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 45(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.: 382-14 Date: 2015-05-14 Ontario Court of Justice

Between:

Windsor-Essex Children's Aid Society, Applicant,

— AND —

J.W., and A.H. Respondents.

Before: Justice Barry M. Tobin

Heard on: May 4, 2015

Ruling on Motion released on: May 14, 2015

Counsel

D. Ziriada .............................................................................................. for the applicant Society

J. Oxley .............................................................................. Duty Counsel, for the respondent, J.W.

No appearance by or on behalf of .................................................... A.H., not served with notice

C. Knowles ......................................................................................... for the Children's Lawyer, legal representative for the children

TOBIN J.:

RULING ON MOTION

1: THE MOTION

[1] On this motion the Society asks for leave to withdraw its protection application. While facing imminent deportation from Canada the mother was admitted to hospital and unable to care for the children. The children have been in Society care since. The Society argues that as the mother was released from hospital a number of months ago, the children are no longer in need of protection, so long as they remain in Ontario.

[2] The respondent mother and counsel for the children oppose the motion. They argue that if the child protection application is withdrawn the children will be returned to the care of their mother, who remains at risk to be deported. Upon deportation, she and the children will be sent back to the Netherlands where the children's father resides and she is afraid to go. The respondent mother fled to Canada because of ongoing violence to the children and her by the respondent father. Counsel for the children also argues that the state of the mother's mental health is not so clear as to allow the court to find the children may no longer be in need of protection.

2: FACTS

[3] The respondent, J.W., is the mother of three children: A.H., born 2003, N.H., born 2007 and A.H., born 2011. The father of the children is A.H.. He resides in the Netherlands.

[4] In the respondent mother's affidavit, sworn December 3, 2014, which counsel agreed should be considered on this motion, she deposed as follows:

a) She is 29 years of age;

b) Because of ongoing physical violence in her family of origin, she moved in with the respondent father when she was 17 years of age;

c) Upon moving in with the respondent father, her entire family disowned her except her brother who resided in Canada. She has had no contact with her family since she was 17 years of age;

d) She became completely emotionally and physically dependent upon the respondent father;

e) The respondent father began physically abusing her approximately two months after moving in with him;

f) She had minimal freedom in Holland as she was monitored by the respondent father and his friends;

g) If the respondent father felt the respondent mother was "up to something" he would lock her in their apartment and take the key with him. He would also lock the children and her in the apartment when he went out with his friends;

h) When the respondent father was away, his friends were authorized to monitor her;

i) The respondent father would sexually assault her;

j) All three children witnessed the violence perpetrated against her;

k) The children were physically abused by the respondent father;

l) She was forced to convert to Islam by the respondent father and follow strict Muslim teachings which according to him included the belief that both daughters and she should be circumcised. The respondent father also wanted the children and respondent mother to live with his wife and son from Somalia. He intended that they all move to Belgium;

m) She fled to Canada because she felt the respondent father would not be able to find her;

n) She came to Canada on July 1, 2013 on a visitor's visa;

o) Her attempts to seek protection in Canada through refugee proceedings and by making application for permanent residence on humanitarian and compassionate grounds have been denied. Though these applications were initially denied, her lawyer requested the humanitarian application be reconsidered based on additional evidence.

[5] The respondent mother received a Direction to Report from the Canada Border Services Agency, for herself and the children, for removal from Canada on September 1, 2014. The notice is dated August 6, 2014.

[6] On August 26, 2014, the respondent mother was sent to the hospital emergency by her nurse practitioner and family doctor for a psychiatric consultation.

[7] The Society filed, as an exhibit to the affidavit of Heather Weinberg, medical summaries from Windsor Regional Hospital concerning the respondent mother's admission and discharge from hospital. Counsel consented to these reports being admitted in evidence and relied upon for the purposes of this motion.

[8] The admission report disclosed that the respondent mother told the attending physician (who, in his report, stated he believed her) that:

"...she will kill herself, and try to kill her three children, if she is forced to take them back to the Netherlands. I do believe she is very distressed, suffers from acute traumatic syndrome (I do not think this is PTSD because it does not seem to be stimulated by threats only from the past but also from threats which remain in the present and the future). I think that it follows that we need to admit her to hospital, try to treat her for her acute stress, try to obtain the facts as to where things are in terms of the immigration action, and try to assist with this in any way we can. ...Given the acuity of the potential risk if [the respondent mother's] statements are accurate and factual, her current condition is completely understandable. She presents with enormous situational stress, depression and anxiety which no amount of medication by itself will be able to sort out."

This report was dictated August 26, 2014.

[9] The mother remained in hospital until she was discharged by her attending physician on October 6, 2014.

[10] The Society started the child protection application because the respondent mother was unable to care for the children during the period of her hospitalization. On August 29, 2014, the children were ordered into the temporary care and custody of the Society on a without prejudice basis. The order remains in force.

[11] The discharge summary disclosed that the attending physician challenged the respondent mother on several occasions while she was in hospital whether she would have actually killed herself and her children under the circumstances of the evening of her admission. She told the doctor, "[s]he was desperate for help and though she admits she may have done some harm to herself she quite forthrightly says she would never have done anything to harm her children. ... In the opinion of the treatment team, it is clear that she is a concerned and caring mother and that her children are the number one thing in her life."

