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.

(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

Ontario Court of Justice

Date: 2015-10-15

Court File No.: Brampton 20083/12

Between:

The Children's Aid Society of Peel, Applicant

— AND —

C.D. (formerly C.B.) G.B. S.J.

Respondents

Before: Justice Philip J. Clay

Heard on: September 30, 2015

Reasons for Judgment released on: October 15, 2015

Counsel

Shannon Kinch — counsel for the applicant society

Raymond Sharpe — counsel for the respondent C.D.

Ms. Rita Gonsalves — counsel for respondent S.J.

CLAY J.:

SUMMARY JUDGMENT MOTION

[1] The Children's Aid Society of the County of Peel (PCAS) brought a summary judgment motion seeking an order for statutory and protection findings with respect to four children. The child K.B. born XXXX XX, XXXX was the biological child of S.J. and G.B. The child M.M. born XXXX XX, XXXX was the biological child of C.B. and D.M.

[2] The children A.B. and AA.B. both born XXXX XX XXX were the biological children of C.D. and G.B.

[3] D.M. was noted in default on October 29, 2014 and had not participated in this proceeding. G.B. had filed an Answer but did not file any affidavit material in response to the Society's motion and did not attend at the motion.

[4] The Society sought to find K.B. in need of protection pursuant to s. 37 (2) (a) (i) and (ii), (2) (b) (i) and (ii), and (2) (e), (f) and (g) of the Child and Family Services Act (CFSA). It sought to find the other three children in need of protections pursuant to s. 37 (2) (b)(i) and (ii), and (2) (g).

BACKGROUND

[5] The child K.B. ("K.B.") was apprehended on June 22, 2012 from the care of C.D. The other three children and an older sister K.Q., born XXXX XX, XXXX, were apprehended from C.D.'s care on June 25, 2012. K.Q. was the biological child of C.D. and M.Q. and she was living with C.D. at the time of apprehension. By a without prejudice order dated June 27, 2012 all five children were placed in Society care.

[6] A temporary care hearing was held on November 26, 2012 and the children remained in care with supervised access to C.D. On August 28, 2013 K.B. was placed with her biological mother subject to Society supervision. On February 5, 2014 M.M., A.B. and AA.B. were placed in the care of C.D. subject to supervision. The Protection Application concerning K.Q. was permitted to be withdrawn on October 29, 2014.

[7] On June 10, 2015 this matter was scheduled for a summary judgment motion to be heard on September 30 on the issue of the protection findings only. There was no issue with the statutory findings which will be made on consent. Filing deadlines were set for further affidavit material. In response to an oral motion made by Mr. Sharpe I ruled at the opening of this motion that affidavit material filed prior to June 10, 2015 could be relied upon provided that if any hearsay statements would be disregarded.

ISSUES

[8] The issues to be determined in this case are as follows:

1. Is there a genuine issue requiring a trial as to whether the four children were in need of protection?

2. If a child or children were in need of protection what sub-section of s. 37 (2) was applicable to which child?

3. If a child or children were in need of protection should the court exercise its jurisdiction under s. 57 (9) of the Act to terminate the Protection Application or should a date be set to speak to the issue of disposition?

EVIDENCE

Society's evidence

[9] The Society relied upon affidavits of child protection workers involved with the family, the affidavit of Dr. Schwartz from the Hospital for Sick Children and the attached Suspected Child Abuse Network (SCAN) report, and the affidavit of K.B.'s teacher. All of these affidavits were prepared after the summary judgment motion was scheduled and the affidavits were therefore in the form of trial affidavits without hearsay.

[10] Ms. Gonsalves for S.J. did not file an affidavit in response to this motion. She was permitted to rely upon her affidavit of August 23, 2013. C.B. was permitted to file her affidavit late, in response of September 28, 2015 and to rely upon her affidavit of November 2, 2012. I have set out the relevant evidence in the affidavit material below.

Family background

[11] In the fall of 2011 C.D. was living with G.B. and her two daughters K.Q. and M.M. She was also pregnant with the couple's twin girls A.B. and AA.B. who were born on XXXX XX, XXXX. The child M.M. was 8 years old but she had severe developmental delays such that she had a mental age similar to a 2 or 3 year old.

[12] Notwithstanding that the couple already had a very busy home G.B. wanted to sponsor his daughter K.B. to Canada. K.B. was at that time living with her mother S.J. in Jamaica. C.D. did not want him to sponsor K.B. and the couple argued about this frequently. On two occasions the argument became physical and the police were called to the home on October 22 and November 24, 2011. C.D. had told G.B. that she was already extremely stressed with caring for her two daughters and the new born twins. She stated that he did not share in the household and caregiving responsibilities. She said that if he were to sponsor K.B. that he would have to be much more involved. Ultimately the sponsorship application was submitted and K.B. arrived in Canada in December 2011.

