WARNING
The court hearing this matter directs that the following notice be attached to the file:
This is a case under Part III of the Child and Family Services Act and is subject to one or more of subsections 48(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:
45.— (7) Order excluding media representatives or prohibiting publication.
The court may make an order:
(c) prohibiting the publication of a report of the hearing or a specified part of the hearing,
where the court is of the opinion that publication of the report would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.
45.— (8) Prohibition: identifying child.
No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.
45.— (9) Idem: order re adult.
The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.
85.— (3) Idem.
A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
Court Information
Ontario Court of Justice
Court File No.: Sault Ste. Marie 55/03
Date: 2013-11-26
Between:
Children's Aid Society of Algoma, Applicant
— AND —
M.M. and M.A., Respondents
Before: Justice John Kukurin
Heard on: November 8, 2013
Reasons for Judgment released on: November 26, 2013
Counsel
A. Marrato — counsel for the applicant society
E. McCooeye — counsel for the respondent M. Morine
O.K. Lawson — OCL Counsel for the child Keenan Andreola
KUKURIN J.
Motions Before the Court
[1] There are three motions before this court to which these Reasons relate.
[2] The motion at Tab 16, Volume 5, brought by the mother, seeks to add her partner, K.W. as a party respondent. He qualifies as a statutory party under section 39 of the Child and Family Services Act (the Act). Pursuant to the definition of "parent" in paragraph (d) of section 37(1) of the Act, K.W. has demonstrated a settled intention to treat the child K.A. as a child of his family for several years, much longer than the 12 continuous months set out in the statute. He should be added as a party.
[3] The society's motion at Tab 8, Volume 5, seeks an interim order placing the child K.A. in the temporary care and custody of the society. Indeed, a "without prejudice" temporary care and custody order was made on this motion on August 21, 2013 and remains in effect. However, the society has a superseding motion at Tab 10, Volume 5, seeking temporary care and custody in favour of the child's paternal grandparents (S.M and M.M2.). It is this latter relief that the society is pursuing. It indicates it will withdraw its motion at Tab 8 once the decision is made on the motion at Tab 10.
Background and History
[4] The history of the society's involvement is set out in an abbreviated form in Reasons released December 7, 2010 which relate to the mother's motion claim, at that time, for variation of interim maternal access. Since then, the child, now age 12 years, was returned to his mother M.M. by an order dated December 4, 2011. This term was pursuant to a supervision order with conditions, for 12 months. A year later, on December 12, 2012, the supervision order was terminated on consent.
[5] However, developments within the next six months prompted the society to start the current child protection application which was filed May 14, 2013. The claim in this new proceeding was for a six month supervision order, with the child remaining in his mother's care. The application seeks a finding that K.A. is a child in need of protection on grounds in clauses (b)(i), (b)(ii) and (g.1) of section 37 of the Act.
[6] A temporary care and custody order was made in favour of the mother on May 15, 2013, without prejudice, on a motion brought by the society (at Tab 2, Volume 5). This was subject to a supervision order with terms and conditions.
[7] On August 7, 2013, the "without prejudice" qualification was removed from this temporary care and custody order, on consent.
[8] On August 16, 2013, the society apprehended K.A. mainly on allegations made by K.W., the mother's partner, following an incident of domestic violence involving the mother and this partner. These allegations were supplemented by information the society obtained from the child.
[9] On August 21, 2013, a "without prejudice" order was made on the society's motion at Tab 8, Volume 5, varying temporary care and custody from the mother to the society. It also provided for interim maternal access.
[10] However, before a formal temporary care and custody hearing as mandated by section 51(2) of the Act could be heard, the society changed direction and brought its most current motion at Tab 10, Volume 5, seeking an order placing the child in the temporary care and custody of his paternal grandparents. The society's claim in this child protection application has since been amended by an order dated August 9, 2013. The present claim is now for placement with these grandparents subject to a six month supervision order with conditions, and for an order for maternal access, also with conditions relating to such access.
[11] The child, although technically in the temporary care and custody of the society, has been residing with the paternal grandparents with the society's approval. On the hearing before me, I declined to make any order changing the status quo pending my decision.
[12] The other recent developments have been an order dated August 21, 2013 appointing counsel for the child, from the Office of the Children's Lawyer (OCL), and the addition of K.W., the mother's partner, as a party respondent. Although K.W. was intent on living separate and apart from the mother M.M., at the time of apprehension, and was, in fact, intent on leaving town, they are now back together.
Positions of the Parties
[13] The mother opposes the temporary care and custody claims of the society. She wants K.A. back in her care pending a final determination in this child protection case.
[14] In the event she does not regain temporary care and custody, she wishes the court to make an order for not only maternal access, but also for access by the child with K.W., her partner. She also wishes that K.W. be permitted to attend her access visits with the child.
