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 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.

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 File and Parties

Court File No.: C45131/08 Date: June 15, 2015

ONTARIO COURT OF JUSTICE

Re: Children's Aid Society of Toronto – Applicant

S.S. – Respondent (mother)

A.A. – Respondent (father)

Before: Justice Roselyn Zisman

Counsel:

• Nicole Horowitz for Children's Aid Society of Toronto
• Janet Daby for Respondent S.S.
• Raymond Sharpe for Respondent A.A.

Heard On: April 8 and May 28, 2015

Decision on Temporary Motion

Introduction

[1] This is a motion by the Respondent A.A. ("father") for access to his sons A.A. born […], 2009, and K.A. born [...], 2010, ("the children"). The father seeks unsupervised access on a gradually increasing schedule over three months from once per week for four hours to every other week-end from Friday to Sunday. In the alternative, that access be supervised by his brothers, sister, or his parents on the same schedule.

[2] The Children's Aid Society of Toronto ("society") brought a cross-motion seeking to decrease the father's current supervised alternate weekly access. The society seeks an order that the father's access be reduced to once every two months for two hours at a supervised access site and that the father be accompanied by a family member with experience in managing the children and ensuring their safety and with whom the children are familiar. In the alternative, the father's access shall be at the discretion of the society at a minimum of six times a year for 90 minutes.

[3] The mother and the maternal grandparents, where the children reside, support the position of the society.

Background

[4] The Respondent mother and father are the biological parents of the children before the court A.A. and K.A.

[5] The mother has another child T.S.-J., who is 14 years old. She was apprehended due to concerns about domestic violence between the mother and father, allegations that the father physically disciplined her and because the mother was not being protective of her. The father denied these allegations. T.S.-J. was placed with her maternal grandparents on July 16, 2008, and has resided with them since this time.

[6] The parents had another child, S.A., born on […], 2008, who was apprehended at birth. Shortly thereafter, she was placed with the mother on condition that the mother resided with the paternal grandparents. The entire family that lived in the residence, including the paternal uncles and paternal aunt, shared in the day-to-day care of S.A. and then A.A., who was born on […], 2009. They also supervised the father's access as required by the terms of supervision due to concerns about the father's mental health.

[7] The mother moved into her own residence in December 2009, in breach of the terms of supervision. There is a dispute as to whether or not the paternal family advised the society about the mother moving out of the paternal family's home.

[8] On July 9, 2010, S.A., died under suspicious circumstances while in the care of the mother. A.A., who had been in the care of the mother, was apprehended.

[9] On […], 2010, K.A. was born and he was apprehended at birth and placed in society care.

[10] In October 2010, the mother was arrested and charged with the death of S.A. On September 18, 2012, she pleaded guilty to criminal negligence causing death and on September 6, 2013 she was sentenced to six years imprisonment.

[11] The society placed the children before the court A.A. and K.A., with the maternal grandparents on November 3, 2011, pursuant to a temporary supervision order, with access to the parents at the discretion of the society. The placement was on consent of all parties. The children have remained in the care of the maternal grandparents since that time.

[12] The children were found to be in need of protection, pursuant to section 37 (2) (l) of the Child and Family Services Act on June 30, 2011.

[13] The society filed an Amended Protection Application on November 7, 2012, seeking an order that the children be placed in the care and custody of the maternal grandparents pursuant to section 57.1 of the Child and Family Services Act.

[14] On May 15, 2013, on consent, an order was made granting the father supervised access on alternate weeks. The paternal grandmother and two other family members were entitled to attend.

[15] The society filed an Amended Amended Protection Application on February 18, 2015, seeking an order for Crown wardship, with the intention of the maternal grandparents securing custody, pursuant to section 65.2 of the Child and Family Services Act, after the children are made Crown wards. This change was requested by the paternal grandparents as they are seeking support from the society, especially financial support. The maternal grandparents have never received any financial assistance from the mother, the father or the paternal family. This application is pending. The mother is consenting. The father's Answer states that he would consent if he was assured that he obtained access, including liberal unsupervised access. In the alternative, he is requesting that the children be placed in his care.