Society history

[13] The Society had been involved with C.D. and her former partner D.M. since 2001. Ultimately her step-children were found in need of protection and were made wards of the Crown in 2005. In the period 2006 to 2009 the Society was intermittently involved with C.D. in as a result of concerns regarding her use of physical discipline toward K.Q., injuries sustained by M.M. and K.Q.'s aggressive behaviours.

[14] The Society became involved with C.D. and G.B. in the fall of 2011 as a result of the domestic disputes referenced above. The parties continued to argue and on January 28, 2012 the Society received a referral from the police. They had responded to a domestic dispute and in the course of their investigation then 15 year old K.Q. disclosed that G.B. had touched her in a sexually inappropriate manner on several occasions. G.B. was charged with sexual assault and sexual interference. His bail conditions prevented contact with K.Q. G.B. was required to leave the home. He left his daughter K.B. in C.D. care. G.B. entered a guilty plea to sexual interference and on October 13, 2014 he received a sentence of 45 days in jail and was placed on probation for a period of 12 months.

[15] The Society continued to be involved with the D./B. family and on March 30, 2012 Society worker Kofi Owusu-Ansah attended at the home for a transfer visit as he was assuming the file from the former worker Claudette Hunter. His affidavit stated that Ms. Hunter had told him that when she went to the home March 28, 2012 she observed K.B. to have a black eye on the right side, swelling around the eye and a red spot in her eyes. C.D. had explained that K.B. had fallen and hit her face after fighting with her sister M.M. K.B. said nothing had happened. Two days later Mr. Owusu-Ansah saw the bruised area around the eye and Ms. Hunter noted that the swelling had been reduced. Again K.B. said nothing had happened.

[16] On his April 19, 2012 visit Mr. Owusu-Ansah was advised by C.D. that K.B.'s maternal family had taken her for an indefinite period of time. On May 9, 2012 K.B.'s school reported that she had been absent on a number of occasions. That same day the worker met with G.B. at the school. He said that K.B. had been staying with him since mid-April. Mr. Owusu-Ansah told G.B. that the Society could not support his caring for K.B. given that he was then facing charges for sexually interfering with K.Q. G.B. said that he would not ask any other member of his family to care for her as he did not want them knowing of his charges. G.B. then proposed that K.B. be returned to C.D.'s care. She was placed back with C.D. and remained with her until the apprehension on June 22, 2012.

[17] On June 4, 2012 the school reported that K.B. was frequently absent and that she had attended at the school with visible injuries that day and that she had stated that M.M. had caused the injuries. On June 12 school staff reported that K.B. had attended school with a swollen and bruised cheek, and scratches on her face and neck. K.B.'s head had also been shaved. K.B.'s explanation for her injuries was that she had fallen. Mr. Owusu-Ansah observed these injuries at the home that day when he met with the child. In addition to the above report he noted a patchy rash on her head and a red dot in her eye. K.B. said that she did not know what had happened. C.D. said that she believed that K.B.'s injuries were caused when she fell while playing on the balcony. When told that the child needed to see a physician C.D. advised that she already had an appointment for June 14.

[18] On June 13 the school reported that K.B. had presented with a bump on her head and a red mark on the back of her head. C.D. told school staff that she did not know how the injuries were caused. She also said that K.B. had been urinating and defecating on herself. Later this day the Society received a report from the school that K.B. was extremely distraught about having to return home. She stated that she wanted to go home with one of the school's teachers.

[19] On June 14 Mr. Owusu-Ansah attended at the family home. He observed dark spots on the left side of K.B.'s face which appeared slightly puffy. K.B.'s eyes were dark underneath and also were puffy. The worker noted a darkened cut on K.B.'s tongue which appeared to be healing. C.D. said that the child could have bitten her tongue because of the way that she eats. The child also had marks on her torso and buttocks which C.D. said were sores that the child had when she arrived in Canada.

[20] C.D. stated that she was late for the child's medical appointment and had to take K.B. to a walk-in clinic. She said that the doctor there thought the marks were probably the result of allergies. The worker followed up and a doctor at the clinic who had not examined K.B. read the chart to him. It was reported that a blood test had been ordered and that anti-fungal cream had been prescribed for the rashes on the child's scalp. There was no indication of further examinations.

[21] On June 20, 2012 C.D. took K.B. to the walk in clinic again. She said it was because of the urinating and defecating. The notes do not show that nor do they show that there was a physical examination. It appears that the appointment was to do with ordering blood work and following up on what was determined to be a fungal infection on the child's scalp.

[22] Also on June 20 Mr. Owusu-Ansah spoke with Mr. D.C. K.B.'s junior kindergarten teacher. D.C. filed an affidavit with his observations of K.B. He stated that K.B. had been a lot happier when she started school in January 2012 and that she now appeared sad all of the time. On June 4, 2012 he had noticed a bruise on her cheek and under her eye and feces in her pants. He said she had not had accidents when she began school and only had one prior incident of defecation in her clothes while at school. On June 12 he noticed fresh bruises on K.B.'s face, a swollen cheek and scratches on her neck. On June 13 he saw new bruises and the split tongue. He said G.B. had taken K.B. to school and the majority of the concerns began after G.B. stopped taking K.B. to school. He also advised that C.D. had told the school that K.B. would not be attending school for the remainder of the school year.