[15] To summarize, in the context of a temporary order, the mother wants the child back home with herself and her partner K.W., and seems to concede that some reasonable supervision order terms and conditions should apply. Should the child not be returned, she wishes specified access orders in favour of both herself and K.W., with provisions that both can attend together at access visits.
[16] The society wants, again on a temporary basis, an order giving care and custody to the paternal grandparents. It wishes the court to make the same order as to maternal access that is presently in place on a "without prejudice" basis. It has no formal position as to any access order involving K.W., but clearly wishes to have control over whether K.W. has any contact, and the restrictions on any such contact, including his presence during any maternal access.
[17] This essentially reflects what the parties want on a final basis as well, assuming a finding is made that the child K.A. is a child in need of protection.
Legal Test
[18] Section 51(3) provides the statutory test that the court must use in whether a removal order or a non-removal order is made with respect to the child. If the society does not meet both parts of the two-part test in section 51(3) of the Act, then the court can only make a non-removal order, and the child must be returned to his caregiver, his mother, M.M. The issue is whether the society has met this test.
Analysis: First Part of the Test
[19] I am satisfied that the first part of the test has been met. Although a great deal of the society's evidence is hearsay in nature, in the context of a temporary care and custody hearing, hearsay evidence is not inadmissible solely for that reason. Some of the society's allegations are denied or contradicted, or otherwise addressed, even at times, by other evidence of the society. There is very little actual sworn evidence from the mother, or from her partner K.W., and what there is provides very little by way of detail in response to the much more detailed evidence filed by the society.
[20] There is sufficient admissible evidence for me to have reasonable and probable grounds to believe that the child K.A. is likely to suffer harm if returned to the mother's care and custody at this point. I come to this conclusion for a number of reasons:
a) The April 19, 2013 incident is very disturbing even if half of what Jamie Bjornaa reported is discounted. The mother's behaviour throughout the night was very serious, out of control, and likely involved loss of consciousness, all with only her 12 year old son present. Her appearance and behaviour the next day were equally alarming.
b) The mother's relationship with K.W. may have spanned four years, including two years of cohabitation, but it was clearly significantly stressed, enough that K.W. left her in the spring of 2013 resulting in a period of separation.
c) Even though K.W. and M.M. got back together, there were still domestic problems between them that culminated in a domestic incident of violence on August 16, 2013 in the presence of the child K.A. This incident involved K.W. choking the mother, and the mother biting K.W.
d) This incident precipitated another separation of K.W. and M.M., with K.W. contacting the society and advocating that K.A. be apprehended rather than be returned to his mother. K.W.'s allegations again raised significant concerns about the mother's abnormal behaviour and level of functioning.
e) The evidence of the child's Ritalin is still somewhat confusing, but there is sufficient to conclude that the mother was not ensuring that K.A. was taking his prescribed dosage anywhere close to faithfully. Moreover, the evidence supports an inference that the mother had more Ritalin than the child consumed, including some she acquired well after he was apprehended, with no reasonable response from her by way of explanation. The Ritalin issue is confused and compounded by the fact that the mother also takes Ritalin on her own prescription.
f) The effects of the family functioning, or its dysfunctionality at times, has adversely affected the child. For one thing, his absences and tardiness at school when living with his mother are inadequately explained. He was clearly afraid to return home on August 16, 2013 because of his mother's condition and behaviours. He claims he was told by K.W. not to disclose to the society that K.W. had choked his mother. He was told by his mother not to speak with the society workers if they came to his school. At school, the school authorities had become increasingly concerned with his behaviour and performance. Most recently, he has been referred to Algoma Family Services for counselling and was accepted without the normal intake procedure. There have also been some self-harming behaviours on his part.
g) The mother's methadone clinic drug tests were positive for cocaine on October 7, 2013 and October 21, 2013, and were positive for benzoylecgonine (BZO – a metabolite of cocaine) on October 24, 2013. These dates are fairly recent. The explanation argued by the mother attempts to mitigate these results but does not explain them away. The letter from her psychiatrist/methadone clinic director predates these results. In addition, there is a positive BZO result on August 30, 2013 which the methadone clinic does not explain away adequately.
h) There is also the presence of K.W. to consider. Aside from his involvement in domestic discord with the mother, there is a further concern about his use of drugs. Reference was made to his smoking joints. More serious, is the mother's comments in April 2013 relating to her discovery that K.W. had been using drugs again. He has not submitted any hair strands for analysis. The evidence is not clear if he has formally refused to do so. He does have a prior history of drug use. While I am not convinced he is currently an active drug user, he adds to "risk".
[21] In summary, I find sufficient evidence to support the reasonable grounds of likely harm needed for the section 51(3) test.
Analysis: Second Part of the Test
[22] The second branch of that test is also met by the society. While the mother and her partner are now back together and supportive of each other, and want K.A. returned to them, I do not feel sufficient confidence that K.A. will be adequately protected if he is returned. I do not accept the suggestion that either the April incident or the August incident were situational, and simply isolated events in an otherwise normally functioning household. Partners with four years of relationship history do not separate for a significant period of time for paltry reasons. A domestic partner with a good functioning relationship does not leave his counterpart, take her child to the Children's Aid, and decide to leave town because he or she, or both, have just had a bad day.