[16] The father's motion and cross-motion were heard on April 8, 2015. The maternal grandmother was present and not represented. When questioned by the court about her position, she advised that she was not served with the motion.

[17] Father's counsel produced an affidavit of service, but the maternal grandmother stated that she had not been home when the documents were delivered and then did not have the $25.00 to pick them up from the post office. Despite objections from father's counsel, the court granted the maternal grandmother an adjournment to file any responding materials. Counsel for the father was also provided with the opportunity to file further responding affidavits to the maternal grandmother's affidavit. Submissions were made by father's counsel and counsel for the society. The motion adjourned for further evidence and submissions.

Evidence Regarding the Father

[18] The father has long standing mental health issues. His past medical and personal history was reviewed in detail by Dr. Pearce in his psychiatric assessment dated February 10, 2011, to determine if the father was criminally responsible for criminal offences that occurred on June 15, 2010. The society filed this report as an exhibit to the family service worker's affidavit. The contents were not disputed.

[19] Since 2005, the father has intermittently presented as paranoid, confused and disorganized. His temper has been problematic and he has had bizarre thoughts and experienced auditory hallucinations.

[20] In 2007, he was assessed by Dr. Bhalerao at St. Michael's hospital to be experiencing auditory hallucinations and persecutory delusions. He was diagnosed as suffering from a sleep disorder, a major depressive disorder and a psychotic disorder secondary to a medical condition referring to a head injury he experienced as a child.

[21] In 2009, he was admitted to the Toronto East General Hospital on a Form 2 after his family reported that his behavior had "dramatically changed." He was disorganized and "agitated, preoccupied with religion, and sexually preoccupied." He "was going in and out of traffic," and "seeing and hearing things," and spoke of Lucifer and God. He was assessed as "delusional, agitated and hyperactive." At the time, he was living apart from the mother as he had been criminally charged (the details were not specified). His family reported a two year history of impulsive, paranoid and agitated behaviour.

[22] Dr. Gojer prepared a report dated March 24, 2009, at the request of the father's criminal counsel. The diagnosis is consistent with prior diagnoses, but it also notes cannabis abuse and that the father is suffering the residual effects of brain damage. He concluded that the father was fit to stand trial. The criminal charges that father was facing at the time are not outlined in the report.

[23] According to records from Dr. Williams, the father's family doctor, he was seen in May 2010, and he was fairly stable and was prescribed medications. However, a month later the father attended her office and he spoke of "devil worshippers and magicians" being around the city and the Children's Aid Society of bribing people against him. Dr. Williams concluded, "Further bad behaviour, impulsivity, aggression, paranoia-worse again, narcissism, recidivism, may be schizophrenic." She noted the use of marijuana and that that the father had not returned to see his psychiatrist and that she prescribed various antidepressants for him. She noted that when she advised the father he had a sexually transmitted disease, he became angry and punched a hole in her wall, then threatened her staff and punched another hole in the wall.

[24] At this time, the father's brother reported that the father only sporadically took his medication.

[25] Throughout Dr. Pearce's report there are references to various criminal charges the father faced, however not all of the details or dates are clear. According to the father's self-reporting to Dr. Pearce, he was charged with assaulting a co-worker in 2007, but the charges were withdrawn as a result of the father agreeing to attend counselling and he was granted a mental health diversion. The father reported another incident where he was picked up driving a stolen vehicle while high on marijuana but that the charges were withdrawn and another incident of criminal harassment that resolved by means of a peace bond. The father, in the affidavits he filed in support of his motion, does not refer to his criminal history. I would suggest that the society obtain a copy of the father's complete criminal record.

[26] On June 15, 2010, the father was charged with respect to an incident that occurred at the mother's apartment complex, although the father was bound by bail conditions to reside with the paternal grandparents. The charges included threatening death, threatening bodily harm, assault, assault with a weapon, namely, a knife and possession of a weapon for a dangerous purpose.