The apprehension

[23] On June 22 Mr. Owusu-Ansah attended at the D.' home with child protection worker Ms. Carolyn Randall and two police officers. Ms. Randall met with K.B. privately and she filed an affidavit. Ms. Randall stated that K.B. told her that C.D. "beat her." Mr. Owusu-Ansah said that when he saw K.B. afterwards she looked very serious and appeared to be in pain. She was taken to the Special Victims Unit for an interview. Immediately upon arriving there she began crying and continued to say that her head was hurting.

[24] A decision was made to apprehend K.B. and take her to The Hospital for Sick Children (Sick Kids) where the Suspected Child Abuse Network (SCAN) conducted a preliminary investigation. Details of the SCAN analysis are contained within the affidavit of Dr. Sarah Schwartz which attached the SCAN report of January 16, 2013. The affidavit listed the injuries that K.B. presented with upon admission. They were as follows:

a) Bruises of the face, thighs and buttocks;

b) Hyperpigmented (darker skin) marks to the face and neck;

c) Mouth injuries including a tongue laceration and a torn frenulum;

d) A subconjunctival hemorrhage in her left eye;

e) Fractures of the right clavicle;

f) Fracture of the left 1st rib;

g) Fracture of the 1st cervical vertebrae;

h) Subdural hematomas (bleeding around the brain);

i) Brain contusions and shearing injuries of the corpus callosum;

j) Extramedullary hemorrhage in the spine;

k) Healed complete transections of the hymen on genital exam

[25] Dr. Schwartz noted that the SCAN program concluded that K.B.'s injuries were not caused by any pre-existing medical conditions. Several of the injuries were severe and unusual. The multiple injuries in multiple locations on the body made the injuries highly suspicious for inflicted injury. The doctor said that upon sustaining many of the injuries K.B. would have experienced a great deal of pain.

[26] With respect to the age of the injuries the radiological imaging determined that the clavicle fracture was likely sustained less than a week before the June 23 X-ray. The intracranial hemorrhages/head trauma were likely sustained in the days prior to K.B.'s examination by the SCAN program. Dr. Schwartz addressed the wording in the SCAN report which had said that the head trauma "…occurred within approximately the previous 7 to 10 days." Dr. Schwartz said this meant that the injuries were not likely more than 7 to 10 days old but they could have been sustained two to three days before the X-rays were conducted. Dr. Schwartz said that the bruises are difficulty to date exactly it was important to note that bruises appear within hours of an individual sustaining an injury and typically resolve in a few days to one to two weeks.

[27] On June 25 Ms. Randall obtained the Sick Kids results and given the extent of K.B.'s injuries it was determined that the other four children then in C.D. care should be examined as well. The four children K.Q., M.M., A.B. and AA.B. were apprehended later that day and taken to Sick Kids. K.Q. refused to be examined and SCAN reported that it did not have any concerns with respect to the other three children's physical health.

The criminal charge

[28] On September 13, 2012 C.D. was charged with assaulting K.B. with a weapon. K.B. had given a statement to the police in which she had described being beaten by C.D. One of the allegations was that her she had been hit with a small rocking chair in the genital area and that could have caused the transection of her hymen referred to in the SCAN report. A trial was held in August 2013 and C.D. was acquitted. In his Reasons for Judgment released on December 5, 2013 the Honourable Mr. Justice T. Wolder made the following findings:

It is clear from the evidence that the accused was the primary caretaker in the home in which the child K.B. lived. The bruising that K.B. sustained from time to time was obvious. It was obvious to her home room teacher and to the school principal. It would also have been obvious to the accused.

There is no doubt that the accused harboured hostility towards the child and failed to protect the child. It appears that her responsibility for having to care for this child came about as a result of an arrangement made between S.J. and G.J. (sic). There is no evidence that the accused was a party to that arrangement or agreed to that arrangement before it was made. I have no doubt that this would have caused the accused to harbour considerable resentment and hostility towards this child.

[29] It appears clear from the decision that Justice Wolder understood from the evidence before him that G.B. and C.D. were living together at the time that K.B. suffered injuries as he referred to the home of the father and the accused. The evidence before me makes clear that G.B. moved out of C.D.'s home in January 2012. K.B. went to live with her father between April 9 and May 2, 2012. The Society's position based upon the SCAN report was that most of the injuries occurred within 10 days of June 23. The only people in the home other than C.D. who could have inflicted injuries were the siblings and the only real evidence of another person who could have caused her harm was evidence related to K.B.'s rough treatment at the hands of M.M.

