WARNING
The court hearing this matter directs that the following notice be attached to the file:
This is a case under Part V of the Child, Youth and Family Services Act, 2017 (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:
87.— (7) Order excluding media representatives or prohibiting publication.
Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, 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, the court may make an order:
(c) prohibiting the publication of a report of the hearing or a specified part of the hearing.
87.— (8) Prohibition re 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.
87.— (9) Prohibition re identifying person charged.
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.
142.— (3) Offences re publication.
A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(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: 2019-05-15
Court File No.: North Bay C-19-042
Parties
Between:
Children's Aid Society of the District of Nipissing and Parry Sound
Applicant
— AND —
K.C-B. (Biological mother)
and
D.P. (Biological father)
Respondents
Before the Court
Before: Justice E. J. Lainevool
Heard on: May 13, 2019
Reasons for Judgment Delivered Orally on: May 15, 2019
Counsel
- H. Zuck — counsel for the applicant society
- S. Sikora — counsel for the respondent mother
- P. Rutland — counsel for the respondent father
Decision
LAINEVOOL J.:
The Issue
[1] The immediate issue before this court is whether the female child, born [...], 2019, is a child in need of protection pursuant to Section 74 of the Child, Youth and Family Services Act.
Belief of the Society
[2] The Society apprehended the child on the basis of a perceived lack of preparedness by the Respondent Parents. The Society relies specifically on a few enumerated concerns: possible substance abuse (smoking marijuana), the Respondent father's youth justice system involvement and possible anger management issues, lack of engagement with the Society for pregnancy planning, and that the Respondent parents did not have items required for the baby's discharge with them in hospital.
Background Facts
[3] The Respondent parents came to the attention of the Society when they were observed in the home of a family member of the Respondent father during a separate Society investigation.
[4] The subject of that unrelated investigation would not provide the Society with information about the Respondent parents at the request of the Society and so a birth alert was issued requesting that the North Bay Regional Health Centre contact the Society upon the birth of the Respondent mother's child.
[5] This court heard some information that the Respondent parents each had past involvement with the Society as children.
[6] On January 10, 2019, the Society was advised that the Respondent mother was receiving care at the hospital.
[7] Between January 14th and February 6th, 2019 there were communications between Kimberly Robinson, a Pregnancy Planning worker with the Society, and the Respondent mother.
[8] The Respondent mother received medical care prior to the birth through her physician, Dr. Buckley, an Obstetrician, Dr. Waja and in hospital. During a hospitalization due to the Respondent mother experiencing health difficulties, the decision was made to induce labour on February 19, 2019. The Respondent mother's original due date was early March. Counsel made submissions about additional medical treatment received by the Respondent mother in hospital prior to the birth, but there is no evidence in any of the affidavits about the duration of those attendances or whether the Respondent mother was admitted to hospital on those occasions.
[9] The child was born [...], 2019. The child was apprehended by Warrant on February 15, 2019.
Finding in Need of Protection
[10] The Society seeks a finding that the child is in need of protection pursuant to subsections 74(2)(b)(i) and (g).
[11] That is, that there is a risk the child is likely to suffer physical harm from the Respondent parent's failure to adequately care for, provide for, supervise or protect the child.
[12] And, that the child has suffered, or is at risk of suffering emotional harm.
[13] The Society has the onus, on a balance of probabilities, to establish that the child is at risk of harm.
[14] The risk of harm must be real and likely, not speculative.
[15] Child protection proceedings are unlike ordinary civil litigation and the court can choose a flexible approach that would admit evidence related to finding arising at any time up to the date of the court hearing, subject to adequate disclosure to all parties. The parties had disclosure of the relevant evidence in this case.
[16] Exposure to a pattern of domestic violence has been accepted as creating a risk of emotional harm.
Analysis
[17] The paramount purpose of the CYFSA is to promote the best interests, protection and well-being of children.
[18] As Justice Zisman wrote at paragraph [116] of her decision in Catholic Children's Aid Society and N.N., submitted to this court by the Society in this proceeding:
The protection finding is an essential stage of a child protection proceeding. If a finding is not made, then there will be no other orders…and the case is over.
[19] The Respondent parents came to the attention of the Society not due to their actions, rather due to being present in the home of a relative of the Respondent father whom the Society was investigating. The Respondent parents are young, and it is not surprising that their youth would have heightened the interest of the Society worker as the Respondent mother was, apparently, visibly pregnant at the time.