[27] It is not disputed that the paternal family did not advise the society of these charges. The paternal uncle deposes that he thought the police would tell the society as he had been advised in 2009 by a police officer that if someone is arrested and has involvement with the society then the police would advise the society. The paternal family denies that they intentionally withheld this information.

[28] However, the society deposes that at the time, it was under the impression that the father's mental health was stable based on the information it received from the father's treating physician who was completely unaware of the June 15 incident.

[29] On May 16, 2011, the father was found criminally not responsible with respect to the charges arising out of the June 15, 2010 incident and was subject to a discharge on conditions under a Disposition of the Ontario Review Board dated March 9, 2012. The conditions included that he abstain absolutely from the non-medical use of alcohol or drugs or any other intoxicant, submit to samples of his urine or breath and to report to his treatment team not less than once every two weeks.

[30] Again, the society found out this information indirectly, not from the father or his family, when it received a copy of the report from the Ontario Review Board.

[31] On September 7, 2012, an early review was held by the Ontario Review Board and it was determined that a detention order was necessary on the general forensic unit at CAMH with the ability of the father to live in the community in approved accommodations. In its decision released January 15, 2013, the Board came to this conclusion due to the father not attending for treatment as required, his continuous use of substances, and uncertainty about where he was residing as he appeared to have two residences. The father was required under the terms of the conditional discharge to reside with his family. However, he had his own apartment and there was concern as to where he was actually residing and therefore whether or not his family was monitoring him. At the hearing, Dr. Prendergast, who is the father's treating psychiatrist, testified that the father was a significant risk to the safety of the public as he suffered from a combination of psychosis and substance abuse. He also had difficulty managing his anger. Dr. Prendergast reported that the father regularly missed appointments and that he was concerned about his continued use of cannabis and how it would affect his long term state and impact on his cognitive functioning due to his brain injury.

[32] On December 12, 2014, the Ontario Review Board ordered the father to be discharged absolutely.

[33] Dr. Prendergast prepared a report dated January 15, 2015, that was relied upon by the father on this motion. Dr. Prendergast confirms that his primary diagnosis of schizophrenia and a significant history of alcohol and substance abuse. There is also a childhood history of serious head injury which has contributed to cognitive limitations and poor frustration tolerance. Dr. Prendergast opines that the father's mental illness has been successfully treated with antipsychotic and antidepressant medications and he has been symptom free since 2012. He further states that although the father had some initial difficulty controlling his alcohol and substance abuse he attended several programs at CAMH and has been "clean" since 2012. He further states that the father's acquired brain injury has created some difficulties for him to engage in educational or training activities and has created problems with impulse control and management of frustration. However, he points out that the father has progressed to being able to attend the school at CAMH.

[34] Dr. Prendergast concludes that, "In summary, his mental condition is now stable and he is committed to staying on medication and attending for follow up. Accordingly, he has been granted an absolute discharge by the Ontario Review Board, which means that his ongoing treatment will be outside of the forensic/legal system. He will, however, continue to see me at CAMH."

[35] With respect to access to his children, Dr. Prendergast states that this is an ongoing source of anxiety and frustration to the father. Although Dr. Prendergast confirms that he has not conducted a formal assessment of the father's parenting abilities, he states that the father presents as a caring and committed parent, he reports no problems during his supervised access visits and "his psychiatric profile does not suggest that he cannot make further progress in this area." Dr. Prendergast emphasizes that he has not been provided any information from the society and there has not been any ongoing contact between the society and the clinical team at CAMH, which he suggests is less than ideal in view of the father's history and ongoing vulnerability.

[36] The father's affidavit states that he is concerned the society has not followed up with his psychiatrist, that the society has not offered him services to assist him in moving towards normalizing his access and that the society's assessment of him has been unduly harsh.

[37] The father confirms that he has complied with the treatment recommendations from CAMH, that he is taking his medications and has had regular follow ups with Dr. Prendergast. He deposes that the society continues to dwell on his past and does not focus on his improvements.