Access and interaction with Society

[30] The Society filed affidavit material that addressed the progress of the children in care and C.D. access visits and her interaction with Society workers. There was no doubt that C.D. was upset with the Society. After the apprehension on June 25 she said that she did not understand why the other four children were being apprehended when the only child who was injured was K.B. C.D. remained bitter with the Society and never developed a good relationship with any of the workers. There was evidence in the Society's materials about C.D. angry outbursts and some inappropriate treatment of her daughters during access. It is not necessary to refer to that evidence as it did not factor into my decision as to whether the children were in need of protection.

C.D.'s evidence

[31] C.D. stated in her November 2, 2012 affidavit filed for the temporary care hearing that she had encouraged G.B. not to send for K.B. because she was pregnant with twins and she knew that it would be very difficult to manage five children alone. She said that G.B. assured her that he would take responsibility for K.B. when she arrived in Canada.

[32] When K.B. arrived in December 2011 C.D. said that she presented as happy but did not appear to be well cared for. She said the following about K.B.:

She had black coloration under her eyes and sores on her back, foot, hand and bum. She also complained of abdominal pains and headaches.

[33] C.D. said that she had always taken good care of all of her children and met their medical needs but when K.B. arrived she felt overwhelmed. She stated that on the Society's March 28 visit she had been the one to draw attention to K.B.'s black eye. She said that the injury had occurred when M.M. pushed K.B. down the stairs. K.B. said her shoulder and head hurt. She said that she had not taken K.B. to the doctor because she did not yet have K.B.'s OHIP card. She said the Society workers then had the same opportunity as she did to assess whether K.B. was seriously hurt. The Society blamed her for not taking steps to get medical attention but the Society workers did not help her with that.

[34] C.D. stated that she was having difficulty managing the conflict between M.M. and K.B. She said that on April 8 she contacted the Society's after hour's worker and asked the Society to take K.B. from her care as she was not her child and she could not manage anymore. The Society worker told her that nothing could be done that day. On April 9 G.B. made arrangements for S.J.'s family to take care of K.B. On May 2 C.D. received a call from Mr. Owusu-Ansah advising that he was bringing K.B. back to her care as G.B. was not allowed to care for her and the alternative was foster care. On that basis she agreed to the child's return.

[35] C.D. said that K.B. was in constant conflict with M.M. and would have obtained bruises from that. She said that on June 11 she fell off of her bike on the balcony. C.D. was unaware how the child obtained the deep cut in her tongue. C.D. maintained that she did seek medical attention for K.B. She said that she would have been seen by the family doctor on June 14 but the doctor "went home early" (the Society's materials said C.D. was late). She did take her to the urgent care clinic on both June 14 and June 20 and she emphasized that K.B. had been seen by a doctor there and there had been no notation of any bruising or injuries. The clinic notes confirm that the child was being followed up for a urinary tract infection and a rash on her scalp. There is no record of any concerns being expressed about physical injures and also no record of any physical examination as the focus was on obtaining blood work.

[36] C.D. stated that she never physically abused K.B. or any of her children. She provided some explanation for the injuries noted by SCAN. She stressed that the Society workers did not notice the serious injuries that were said to have occurred within 10 days of June 23 and that the urgent care doctors did not notice them either. She felt unfairly singled out for criticism when professionals had what she said was the same opportunity to notice the injuries. C.D. noted that the other three children examined by SCAN had no injuries.

THE LAW

[37] The Society brought this Summary Judgment motion pursuant to Rule 16 of the Family Law Rules. This Rule has recently been expanded by the addition of the powers in (6.1) of the Rule. The parts of the Rule relevant to this child protection matter read as follows:

Rule 16 Summary Judgment

When available

16. (1) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case. O. Reg. 114/99, r. 16 (1).

Available in any case except divorce

(2) A motion for summary judgment under subrule (1) may be made in any case (including a child protection case) that does not include a divorce claim. O. Reg. 114/99, r. 16 (2).

Evidence required

(4) The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial. O. Reg. 114/99, r. 16 (4).

Evidence of responding party

(4.1) In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial. O. Reg. 91/03, s. 5.

No Genuine Issue for Trial

(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly. O. Reg. 114/99, r. 16 (6).

Powers

(6.1) In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence.

