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

Date: September 25, 2020

Court File Number: 20-68

Ontario Court of Justice at Orangeville

Between:

The Children's Aid Society of the County of Dufferin Applicant

and

E.F. and D.M. Respondents

Before: Justice B. E. Pugsley

Heard: September 23, 2020

Released: September 25, 2020

Appearances

• Applicant: Ms. K. O'Grady
• Respondent (Mother, E.F.): Ms. A. Woodley
• Respondent (Father, D.M.): Self-represented

Endorsement

Background and Parties

[1] The Respondents are the parents of B. (F), (DOB: […], 2019) ("B").

[2] On September 8, 2020, a social worker employed by the Applicant ("CAS"), Tina Nicholson, brought B. to a place of safety without a Warrant.

[3] On September 14, 2020, the matter came before the court for the purpose of a temporary order on the Motion of the Applicant. The Respondents asked for an adjournment to prepare responding material and seek legal advice. The matter was adjourned on a without prejudice basis to September 23, 2020 at 2:15 pm for the Applicant's motion. The Respondent (Mother) retained counsel and served and filed an affidavit and cross-motion. The Respondent (Father) has not yet filed material and at the hearing of the motions supported Ms. F.'s plan.

Relief Sought

[4] The Applicant seeks a temporary child protection order placing B. in their care with access to the parents in their discretion.

[5] The Respondent (Mother) seeks an order that B. be returned to her care under CAS supervision.

Facts Leading to CAS Involvement

[6] The facts leading up to the removal of B. from Ms. F.'s care are mildly disputed at this point. Ms. F. and B. were staying at the maternal great-grandmother's home, Ms. C. Ms. C. observed what she felt was concerning and neglectful behavior by the Respondent (Mother) which impacted B.'s safety. She called the police.

[7] Ms. C. told the police and later the CAS that Ms. F. was intoxicated, that she was locked in her room with B. and that she was yelling and screaming.

[8] Ms. C. reported to Ms. Nicholson that Ms. F. had come to stay with her and her husband before B.'s birth. She had not consumed alcohol to her knowledge during her pregnancy but had used marijuana. When B. was about four months old Ms. F. had started to consume alcohol regularly to the point of intoxication and continued to use marijuana.

[9] Ms. C. found Ms. F. to be a good parent when she wasn't drinking. Unfortunately, when her granddaughter drank, she was not attentive to B. Her granddaughter's room was filthy and the Respondent (Mother) was disheveled. She co-slept in her messy bed with her infant child. Soiled diapers accumulated. Worst, Ms. F. had become increasingly angry with B. and her grandmother. The great grandmother had heard Ms. F. yelling at her infant to "Shut up".

[10] When Ms. C. called the police, they attended at her home at about 1:30 am. The police came and heard Ms. F. yelling and crying upstairs. They attended at her room and had a hard time opening the door because of piles of clutter and clothes on the floor. The Respondent (Mother) was upset, hysterical, crying, unkempt, intoxicated and there was drug paraphernalia and a large marijuana bong in the room. B. was awake and lying on the bed. Dirty diapers were apparent as was an almost empty box of wine.

[11] The Respondent (Mother) told the police that she suffered anxiety and used marijuana and alcohol to cope.

[12] Ms. F. was transported to hospital for medical assessment. After the hospital visit the attending physician reported to the CAS intake worker that the Respondent (Mother) had presented as intoxicated, yelled at the staff and declined medical involvement. She left the hospital.

[13] Ms. Nicholson attended at the home later September 8, 2020. She observed the living arrangements for the child in Ms. F.'s room and confirmed what others had reported. Ms. C. showed her many empty alcohol containers. Ms. F. had returned to the home, removed the child and told her grandmother that she would never see the child again.

[14] Ms. Nicholson found Ms. F. at the Respondent (Father)'s house with the child. She explained that she was concerned for B.'s safety and was removing her from their care pending a motion. The Respondents were cooperative. The Respondent (Mother) indicated that she was planning to move to a local woman's shelter immediately and wished to have B. stay with her there.

Respondent Mother's Account

[15] Ms. F.'s affidavit describes the situation leading up to the CAS involvement. Her affidavit states that Ms. C.'s husband was verbally abusive and unkind and that he was prejudiced because the child was bi-racial. Her situation in her grandmother's home was increasingly uncomfortable.

[16] She denied drinking to excess and stated that her grandmother and Mr. C. were non-drinkers who overestimated her alcohol use. Ms. F. believed that her grandmother was provoking her in order to have her move out and that what she told others was tainted by the desire to have her leave.

[17] Ms. F. states in her affidavit that she and her grandmother argued during the night before the police came. Ms. C. wanted B. to sleep in the office in her playpen. Ms. F. declined stating that B. would sleep with her. The Respondent (Mother) closed the bedroom door and B. went to sleep. She did not yell at B. She and Ms. C. yelled at each other.

[18] Ms. F. ordered a pizza and drank some wine around 11 pm. She contacted Mr. M. and arranged to move to his place in the morning.