[38] The paternal grandmother deposes that she has always encouraged her son to take his medications, but he is an adult capable of making his own choices and she cannot control his ultimate decisions. She states that in the past she had no idea that the mother and father arranged for the father to see the children unsupervised. She deposes that she would always ensure that the children's needs were met during any access visits and supervise her son.

Evidence Regarding Access Visits

[39] The father did not initially have access to A.A. when he was apprehended due to the death of S.A. The society's worker deposes that this was as a result of the ongoing police investigation at the time. The father did not have access for about six months although the paternal family exercised access.

[40] The father then began to exercise supervised access from January 2010 until September 2012, when the society received notice of the Ontario Review Board decision and suspended the father's access and the access of the paternal family. The society submits that it suspended access a result of the father and paternal family not advising it of the concerns outlined in the Ontario Review Board's decision and that it had to investigate and consider those issues. The father deposes that the society suspended access for no reason.

[41] Pursuant to the consent order of May 15, 2013, the father has been having supervised access to the children bi-weekly since that time. The visits take place on Thursdays, after school, for two hours. There have been about 36 visits.

[42] The father has attended regularly, although there were a few missed visits for illness and other reasons due to misunderstandings about scheduling or family members being out of the country.

[43] The family service worker outlined the general concerns regarding the visits and also provided details of some typical visits. She notes the following positive aspects of the visits:

a) The father loves the children and enjoys watching them play and at times is actively engaged with them;

b) The children know the father and the family members; and

c) The children are happy to see the father and the extended family members.

[44] The family service worker has noted the following concerns about the visits:

a) The father and paternal grandmother have difficulty managing the children and K.A., in particular, pushes their limits and does not listen;

b) The paternal grandmother does not appear to be physically active and tends to sit down and leave it to others to run after the boys; she resorts to telling the children they need to listen to her because the worker is watching them;

c) The father frequently comes and goes from the access visit without explanation and the children are oblivious as to whether or not he is present;

d) Generally the father does not actively engage with the children, but is a passive observer;

e) The children are very active and playful and need to be closely watched. They engage in behaviours such as throwing toys, spitting, screaming, running in halls with shopping carts and standing on chairs;

f) The paternal aunt has been observed to be the only family member able to manage and structure the visits. The father has been unable to model the effective parenting skill displayed by her and is content to sit back and let her parent the children;

g) The father has lost his patience and been frustrated with the children; he has yelled, threatened to take toys away, threatened timeouts, but never followed through or tried to talk to the children to explain why their behaviour were not appropriate; and

h) The children are given presents at the majority of the visits and are eager to see what is being brought; the family service worker suggested that instead of toys they bring colouring books or other items more conductive to quiet play. The family also uses threats to take the toys away as a behaviour management method that generally does not work.

[45] The family service worker deposes that she has not referred the father to any parenting program as over time it has become clear that despite her attempts and the attempts of the paternal aunt to model effective parenting skills he has not adjusted his parenting style.

[46] Father's counsel submits that the society has selectively detailed visits that were negative and not included the more positive visits. However, the father has not included any details of more positive visits or explanations for some of the concerns that were noted. The father and his family members simply depose that the visits go well and there are no concerns. They depose that the timing and confined space of the access facilities are to blame for the children's behaviour and that access would be better managed if it occurred on week-ends and was in the community or their home.

Evidence Regarding Maternal Grandparents

[47] The maternal grandparents assumed care of their granddaughter in 2008, and in 2011 assumed care of their grandsons. When the children before the court were placed in their care, the maternal grandmother gave up her job to devote full-time care to them and assist with the transition into their home.

[48] The maternal grandparents have also had to cope with the knowledge that their daughter has been convicted of a horrific crime that resulted in the death of their other granddaughter, S.A.

[49] The maternal grandmother deposed [1] that she is haunted by the thought that the death of S.A. could have been avoided as she was asked by the society to have S.A. placed with her. She declined as the father had threatened to kill her and her daughter told her that it would be better if she did not get involved. At the time she was unaware of the abuse the father was causing the mother or about the father's mental health issues.