[20] The Court suspects that the prior involvement with the Society of each of the Respondent parents when they were children may also have contributed to the Society's interest in the Respondent parents.
[21] However, youthful inexperienced parents are not presumed to be unable to parent their children. And it is the Society who must demonstrate, on evidence, that inability.
Marijuana Use
[22] The Society argues that evidence of marijuana use by the Respondent mother founds a protection concern.
[23] At paragraph 21 of the Affidavit of Lisa Sellers, the worker alleges that the Respondent mother was diagnosed with Hyperemesis "which is due to the fact that she smokes marijuana daily".
[24] This statement is said to be based on information received from Sonya Solman, a Social worker with the North Bay Regional Health Centre. In essence, this is a hearsay statement about a hearsay statement about a medical opinion the source of which is not attributed. There is no evidence from a medical practitioner.
[25] The Respondent mother affirms that she received pre-natal treatment throughout her pregnancy and she does not adopt the suggestion that any doctor diagnosed her medical condition as being due to smoking marijuana.
[26] Further, other than the Respondent parents' references to smoking marijuana, there is no other evidence concerning their use of marijuana. The Respondent mother's prenatal physician provided a letter of support, Exhibit A to her Affidavit at Tab 6, which makes absolutely no reference to concerns around the use of substances.
[27] This court is not satisfied that there is evidence of a likely risk of harm to the child as a result of possible marijuana use by either Respondent parent.
Respondent Father's Youth Justice Involvement and Anger Management Issues
[28] The Society argues that the Respondent father may have anger management issues. In paragraph 15 of the Affidavit of Lisa Sellers dated February 19, 2019, she argues that the concerns raised about anger management issues are due to the Respondent father being on Probation for a mischief charge. There was no explanation in the evidence about how the Society equated mischief with anger management.
[29] The Respondent father deposes that his involvement in the Youth Justice system commenced when he was 14. The evidence before this court is that the Respondent father committed mischief (property damage) and was adjudged a period of Probation which was completed sometime before April 2019.
[30] The only potentially relevant evidence before this court concerning this category is contained within the Affidavit of Cathy Love at Tab 14 of Volume 1. Ms. Love outlines some examples of the Respondent father having some difficulties with emotional regulation and communication with the Respondent mother.
[31] At paragraph 33, Ms. Love deposes that after one incident of the Respondent father leaving during the child's bath time during access, the paternal grandmother interrupted the Respondent mother's bathing of the child to raise the issue of who "was to blame for [the Respondent father's] behavior". When Ms. Love redirected the paternal grandmother, she responded that "they both get like that after visits".
[32] It is hardly a surprise that the Respondent parents exhibit frustrations at stressful times, including during or shortly following visits.
[33] What is clear in the Affidavit of Cathy Love is that when the Respondent father struggles the Respondent mother remains focused on the child and also does attempt to engage the Respondent father.
[34] The Society has not demonstrated how the Respondent father's emotional dysregulation at times, and apparent rudeness toward the Respondent mother, creates a risk of physical or emotional harm to the child.
Lack of Engagement or Pregnancy Planning with the Society
[35] The Society argues that between January 14th and the child's birth, the Respondent parents failed to engage with the Society and that failure demonstrates a risk of physical or emotional harm to the child.
[36] The history of that communication is outlined in the Affidavit of Kimberly Robinson at Tab 18. Ms. Robinson indicates that she spoke to the Respondent mother on January 14th. At paragraph 4, Ms. Robinson writes "I had a telephone conversation with [the Respondent mother] regarding a visit on January 15, 2019 at the office after their appointment with Dr. Waja" the worker goes on to refer to this "visit" as a "scheduled meeting". From the contents of this paragraph, the court is unable to say whether the Respondent parents were told it was a visit, or a scheduled meeting – those two things could hardly be less similar.
[37] At paragraph 5 Ms. Robinson indicates that she rescheduled "the home visit" of January 21st, without ever deposing how that home visit had been scheduled. Presumably she must have spoken to the Respondent mother to arrange the home visit and obtain the home address but she provides no information about that in her Affidavit. It was Ms. Robinson who cancelled that scheduled visit.
[38] At paragraph 6, Ms. Robinson refers to a visit being rescheduled from January 24, 2019, to January 30, 2019.
[39] It was the Respondent mother who rescheduled the January 30th visit. She did so by leaving a voice message for Ms. Robinson advising that she was going to be in North Bay and would appreciate a call back.