O. Reg. 69/15, s. 5 (1).

[38] The CFSA contains a set of criteria for determining whether a child is in need of protection. They are set out in s. 37 (2) of the legislation. The sub-sections that the Society is relying upon in this matter read as follows:

Child in need of protection

(2) A child is in need of protection where,

(a) the child has suffered 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;

(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;

(e) the child requires medical treatment to cure, prevent or alleviate physical harm or suffering and 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, the treatment;

(f) the child has suffered emotional harm, demonstrated by serious,

(i) anxiety,

(ii) depression,

(iii) withdrawal,

(iv) self-destructive or aggressive behaviour, or

(v) delayed development,

and there are reasonable grounds to believe that the emotional harm suffered by the child results from the actions, failure to act or pattern of neglect on the part of the child's parent or the person having charge of the child;

(g) 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) resulting from the actions, failure to act or pattern of neglect on the part of the child's parent or the person having charge of the child;

[39] The Summary Judgment motion was brought for a finding that there is no genuine issue for trial at a child protection hearing. The legislation contemplates a bi-furcated trial on the issues of the protection findings and disposition. The protection finding is a threshold issue as if there is no finding the matter will not move on to a disposition stage. The authority for the child protection hearing is in s. 47 of the CFSA which reads as follows:

Child protection hearing

47. (1) Where an application is made under subsection 40 (1) or a matter is brought before the court to determine whether the child is in need of protection, the court shall hold a hearing to determine the issue and make an order under section 57.

There are certain statutory findings that must be made at the child protection hearing stage and they are set out in sub-section (2) as follows;

Child's name, age, etc.

(2) As soon as practicable, and in any event before determining whether a child is in need of protection, the court shall determine,

(a) the child's name and age;

(b) the religious faith, if any, in which the child is being raised;

(c) whether the child is an Indian or a native person and, if so, the child's band or native community; and

(d) where the child was brought to a place of safety before the hearing, the location of the place from which the child was removed.

[40] In this matter the Society relied upon C.D.'s history with the Society and relied upon the factual findings of Justice T. Wolder in the criminal trial. They were able to do so as a result of the provisions of s. 50 of the Act which states:

Past conduct toward children

50. (1) Despite anything in the Evidence Act, in any proceeding under this Part,

(a) the court may consider the past conduct of a person toward any child if that person is caring for or has access to or may care for or have access to a child who is the subject of the proceeding; and

(b) any oral or written statement or report that the court considers relevant to the proceeding, including a transcript, exhibit or finding or the reasons for a decision in an earlier civil or criminal proceeding, is admissible into evidence. 1999, c. 2, s. 12.

[41] Finally the CFSA provides that even if a child is found in need of protection a court is not required to make a further order. Sub-section 57 (9) of the Act states as follows:

Where no court order necessary

(9) Where the court finds that a child is in need of protection but is not satisfied that a court order is necessary to protect the child in the future, the court shall order that the child remain with or be returned to the person who had charge of the child immediately before intervention under this Part. R.S.O. 1990, c. C.11, s. 57 (9).

ANALYSIS

Genuine issue for trial

[42] In order for this matter to be resolved by way of summary judgment the onus was on the Society to prove that there was no genuine issue for trial. I find that they put all relevant evidence before the court. The mother had an obligation to put her "best foot forward" at this summary judgment motion and to present all evidence that supported her position. I find that with respect to all of the protection findings sought by the Society that there was no genuine issue for trial. I shall set out my reasoning with respect to each of the s. 37 (2) criteria relied upon by the Society.

Protection findings regarding K.B.

Background and history

[43] The most relevant evidence with respect to the background and family history was the evidence that related to how K.B. came to be in C.D. primary care. C.D. conceded that she did not want K.B. to come to Canada because she felt that G.B. would not assist her in caring for his daughter. At the time of K.B.'s arrival in December 2011 C.D. was understandably overwhelmed by her caregiving responsibilities. She had just given birth, prematurely, to twins. She was caring for her developmentally delayed daughter M.M. and she had her 15 year old daughter K.Q. in the home. As she expected G.B. did not help her when K.B. arrived.

[44] Just a month later G.B. was charged with sexually interfering with K.Q. He had to leave the home. He left K.B. in C.D. care. As she and G.B. had fought bitterly over whether K.B. should come to their home it was understandable that C.D. would be very upset to be left with the care of four very needy children.

[45] The evidence conflicted on the issue of whether K.B. arrived in Canada with pre-existing injuries or medical conditions. The Society filed a medical letter from Jamaica stating that the child was in good health. The evidence from the school was that she appeared healthy and happy when she first attended school in January. C.D. said she had marks and bruises and that her vaginal injury could have occurred in Jamaica. I find that it is likely that the child had the fungal infection in her scalp when she arrived and she may have had some other marks on her body However nothing significant turns on this finding. The only issue before me is whether the child was in need of protection. When she arrived in Canada in December 2011 she may or may not have had some medical issues but she was not in need of protection.

Physical harm

Inflicted by caregiver

[46] The evidence was that K.B. missed school a lot in the winter of 2012. This is in the period when G.B. was no longer in the home to take her to school. The mother admitted that the child had a large bruise when seen March 28. She was the only adult caregiver in the home when this occurred. C.D.' evidence is really to the effect that K.B. may have had serious injuries but that she did not inflict them.