[50] The maternal grandmother deposes that she does not trust the paternal family as they did not supervise the father or report his breaches of the outstanding orders. The father was only to have supervised access to his children, but he was having unsupervised visits and was to live with his parents, but was living with the mother. She deposes that his family was aware of these breaches and did not report them.

[51] The maternal grandparents have met all of the needs of their grandsons and there is a close bond between them. They are committed to long term and permanent care of the children. They understand the protection concerns regarding their daughter in terms of future contact between her and the children. They have had to make financial sacrifices. The maternal grandmother did not return to work due to the demands of the children. The children could not be covered on the maternal grandfather's employee health plan as they do not have custody and therefore have had to cover the cost of drugs and dental expenses themselves. They have not received any financial assistance from the parents.

[52] The maternal grandmother attended a workshop on child development, ensured A.A. attended at speech and language sessions, and enrolled K.A. in a program to assist him with transitioning to school as he had difficulty separating from her. Both boys are now attending school and doing well.

[53] The maternal grandmother transports the children to and from the access visits. She deposes that she is not against the paternal family having access, but is concerned about the children's safety and is not comfortable with them having unsupervised access. She reports that the children return from the visits hyper, that they have been given junk food and won't eat their dinner and fight over the toys they are given.

Applicable Legal Principles

[54] The test for a change of temporary access, when a child is in the care of either the society or another person, is governed by subsection 51 (6) of the Child and Family Services Act that provides that a court may at any time vary or terminate a temporary order for access. The test for temporary access is set out in subsection 51 (2) that provides that the court may make an order for access that contains terms and conditions that the court considers appropriate. In determining what terms or conditions are appropriate, the court should consider the paramount purpose of the Child and Family Services Act, namely, 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. The court should consider the relevant factors set out in subsection 37 (3) of the Child and Family Services Act.

[55] In considering a motion to vary the terms of temporary access these same principles apply and in addition, the court should consider what changes have occurred since the temporary access order was made.

[56] I have applied these principles in reaching my decision on this motion.

Analysis

[57] The best interests of the children require that nothing impedes their current living arrangements and their stability. There is also a benefit for the children to maintain a connection with their father and their paternal family and to be exposed to their religion, culture and heritage.

[58] There is no recognition in any of the affidavits filed by the father or his family of the care the maternal grandparents have taken of the children or the physical, emotional and financial sacrifices they have made for the children. The father and paternal family are fixated on how unfairly they have been treated.

[59] The maternal grandparents remain in legal limbo and are faced with uncertainty and unpredictability as it appears that the father will not consent to the children remaining in the care of the maternal grandparents unless he obtains the access he wishes. This is naturally upsetting and stressful to the maternal grandparents. They do not have the financial resources to retain counsel and face the prospect of the father and his family requiring this matter proceeds to trial. They fear the prospect of the father having unsupervised access as they are aware of the activity level of the children and the need to closely supervise them. They are also aware of the difficulties that the father has even during supervised access.

[60] The father has a long history of mental illness. According to Dr. Prendergast's recent report he states that as of 2012, the father's illness is being managed, he is complying with taking his medications and attending appointments and he has not abused substances since 2012. However, Dr. Prendergast testified before the Ontario Review Board in September 2012 that the father was a high risk, could not be managed in the community and that he was not compliant with his treatment and was still abusing substances. It was not until December 2014 that the Ontario Review Board deemed the father able to be discharged. It is also important to note that the father has a diagnosis of schizophrenia and a brain injury that are life-long conditions that need to be monitored. He is no longer subject to the Ontario Review Board or any criminal sanctions therefore, his compliance with his treatment is entirely voluntary.

[61] Accordingly, I find that the father has only recently been able to manage his mental health and to be complaint with his treatment and, due to his diagnosis he will always be vulnerable and need to be monitored.