[12] In January 2015, the Society decided it would move to terminate this application based on the following:

a) The respondent mother has advised the worker that if the children are returned to her care, she will return to her apartment where she lived previously and there will be no other adults living in that home.

b) Throughout the time the Society has been involved with this family, the respondent mother has been cooperative with the Society. She has had positive access with the children and attends at the Society three times each week for this purpose.

c) There have been no reports of any concern about the respondent mother's mental health since she was discharged from hospital. The worker has not observed anything which would suggest the respondent mother is having mental health or behavioural issues at this time.

d) The Society has contacted a child welfare organization in Amsterdam through e-mail and has been advised that it will cooperate with the respondent mother on a safety plan should she and the children return to the Netherlands. The organization can provide other community resources which would be of assistance to the mother.

[13] Appended to the Continuing Record at Tab 11, and marked as Exhibit No. 2 on this motion, is a facsimile transmission directed to Campigotto Law Firm (presumably the respondent mother's immigration counsel), stating the removal scheduled for September 1, 2014 of the respondent mother and children has been cancelled until further notice. This facsimile was sent March 13, 2015.

3: LEGAL CONSIDERATIONS

[14] Once the Society starts a child protection application it is required, pursuant to ss. 47(1) of the Child and Family Services Act, to accede to the court's power to have that determination of protection made by the court. To allow the Society to withdraw an application would usurp the court's function to decide if a child is in need of protection. Rule 12 of the Family Law Rules, which provides for withdrawal of a case by a party, does not apply to child protection proceedings: see Children's Aid Society of Hamilton-Wentworth v. N.(K.), 2002 CarswellOnt. 3409.

[15] The court, in Catholic Children's Aid Society of Toronto v. B.(D.), 2002 CarswellOnt. 1868 (Ont. C.J.), considered the circumstances under which a withdrawal would be appropriate, as follows:

[12] If I were satisfied that there were no continuing grounds for protection, I would permit a withdrawal of the protection of the protection application regardless of whether all parties consented. Trial time is valuable and a protection trial is not a forum for a parent to prove a point or obtain vindication.

[13] The consent of the parties to a withdrawal would be persuasive, but not determinative. Similarly, in appropriate circumstances, the lack of consent would not be a bar to such relief, provided I were satisfied that the proposed disposition or plan addressed the significant societal interest in the welfare of children apparently in need of protection.

[14] The reason or reasons given for the request to withdraw the application must be considered in each case. I can anticipate situations in which I would agree to an application's being withdrawn even when the grounds for a protection finding remain outstanding. For example, I might agree to a withdrawal if an allegedly abusive parent had been sentenced to a lengthy jail term on a totally unrelated matter or the grounds for protection still exist but were apparently manageable given the co-operative approach adopted by the parent to society involvement.

[15] In cases which the society wishes to withdraw in favour of a pending private custody proceeding, I would consider factors such as the nature of the allegations giving rise to the apparent need for protection, the perceived degree of risk to the child, the nature of the claims asserted in the private custody litigation (for example, has the parent identified by the society as the person who harmed or placed the child at risk, put forth a claim for custody) and, last, the position of the parties on whether a withdrawal should be allowed.

[16] Counsel did not refer the court to any cases addressing risk to the children in circumstances where they and their caregiving parent were subject to being removed from Canada. No cases whatsoever were referred to by counsel on this motion.

4: ANALYSIS

[17] It is not clear, on this record, that the respondent mother's mental health is no longer a risk to the children. The children were brought into care because of the respondent mother not being able to care for the children following her admission to hospital. Her mental health problems were serious and related to her fear of being returned with the children to the Netherlands.

[18] In the discharge summary, the attending physician concluded with the following:

"[The respondent mother] has been informed that if she is placed in jail and facing imminent deportation she should declare that she needs to return to the hospital and we will readmit her for safety."

[19] I also note the respondent mother was prescribed medications upon her discharge. The evidence does not disclose whether the respondent mother continues to take medication or remain under medical care.

[20] The Society argues the child protection proceedings should not be used to frustrate immigration or deportation proceedings. I agree with the Society. However, there is no evidence that steps to remove the mother and children from Canada have been suspended because of this outstanding child protection case. There is no evidence why the removal proceedings have been suspended or what the current status of the immigration proceeding is. As well, there is a lack of detail about what protections are available to the mother and the children should they return to the Netherlands.

[21] The risk to these children arising from the respondent mother's mental health in the context of the outstanding deportation and immigration proceedings and the respondent father's past behaviours is such that it is not appropriate to grant the Society's request to withdraw at this time.

[22] The Society does not dispute the risk should the children be returned to the Netherlands but proposes the responsibility to ensure the protection of the children be handed off to a child protection agency in Amsterdam. I do not agree that the risk be addressed in this manner especially without evidence of what protections are available. The nature of the risk requires better evidence.

[23] For these reasons, I find it is premature to allow the Society to withdraw the child protection application.

5: DECISION

[24] Accordingly, the motion is dismissed.

[25] The application is adjourned to July 6, 2015 for a settlement conference at 10:00 a.m. in courtroom #4. It would be of assistance if at the settlement conference the parties disclose the status of the proceedings to have the respondent mother and children removed from or remain in Canada, and obtain an up-to-date report on the respondent mother's mental health. Reports from Canada Border Services or the respondent mother's immigration counsel would also be helpful as would particulars of services available to the mother and children in the Netherlands. Finally, a legal brief on the intersection of child protection law and immigration law as it pertains to this case would be of assistance.

Released: May 14, 2015

"original signed and released"

Barry M. Tobin Justice