[47] The only real evidence that it was C.D. who inflicted the injuries, and that they were not caused by falls or the actions of M.M. as C.D. maintains, is K.B.'s statement to the police and to the court. It is not surprising that the statement of a four year old child would be a little confusing and inconsistent. However, I note that until June 22, and notwithstanding the serious bruises and cuts she had sustained, K.B. had almost always responded to school officials and Society workers that "nothing had happened." She did not say that she fell while playing and with one exception she did not blame M.M. for hitting or pushing her. She said nothing happened and she did not want to talk about it. She also presented at school with soiled clothes after defecating in her pants. On June 22 after making her disclosure that C.D. "beat her" she did not want to return home. She wanted to stay with a teacher rather than return to her step-mother who had cared for her for all but a month since she had come to Canada. Dr. Schwartz stated that the type of injuries sustained were highly suspicious of inflicted injury. There was certainly evidence from which a reasonable conclusion could be drawn that C.D. directly inflicted the injuries while beating the child. I do not find C.D.'s explanation of how the injuries occurred to be credible.

[48] I concur with Justice T. Wolder's findings regarding C.D. being forced to care for her husband's child; a child she did not want to care for and one who added to her already overwhelming caregiving responsibilities. The fact that C.D. was acquitted of the assault charge is not that relevant. The test in a criminal trial is proof beyond a reasonable doubt and the court was faced with a somewhat confusing and inconsistent statement from a 4 year old and a denial from the accused. Furthermore, it appears that on the evidence before him Justice Wolder found that G.B. was also living in the home at the relevant times. The evidence before me is clear that G.B. never lived in the home with C.D. after he was charged in January 2012. He cared for the child for some or all of the time between April 9 and May 2 but the child went to school regularly during that time and no injuries were noted. It is significant that the serious injuries including the brain bleed and the fractured clavicle as well as extensive bruising all occurred within 10 days of June 23 when the child was exclusively cared for by C.D.

[49] Mr. Sharpe urged the court to find that the SCAN report must be inaccurate in dating the said serious injuries to the 10 day period prior to June 23. He noted that the mother had taken the child to the urgent care clinic on June 14 and 20. He filed the urgent care notes. They show that C.D. had taken K.B. on May 18 regarding a possible urinary tract infection and had mentioned the rash on the scalp. Blood work was collected on June 14. The child was seen again for the lab results on June 20 and the rash on the scalp was diagnosed as seborrhea. Mr. Sharpe emphasized that there was no doctor's notation of bruising or fractures. Ms. Kinch noted that C.D. had missed her appointment with the family doctor and the urgent care clinic did not do a physical examination of the child.

[50] I find that the fact that the urgent care physician did not note serious injuries did not establish conclusively that they did not occur within 10 days of June 23. There had been bruises and the cut tongue noted before the June 20 urgent care visit. The condition of the child when seen by the worker on June 22 was such that it would likely have been noted and reported by the urgent care doctor on June 20. It is not inconsistent with the SCAN report's findings to conclude that the child was beaten causing the broken clavicle and the brain bleed at some point between June 20 and June 22. Clearly there were earlier injuries, the tongue cut, the cheek bruises, the partially healed broken rib and the healed injury to the hymen. Not all of the injuries occurred in or about June 20-22 but the most serious ones did.

Failure to protect

[51] However even if the injuries did occur before June 20 and even if the full extent of them were missed by the urgent care doctor and Mr. Owusu-Ansah, the fact remains that the child was in the exclusive care of C.D. after May 2, 2012. She had an obligation to protect the child and the child was seriously injured when in her care.

[52] I find that it is likely that C.D. personally inflicted most, if not all, of the injuries that K.B. presented with to the SCAN team on June 22. I find therefore that K.B. was a child in need of protection under s. 37 (2) (a) of the CFSA. If she did not personally cause the injuries they were caused while the child was in her care and the child is therefore in need of protection under s. 37 (2) (a) (i) and (ii).

Risk of physical harm

[53] The evidence clearly established that C.D. resented being required to care for K.B. She did not attend to K.B.'s needs. The fact that injuries resulted meant that there was a risk that it could happen again and therefore I would make a protection finding under s. 37 (2) (b) (i) and (ii).

Failure to obtain medical treatment

[54] The Society sought an order under s. 37 (2) (e) of the Act on the basis the child required medical treatment to prevent or alleviate physical harm or suffering and C.D. did not provide that treatment. The main evidence relied upon for this finding is found in the affidavit of Dr. Schwartz wherein she stated that "upon sustaining many of the said injuries K.B. would have experienced a great deal of pain." The broken clavicle and the brain bleed probably occurred between June 20 and June 22. The child was seen at the home on June 22 and the Society workers and the police noted that the child was crying and appeared to be in pain. C.D. had not sought medical attention after the child sustained these serious injuries.