[40] Ms. Robinson deposes that she and the Respondent mother scheduled a meeting for January 31, 2019 and then provides no information about whether that meeting occurred or was cancelled. The next paragraph, paragraph 10, indicates that the Respondent mother called on February 6th and left a message that she would be unable to make her appointment that day. Again, there is no information in the Affidavit about whether there was a meeting scheduled for February 6th, or when or how that meeting was scheduled.
[41] The worker deposes that she spoke to the Respondent mother on February 6th and was advised that the Respondent mother was unwell and would be staying in North Bay. It appears that the worker accepted that the Respondent mother was unwell and suggested that they speak the following week, on February 11th, to "set something up."
[42] It was purportedly during this last telephone call that Ms. Robinson deposes that she explained to the Respondent mother that if they did not meet before the baby was born another worker would do an assessment at the time of the baby's birth.
[43] The Respondent mother deposes, in her Affidavit of May 10, 2019 at Tab 19 that she was in hospital prior to the birth of the child for four days and three nights. Four days before the child was born would have been [...], 2019, the day before Ms. Robinson asked the Respondent mother to contact her to reschedule their meeting.
[44] It is far from clear in the evidence before the court that the Respondent mother failed to engage in pregnancy planning. Frankly, the evidence suggests that the Respondent mother was under the care of medical physicians for a significant portion of the one month of contact between her and the Society.
Preparedness for Baby's Discharge from Hospital
[45] The Society argues that the Respondent parents did not bring items to the hospital for the baby and many of the items they did have access to were not in their immediate possession.
[46] The Respondent mother's original due date was said to be March 5, 2019 (Affidavit of Respondent Mother dated April 2, 2019; page five of Exhibit A).
[47] The Respondent mother's original plan following the birth was to reside with her grandmother, L.C. The Respondent parents were residing with L.C. prior to her travelling out of the country. It was anticipated that L.C. would return prior to the child's birth in March.
[48] In her Affidavit of April 2, 2019, L.C. deposes that the family, the Respondent parents relying on L.C. for support and assistance, did have necessary items for the child's arrival including a "bassinet, clothes, towels, wash cloths etc."
[49] The early arrival of the child appears to have found the Respondent parents ill-prepared for the first few days of parenthood. This does not equate, in the court's view, to unfitness to parent.
Other Important Facts Concerning the Apprehension
Sub-facial Validity
[50] The Society apprehended the child by Warrant issued by Justice of the Peace R. Beck. A copy of the face of this Warrant is found as Exhibit A to the Affidavit of Lisa Sellers sworn February 19, 2019 at Tab 3 Volume 1. There was no evidence led in the course of this Finding hearing which clearly indicated what information was before the Justice of the Peace when the warrant was issued.
[51] If the issuance of the warrant was based on the information that was incorporated into the Society's Application four days later, this court has serious concerns about the sub-facial validity of the warrant.
[52] In particular, the contents of paragraphs 5, 11, 12, 14, 15, 16 and 18 are, at best, misleading. I have already addressed paragraph 5 previously in these reasons. With respect to the other paragraphs these are the most obvious concerns:
Paragraph 11: As already indicated, the Respondent mother was hospitalized for her own health reasons and the decision to induce early was not known at the time she attended the hospital.
Paragraph 12: The Respondent father's involvement with the Youth Court was not recent.
Paragraph 14: There is no evidence from the Society about the Respondent mother's prenatal care, but Exhibit A to her affidavit clearly outlines extensive pre-natal care by her primary care physician and the delivering Obstetrician.
Paragraph 15: The Society was not, on their own evidence, in a position to know anything about the Respondent parent's "follow through" or what such assistance was required by them.
Paragraph 16: The Society made scant efforts to understand the parent's plan to care for the child. The child is currently placed with L.C., it was exactly the parents plan following the birth of the child that they would be residing in the home of L.C.
Paragraph 18: The Respondent parents were temporarily residing in the home of the paternal grandmother to the child. This is not the home that was connected to the Society's initial observation of the Respondent parents and that is not clear in the Application.
The Society has a duty, when acting in an ex parte manner, to be full frank and fair in the information provided. This is particularly so when, as in the case of the CYFSA warrant process, there is no statutory provision to challenge the warrant.
[53] This court cannot be sure what exact information was before the Justice of the Peace, however, the Application put before this Court after the child had been apprehended is not full, frank and fair in many respects.
Facial Validity
[54] This Warrant to Apprehend Child is incomplete and thus its facial validity, in any other circumstance but the CYFSA, would be subject to challenge.
