in school or have behavioural issues. They all appear to be functioning well. No issue was raised about the maternal grandparents' ability to look after the instrumental needs of any of their children.[1]

c) The maternal grandparents are both in the health-care field. They are experienced parents who should be able to identify the child's needs, address them, and be positive parenting mentors for the mother.

d) The maternal grandparents satisfied me that they have sufficient flexibility in their work schedules to ensure that they can be available at most times to assist the mother in caring for the child.

e) There is a real possibility that the conflict between the mother and the maternal grandparents was situational. This is a traditional Nigerian family. It was jarring to the maternal grandparents to learn that their teenage daughter was pregnant and wanted to live with her older boyfriend. The mother demonstrated some insight in her affidavit stating that she was rebelling, made poor decisions and that she now appreciates that her parents were just looking out for her best interests. While it has been a short period of time, the society did not rebut the evidence that the relationship between the mother and the maternal grandparents has improved since she returned home.

f) The mother and the maternal grandparents presented a well-considered plan. They have set out how their schedules will be coordinated. They have appropriate baby equipment and supplies. They have appropriate accommodation.

g) The mother and the maternal grandparents demonstrated some insight by acknowledging that services will be needed to assist them. All too often, caregivers just want the society to leave them alone and parenting improvement is stalled. That is not the case here. The mother is willing to go to parenting courses and counseling. She certainly needs counseling to address the domestic violence issues and the chaos in her life during the past year. The mother has said that she is willing to undergo testing to determine if she has any cognitive limitations or has depression. The maternal grandparents are also prepared to participate in counseling. The mother and the maternal grandparents both indicated their willingness to cooperate with society supervision. No evidence was presented that would cause me to doubt their sincerity.

h) No evidence was presented that there have been any difficulties during access visits since the child came into society care. On temporary care motions, Children's Aid Societies commonly raise issues about a parent's access visits including: a parent's lack of attendance or punctuality, problematic attachment between the parent and the child, inability of the parent to focus on the needs of the child, lack of parenting knowledge, a parent's inability to accept parenting direction and the hostility of a parent towards the society on access visits. None of these issues were raised here.

i) The child is healthy and does not have special needs that require a specialized skill level of parenting.

j) The family satisfied me that the maternal great-grandmother could successfully monitor the mother.

k) I was impressed with the family's commitment to care for the child. The courtroom was filled at each appearance with family members and friends supporting the mother. All too often, young parents are isolated in child protection cases. This is not the case here.

l) The mother has unequivocally stated that she will have no contact with the father. She did not minimize his violent behavior. She is willing to go to counseling to support her ability to stay away from him.

m) The mother and her family have received a considerable scare by the apprehension of the child. They appear to be highly motivated to ensure that this not happen again.

n) I have given consideration to the importance to the child of being raised by his own family and in his own culture.

o) An order placing the child in the joint care of the mother and the maternal grandparents is warranted as it sends clear messages that:

i) The maternal grandparents are responsible for the child's welfare. They are not merely supports for the mother.

ii) The child's home will be the home of the maternal grandparents. The mother is not free to move with the child.

iii) The mother also has an important care-giving role and should be involved with all aspects of child-care.

iv) It is important for the mother and the maternal grandparents to work together to ensure that the child is raised in a safe, secure and predictable environment that is free of high conflict.

p) I have considered that this is the least disruptive alternative consistent with the adequate protection of the child.

[33] Due to the protection concerns set out, it is necessary to start with strict supervision terms to ensure the protection of the child. At this point, one of the maternal grandparents or the maternal great-grandmother must be present at all times with the child. The mother cannot leave the home with the child without one of these persons present. If the mother is able to engage in counseling and show that she can stay away from the father, this restriction can be relaxed as we proceed in this case. The mother and maternal grandparents will be required to engage in family counseling. The society is requested to assist them in finding a culturally sensitive counselor. The mother should attend a parenting course and engage in domestic violence counseling.

[34] An important term of this supervision order will be that the mother is to have no contact with the father and immediately report to the society if he contacts her.

[35] It might be useful for the mother to obtain a psychiatric assessment to determine if she suffers from depression and to obtain psychological testing to determine if she has cognitive limitations and what supports could be put in place to assist her. However, the society has not provided a sufficient evidentiary basis at this point to make these terms of supervision. The staff at Rosalie Hall did express concern to the society about the mother's cognitive functioning and possible depression; however few details were presented to substantiate these concerns. The mother graduated from high school and deposed that she is shy with strangers and that she has no cognitive limitations. The society provided no evidence about their observations about the mother's functioning that might corroborate the concerns expressed by the staff at Rosalie Hall. If an agreement is not reached between the parties about such assessments, the appropriate procedure is for the society to move for an assessment pursuant to section 54 of the Act, with evidence in support of the request.

[36] This supervision order is based on the understanding that the maternal grandparents will put the interests of the child ahead of the mother's. They will also have an obligation to immediately notify the society if the mother has contact with the father. They should be aware that such contact doesn't necessarily mean that the child would have to come into care. It just might mean that further steps will need to be taken to ensure the protection of the child. Their failure to notify the society if the mother does have contact with the father will be viewed as a serious breach of the order as it will mean that they can't be trusted to comply with the necessary terms of supervision that are being put into place to protect the child. It would be a signal to the court that they are putting their daughter's interests ahead of the child's.

4.3 Access

[37] The parties agreed that the father's temporary access would be supervised by the society, supervised at their office. At this point, the visits should not exceed once each week.

Part Five - Order

[38] A temporary order shall go on the following terms:

a) The child shall be placed in the joint care of the mother and the maternal grandparents, subject to society supervision.

b) The father's access shall be supervised by the society at their office and not exceed one visit each week.

c) The terms of supervision are as follows:

1. The child shall reside at the home of the maternal grandparents.

2. The mother shall not be left alone with the child. One of the maternal grandparents or the great-grandmother is to be present at any time the mother is caring for the child. However, it is not necessary, while at home, for one of these persons to be in the same room at all times with the mother and the child.

3. The mother shall not leave the home with the child without one of the maternal grandparents or the great-grandmother with her.

4. There shall be no physical discipline of the child.

5. The maternal grandparents are to use no physical discipline on the mother.

6. The mother and the maternal grandparents are to ensure that they do not engage in arguments in the presence of the child.

7. The mother is to have no contact with the father.

8. The mother is to immediately notify the society if the father contacts her.

9. The maternal grandparents are to immediately notify the society if they learn that the mother has had contact with the father.

10. The mother and the maternal grandparents are to permit scheduled and unscheduled visits by the society worker.

11. The mother and the maternal grandparents shall sign all necessary directions and authorizations to permit the society to speak to service providers for the child.

12. The mother is to participate in domestic violence counseling.

13. The mother and the maternal grandparents shall participate in family counseling.

14. The mother shall attend a parenting course dealing with child development for infants.

15. The parties and the maternal grandparents shall immediately notify the society if they change their address or telephone number.

[39] The next appearance will be for a case conference to review the mother's progress and to explore the possibility of a settlement.

Justice S.B. Sherr

Delivered orally: May 3, 2012

[1] Instrumental needs of children include their cleanliness, nutrition and health.