[55] Mr. Sharpe said that the evidence as a whole showed that the mother was attentive to the child's medical needs. She had taken her to the doctor in April, May and June 2012 to address her urinary tract infection and what was ultimately diagnosed as the fungal infection in her scalp. Her family physician's letter, filed with her affidavit, set out that her other children were healthy and she took them to the doctor as needed. In fact there was no suggestion by the Society that C.D. ignored all medical care. The Society's position was only that when the child K.B. suffered physical injuries C.D. did not seek treatment. The evidence supported this conclusion. When seen on June 22 K.B. was desperately in need of urgent medical attention. She had intra-cranial bleeding and a broken clavicle.

[56] The SCAN investigation revealed that she had previously sustained a broken rib for which no medical attention had been sought. I have no hesitation in making a protection finding under s. 37 (2) (e).

Emotional harm

[57] The Society also sought findings under s. 37 (2) (f) and (g) of the legislation. The finding sought under (f) would be on the basis that the child has suffered actual emotional harm and a finding under (g) would be made if there was a risk that emotional harm may result. The evidence persuades me that K.B. did suffer actual emotional harm while in the exclusive care of C.D. and it follows that she there was a risk of further emotional harm if she was not removed from her care.

[58] K.B. did not have any known mental or emotional problems when she left Jamaica according to the medical letter from her home parish health district. She was seen as a happy child when she first attended junior kindergarten in January 2012. The school teacher noted that over time she became very sad. She had two "accidents" in her pants. She deflected and avoided any questions about how her injuries occurred, although she did blame M.M. on June 4. Finally on June 22 she made her disclosure that C.D. beat her and she became very emotional and did not want to go home.

[59] The emotional trauma that K.B. sustained may not all be related to C.D. actions or neglect. K.B. had to leave her mother's care in Jamaica to come to Canada to live with her father. Soon after she arrived her father was arrested for sexually assaulting K.Q. a teenager with whom she was living. Her father left her behind with C.D., a women she had only known for a month. It would not be surprising if K.B. felt rejected by her mother, her father, her new "step-mother," and her new "siblings" (K.Q. was not a blood relative). Furthermore, the developmentally delayed child M.M. was said to be physically aggressive with K.B.

[60] The determination of whether a child has been emotionally harmed is not a determination of the exact reason for each symptom of emotional harm that that child displays. I have no doubt that K.B. did suffer emotional harm demonstrated by serious anxiety, depression and withdrawal and I make findings under s. 37 (2) (f) and (g) of the Act.

Protection findings regarding M.M., A.B. and AA.B.

Risk of physical harm

[61] The sole criteria upon which the Society relied with respect to the other three children was s. 37 (2) (b) (i) and (ii). There was no evidence of actual injuries to those children. There was no evidence that C.D. had attempted to harm them in any way. In fact there was evidence that C.D. had attended to their individual needs. It was noteworthy that M.M. did not miss school while K.B. was repeatedly absent. There was certainly evidence that C.D. treated her own biological children much better than she treated K.B.

[62] However, in the winter and spring of 2012 C.D. repeatedly stated that she was overwhelmed in caring for all of the children. After G.B. left the home in January 2012 she was required to care for five children (as K.Q. was still there). While I have considerable doubt as to whether M.M. caused the injuries to K.B. that C.D. claimed that she did I do note that according to C.D., M.M. was physically rough with her siblings. I have already found that C.D. did not protect K.B. from injury. I have evidence from C.D. that K.B. either fell or was pushed down the stairs.

[63] At the time of the apprehension of the other three children the Society had received a verbal report from SCAN as to K.B.'s injuries (subsequently supported by Dr. Schwartz's affidavit and the written report). The injuries were very serious. The children still with C.D. were very vulnerable. The twins were only 7 months old and M.M., although 8, had the mental and emotional age of a 2 or 3 year old. There was really no doubt even at that early stage that C.D. had either inflicted K.B.'s injuries or been the caregiver in the home when the injuries were sustained. In those circumstances the other vulnerable children were clearly at risk of serious physical harm themselves.

[64] Over time the Society and the courts, both criminal and family, became aware of the singling out of K.B. for abuse within the home. With the benefit of hindsight a court might conclude after all the background information became known that the risk to the other children was nothing like the risk to K.B. given that she was the unwanted child in the home. However, the issue is whether these children were in need of protection at the time of the apprehension or at any time subsequent to the apprehension and before this hearing. I find that on June 25, 2012 C.D. was in crisis. She was in conflict with the Society and being investigated by the police who subsequently laid assault charges. At that point the M.M., A.B. and AA.B. were at risk of serious physical harm if they remained in the care of a woman who had become so overwhelmed and so angry that she would hurt a child she was caring for and/or be indifferent to the pain and suffering of that seriously injured child.

[65] Ultimately, 18 months later the three children were returned to the care of their mother C.D. The fact that the Society and the court permitted her to resume parenting does not in any way diminish the concerns that existed when they were apprehended. At that time these three children were in need of protection pursuant to s. 37 (2) (b) (i) and (ii) of the legislation.