[55] The Warrant signed by the Justice of the Peace does not indicate the child's location. While the law provides for the issuance of a Warrant to apprehend in circumstances where the child's location is unknown, the absence of that information in this warrant is not in accordance with the law.
[56] The Society knew the location of the child and included that information in the details below the signature of the Justice of the Peace. This court cannot know what effect, if any, the absence of this information had on the decision of the presiding Justice of the Peace to issue the warrant.
[57] The power to apprehend a child from its parents is awesome in scope. The state sanctioned removal of a child from the care and custody of the parents in the hours immediately following birth is, and should be, a power that is exercised sparingly and only in circumstances where there is clear evidence of a risk to the child.
[58] A warrant should be technically perfect before the state authorizes this action; this warrant is not technically perfect and there is no explanation for that fact.
Prenatal Care
[59] The Society alleged in their Application a failure by the Respondent parents to adequately prepare for the arrival of this child. The Society's lack of knowledge about the preparations does not equate to a failure to prepare.
[60] The Respondent mother has filed proof that she attended prenatal medical appointments.
[61] Further, the letter filed as an Exhibit to her Affidavit from Dr. Buckley confirms that the Respondent parents attended their prenatal appointments with family support. The extended family of the Respondent parents were involved in the pregnancy planning with the Respondent parents.
[62] The Respondent mother consistently attended the hospital for medical concerns during the final weeks of her pregnancy, indeed, this is how the Society located her.
Post-Apprehension Observations of the Society
[63] The Society argues that the supervised visits of the Respondent parents with the child revealed difficulties in the communications and interactions of the Respondent parents.
[64] Although the legislation permits the court to consider evidence up to and including information available at the time of the Finding hearing, in some cases to do so is unfair. The observations of the Respondent father's frustration and difficulties in the supervised visit context is such an example.
[65] The observations of the Respondent father also becoming emotionally overwhelmed in that circumstance is evidence that he requires supports and assistance in his role as a parent. The Respondent mother's ability, even in that stressful environment, speaks to her apparent suitability for the demands of parenting an infant. It was also noted in the Affidavit of Cathy Love that the Respondent mother accepted direction from her and incorporated suggestions made into her child care approach.
[66] The Affidavit of Sherell Pizzoferrato describes conflict that occurred between the Respondent parents and the paternal grandmother on May 9, 2019. What is clear to the court from the contents of the Affidavit is that the worker came into the middle of a heated family argument that had no relation to the Respondent parents' abilities to parent. It did not escape this court's notice that the only reason the Respondent parents were in a situation to have to rely on the paternal grandmother at all, was that they were prevented from residing in their habitual residence by the court Order placing the child with L.C. I place no weight on the affidavit of Ms. Pizzoferrato in respect of the issue before this court.
[67] Although there is evidence that the Respondent father struggles at times with emotional control and can be resistant to feedback there is no evidence before the court that would suggest that this behavior can be likened to domestic violence. The court finds as a fact that there is no evidence of domestic violence of the nature that would carry a risk of emotional harm to the child due to exposure.
[68] The Respondent parents cannot be expected to be perfect; perfection is not the statutory standard.
Conclusion
[69] The Respondent parents are young and they are inexperienced; as are all first time parents. Recognizing this, it was their plan to reside with L.C. and to accept her assistance with the child. This was a reasonable, and responsible, plan.
[70] The onus is on the Society to prove on a balance of probabilities that the child is at risk of harm. The risk must be real and not speculative.
[71] On the evidence that has been presented, this court is not satisfied that there is a likely risk that physical harm will be inflicted on the child as a result of the Respondent parents' failure to adequately care for, provide for, supervise or protect the child.
[72] The court is not satisfied that the requirements of Section 74(2)(b)(i) existed at the time of apprehension nor at any time subsequent to the child's apprehension.
[73] In oral submissions the Society sought to rely on Subsection (g) as well, which the court took to incorporate subsection (h) as they are interdependent. There is no evidence before the court capable of satisfying me, on a balance of probabilities, that the child was ever at risk of emotional harm let alone that she has suffered such harm.
[74] The court is unable, on the evidence available, to make a finding on a balance of probabilities that the female child, born [...], 2019, is a child in need of protection pursuant to Section 74 of the Child, Youth and Family Services Act.
Released Orally: May 15, 2019
Justice E. J. Lainevool
This version differs from the oral decision delivered in Court. Identifying information has been redacted from this version.