[23] Whatever the cause(s) of the domestic problems, a simple reconciliation does not make them disappear. I am not persuaded that sessions with counsellor Willard Pine have addressed these problems. I have no idea how many sessions there have been. Nor do I have any evidence of the efficacy of his counselling with them.
[24] The mother, despite her repeated statements that she has not abused drugs for many years, is still taking methadone, an indication that she is still dealing with drug addiction. To her credit, she seems to have made progress in her treatment program. Her recent readings may turn out to be anomalous or otherwise explainable. But for the moment, they represent an interruption in her progress; perhaps even a relapse.
[25] I cannot impose conditions that will magically transform M.M. and K.W. into a family unit sufficiently stable to warrant return of a son, even one who is 12 years old, and who badly wants to be returned to his mother. I cannot cure the mother of her addiction by court order. I can order her to continue her methadone clinic program until discharged, but I cannot, by order, control what unauthorized substances she may ingest.
[26] As a final comment, a return of the child to the mother would almost certainly be with a supervision order with conditions. The evidence satisfies me that the mother's relationship with the society has been anything but cooperative. It has been characterized by missed and/or cancelled appointments, refusals to permit workers entry into her home, refusals to sign consents when requested, belligerent and confrontational attitudes, sometimes combined with discourteous or outright bad language, and, at times, falsehoods, if not outright lies.
Decision
[27] The second part of the two-part test has been met. The society asked for temporary care and custody in favour of the paternal grandparents. The child seeks this as second best. His OCL counsel endorses this. The child has lived with these grandparents for about three years and is comfortable in their home and in their care. They are happy to have him.
[28] This decision does not address the issues of maternal access or access by KW to the child KA. The reason why it does not is because I am still not entirely sure what kind of access will be in K.A's best interest, on an interim basis. KW is a step-parent of KA in all but name, according to the evidence. He clearly has a psychological relationship with KA. KW was not a party when I heard arguments on the motion claims for temporary care and custody and on maternal access. He is now a party and a statutory "parent". This changes, somewhat, the "best interests" considerations on the issue of access. He has now also resumed his relationship with the mother MM and I assume that they are again co-habiting, but I am not entirely sure of this. Also, as a result of my decision in these Reasons, KA will be in the temporary care and custody of his paternal grandparents, not of the society. The upshot is that I would welcome additional submissions on access to KA by both his mother MM and by KW with particular details of what that access should consist of in terms of location, time(s), frequency, duration, supervision, if any, and whether it is joint access by both MM and KW, or individual access, or both.
Released: November 26, 2013
Signed: "Justice John Kukurin"
Statutory References
[1] Parties
Section 39(1) of the Child and Family Services Act
The following are parties to a proceeding under this Part:
- The applicant.
- The society having jurisdiction in the matter.
- The child's parent.
- Where the child is an Indian or a native person, a representative chosen by the child's band or native community.
[2] Interpretation
Section 37(1) of the Child and Family Services Act
In this Part, "parent", when used in reference to a child, means each of:
(a) the child's mother,
(b) an individual described in one of paragraphs 1 to 6 of subsection 8(1) of the Children's Law Reform Act, unless it is proved on a balance of probabilities that he is not the child's natural father,
(c) the individual having lawful custody of the child,
(d) an individual who, during the twelve months before intervention under this Part, has demonstrated a settled intention to treat the child as a child of his or her family, or has acknowledged parentage of the child and provided for the child's support,
(e) an individual who, under a written agreement or a court order, is required to provide for the child, has custody of the child or has a right of access to the child, and
(f) an individual who has acknowledged parentage of the child in writing under section 12 of the Children's Law Reform Act,
but does not include a foster parent.
[3] Prior Decision
Children's Aid Society of Algoma v. M.M., 2010 ONCJ 706
[4] Child in Need of Protection
Section 37(2) of the Child and Family Services Act
A child is in need of protection where:
(b) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person's:
(i) failure to adequately care for, provide for, supervise or protect the child, or
(ii) pattern of neglect in caring for, providing for, supervising or protecting the child;
(g.1) there is a risk that the child is likely to suffer emotional harm of the kind described in subclause (f)(i), (ii), (iii), (iv) or (v) and that the child's parent or the person having charge of the child does not provide, or refuses or is unavailable or unable to consent to, services or treatment to prevent the harm.
[5] Paternal Grandparents
In actuality, it is the child's paternal grandmother S.M. and her spouse, M.M2. He is not the grandfather of the child biologically. They are referred to as paternal grandparents for convenience.
[6] Counsel for the Child
Mr. O.K. Lawson, the same counsel who represented the child in prior protection proceedings.
[7] Statutory Test for Removal Order
Section 51(3) of the Child and Family Services Act
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).