Dismiss the proceeding

[66] Mr. Sharpe submitted that if the court were to make protection findings that this was the perfect set of facts for the court to rely upon s. 57 (9) of the Act to dismiss the balance of the proceeding. He noted that all of the children involved had been living with their biological mother under Society supervision for some time. K.B. was placed with S.J. on August 28, 2013 and the other three children were returned to the care of C.D. on February 5, 2014.

[67] Ms. Kinch stated that Mr. Sharpe had not given notice to the Society that he would be seeking this order on a Summary Judgment motion that had been scheduled to address protection findings only. She said the Society had a continuing responsibility to determine if supervision was still required. She was prepared to agree to a short adjournment of the disposition stage of this proceeding so that she could obtain instructions from her client.

[68] I accept Ms. Kinch's submission. There was no notice to the Society or the court that a dismissal of the proceeding would be sought even if protection findings were made. Although the children had been with their respective mothers for some time under supervision there was no prejudice to a short adjournment so that the Society could consider their position. I am mindful of the fact that this matter involved a very serious injury to a young child and the mother continues to parent vulnerable young children. The court will need to have sworn evidence before it related to the disposition issue.

Delay in hearing

[69] Finally the above noted submission draws attention to the unfortunate way that this matter has unfolded. The children were apprehended in June 2012 and the hearing on whether they were in need of protection did not occur until September 30, 2015 over three years later. I note that the criminal charges against the mother were resolved by her acquittal in December 2013. I understand that the parties had attempted to resolve this matter by a Statement of Agreed Facts beginning in December 2014. Nevertheless, I was advised at the outset of this motion that C.D. was not prepared to concede a protection finding on any of the criteria in s. 37 (2) of the CFSA. There is no doubt that parents are entitled to have a hearing either by trial or if appropriate by summary judgment motion on the protection finding issue. I appreciate that after a contested temporary care hearing (which resulted in the children remaining in care) the focus of counsel was on the placement issue. I understand that the primary goal of C.D. was to have her biological children returned to her as soon as possible. That occurred in February 2014.

[70] I do not mean to suggest that either counsel did anything inappropriate in the conduct of this matter. However, the structure of the CFSA is to make a protection finding a threshold issue to be determined so that the court can determine if it is necessary to make a disposition involving some level of intrusion into the life of the family. When the threshold issue is being determined over three years after the apprehension the purpose of the Act is frustrated.

[71] Delaying a protection hearing creates a number of problems. Firstly a long delay makes it difficult for possible witnesses, including those who are required to keep notes, to maintain an independent recollection of the evidence. Secondly, years after an apprehension the Society's focus should only be upon providing services, not gathering evidence to support a finding. While there is always the inherent conflict in working with a parent, and gathering evidence that may ultimately be used against the parent, that inherent conflict is exacerbated when the protection finding issue remains open. If a parent still plans to contest the finding they may have less incentive to admit the parenting issues they may need to work on. Finally, there should be no incentive for a parent to delay the protection findings hearing in the hope that by the time it is heard the children will have been returned and there will be no reason for the Society to seek such a finding.

[72] I recognize that in most cases the trial or summary judgment motion on the findings and the disposition occur at the same hearing. While the finding is a threshold issue, the evidence on one issue is often directly relevant to the other. In this matter a temporary disposition that both parties could live with, returning the children under a temporary supervision order, caused this matter to drag on for a number of further court attendances over 18 months without a final order being made. For the reasons set out above this should not happen.

ORDER

1. The statutory findings pursuant to subsection 47 (2) of the CFSA shall be as follows:

Name of Child: A.B. Date of Birth: XXXX XX, XXXX Gender: X Mother's Name: C.D. Father's Name: G.B. Religion: X Native Status: X

Name of Child: AA.B. Date of Birth: XXXX XX, XXXX Gender: X Mother's Name: C.D. Father's Name: G.B. Religion: X Native Status: X

Name of Child: M.M. Date of Birth: XXXX XX, XXXX Gender: X Mother's Name: C.D. Father's Name: D.M. Religion: X Native Status: X

Name of Child: K.B. Date of Birth: XXXX XX, XXXX Gender: X Mother's Name: S.J. Father's Name: G.B. Religion: X Native Status: X

2. The children, A.B., born XXXX XX, XXXX, AA.B., born XXXX XX, XXX, and M.M., born XXXX XX, XXXX, shall be found to be in need of protection, pursuant to clauses 37(2)(b)(i), and 37(2)(b)(ii), of the Child and Family Services Act.

3. The child, K.B., born XXXX XX, XXXX shall be found to be in need of protection, pursuant to clauses 37(2)(a)(i), 37(2)(a)(ii), 37(2)(b)(i), 37(2)(b)(ii), 37(2)(e), 37(2)(f), and 37(2)(g) of the Child and Family Services Act.

4. This matter is adjourned to November 18, 2015 at 9:30 a.m. in courtroom 208.

Released: October 15, 2015

Justice Philip J. Clay