[62] Based on the evidence on this motion, I find that the paternal family has not been open and forthcoming with the society regarding the father's mental health, his criminal charges or the conditions imposed on him by the Ontario Review Board. Even if the paternal family thought the police would advise the society about the father's criminal charges in 2010, it would have been expected that they would advise the society about the father's failure to abide by the terms of his initial discharge terms, especially his use of substances, that he was not living at their residence and that he was not compliant with his treatment. Based on this past history, it is natural that the society and the maternal grandparents would not be prepared to trust that the paternal family would be able to fully supervise the father and that they would report any concerns regarding the stability of his mental health. There is uncontradicted evidence that the paternal family in the past has not been able to ensure the father's compliance with treatment terms.

[63] In the affidavits filed by members of the paternal family, there is no recognition of any concerns due to the father's past history. They blame the society for the lack of access and for continuing to require that access be supervised. The paternal family has not recognized the danger that the father's mental health posed in the past and may continue to pose if he does not comply with his treatment.

[64] I find that the society's evidence at this stage of the proceedings is extremely concerning with respect to the father's inability to manage the children's behaviour in a supervised access setting. I accept the society evidence that in the last 22 months, the quality of the father's interaction has not improved.

[65] I find that although it is in the children's best interests to maintain contact with the father and his family, the father has not demonstrated that he is able to meet the needs of the children without supervision. The father needs to take a more active role in the access visits and attempt to learn better parenting strategies as demonstrated by the society and his sister.

[66] It would be helpful if the society workers contacted the father's psychiatrist to obtain more information about the father's mental health and cognitive difficulties in order to assist the father in learning how to interact with the children and how to manage the children's behaviours.

[67] I also find that the paternal family cannot be entrusted with supervising the father's visits as at this time as they have not demonstrated that they have any understanding of the father's vulnerability and risk that he poses to the children. There is insufficient evidence from the paternal family that they recognize the need to be open with the society about any issues that could arise with respect to the father. Nor is there any recognition from the paternal family that the father is unable to properly manage the children's behaviour during access visits. There are concerns that except for the paternal aunt, other members of the paternal family are also not able to supervise and manage the children.

[68] I agree with the society that the frequency of access should be reduced to relieve the stress on the maternal grandparents and cause less disruption to the children's lives. Also if access is less frequent it may assist in ensuring that the paternal aunt is able to attend more visits and that the father is better able to manage the visits. I strongly recommend that the paternal aunt attend visits to assist the father in ensuring the visits are enjoyable and safe for the children. However, the father should be the primary caregiver. If the father ever wishes to progress to having unsupervised access he needs to assume a parenting role during access visits and although he can learn from his sister better ways to manage the children, he should not defer the parenting role to her.

[69] I accept the father's concern that visits after school in a small access room are not optimal. During submissions, I asked the society if a Saturday access program was available and was told that although it is available, it is only semi-supervised. Changing the location of the visits that I understand would be in larger premises and during the week-end when the children may be more relaxed and less active, may improve the quality of the access visits. I find that such a change would not jeopardize the safety of the children as it is more likely family members will be available on a week-end. If the visits improve, it may be a step towards gradually increasing access and being able to move access outside of a supervised access centre.

Order

[70] The Respondent A.A.'s access to the children shall be once a month on Saturdays for two hours at the society's Saturday access program. The dates and times to be mutually agreed upon. If there is a wait list for the Saturday access program, access shall continue at the society's office on a week-day once a month for 2 hours until the Saturday access program becomes available.

[71] The Respondent A.A. shall be entitled to bring up to two supporting people, who are known to the children, to access visits.

[72] Any increase in access or access outside of the supervised access centre shall be at the discretion of the society dependent on the Respondent A.A.'s progress during the access visits and the ability of the paternal family to satisfy the society that they are able to effectively and fully supervise the Respondent's father's access.

Justice Roselyn Zisman

Date: June 15, 2015

[1] The maternal grandmother attached to her affidavit a letter she had previously filed with the court and upon which she continued to rely.