[19] The attendance of the police upset her. They asked her why she was drinking and smoking marijuana. She said that she only did that after B. went to sleep. The police told her that B. would be spending the night with Ms. C. and that she would have to go to the hospital or to jail.

[20] The paramedics took her to the hospital where she was able to have a dose of her anti-anxiety medication which ended her panic attack. She then had no need to be at the hospital.

[21] Ms. C.'s statements to the CAS and the police were exaggerated. The alcohol containers had accumulated over a lengthy period. The messy room was because she had packed to leave.

[22] Paragraph 17 of Ms. F.'s affidavit dated September 21, 2020, addresses her alcohol consumption. She acknowledges that she has consumed alcohol and marijuana periodically "however not while directly providing care for B. B. has been sleeping through the night for months and I would sometimes do this after B. was asleep." The Respondent (Mother) states that it had never been explained to her that she cannot be impaired when B. is in her care and that now that she understands this it will never happen again. This was a single uncharacteristic incident.

[23] The Respondent (Mother) describes her routine with B. and that they have an unbreakable bond. Her plan is to reside with B. under CAS supervision at Family Transition Place in Orangeville. She proposes substance abuse and other counselling and random drug and alcohol tests. She does not believe that she is addicted to alcohol or drugs but is prepared to be counselled about these issues.

Criminal History and Prior Conduct

[24] There is another source of relevant information here that I cannot discount and which I advised counsel about at the hearing of the motion.

[25] As I advised the parties and counsel, Orangeville Ontario Court of Justice is a smaller two judge court location. I am a criminal court judge, but I also do almost all the family case management. In some larger locations hybrid Integrated Domestic Violence Criminal and Family Courts have been established. In Orangeville this is the informal norm because there have frequently been cross-over facts between the criminal court and the family court here. This case, although not engaging domestic violence, has a cross-over element. Allegations that come before me in the criminal court on the public record may contain elements that could be concerning in the family court context.

[26] It is an absolute truth that criminal allegations are just that, unproven assertions. Every defendant has the right to be considered not guilty until found guilty by a court on the criminal standard of proof. It is also true that the standard of proof in a family law case is a lower standard of proof on a balance of probabilities. Some criminal defences, for example the exclusion of evidence due to a finding of a breach of the Canadian Charter of Rights and Freedoms, may not be relevant in the civil context.

[27] Current criminal allegations exist that bear on both Respondent parents. Both have appeared before my criminal court by retained counsel. Mr. M. is at large on serious allegations involving alleged violence and drugs. Ms. F. is at large on charges related to drinking and driving. Those allegations include evidence that she was tested on an Intoxilyzer 8000C approved instrument and when tested her blood alcohol level was 240 mg of alcohol in 100 ml of blood. Her initial form of release contained a term that she not consume alcohol. Those charges, stalled by the COVID-19 crisis, have been pretried by me and will be tried before another justice in the future.

[28] As I commented to counsel a high BAC such as that found by the approved instrument in Ms. F.'s case may be an indication that her alcohol issues are greater than she acknowledges at this time. The approved instrument, operated properly, is highly accurate and has been acknowledged as such by Parliament in the Criminal Code and by repeated expert evidence in my courts over the last eighteen and a half years as a criminal justice. Defence challenges to excess alcohol driving offences focus on Charter issues since the presumed accuracy is legislated and virtually unassailable. There is a strong civil law case to be made that the Respondent (Mother) – on that occasion – was driving drunk. It is not the criminal aspect of this that is concerning. In the context of the civil standard it is an indication of a previous state of gross intoxication. The Respondent (Mother) does not address this incident in her material.

[29] My reason for raising this issue is that it is possible that the Respondent (Mother)'s self-assessment of her alcohol use is naïve. Further, at paragraph 15 she states that she is not accustomed to police involvement. At paragraph 18 she states that this is a single atypical event. She readily agrees that she has been consuming alcohol despite the initial terms of release. I do not know if those terms were later varied.

[30] The drink-drive allegations long predate B.'s birth. I accept that her birth resulted in a profound change in Ms. F.'s outlook. She and B. are a family. Their links are obvious and profound. The best goal for Ms. F. for herself and B. is to follow through on her stated plan to remain clean and sober.

Parenting Capacity

[31] Both sides agree that when Ms. F. is sober, she is a good parent. Two reference letters also speak to her observed parenting skills although neither mentions her alcohol consumption. She has reached out recently and embraced a spectrum of community resources.

CAS Position

[32] The CAS position is that Society care is needed for the time being at least to protect B.'s safety. They point to the test established by sub section 94(4) criteria under the Child, Youth and Family Services Act (2017) ("CYFSA") which sets an arguably low standard with regard to continued society care during an adjournment period:

"the court shall not make an order under clause (2)(c)" [placement with a person other than the person who had care of the child at the time the child was taken to a place of safety] "or (d)" [remain in the care of the society] "unless the court is satisfied that there are reasonable grounds to believe that there is a risk that the child is likely to suffer harm and that the child cannot be protected adequately by an order under clause 2 (a)" [return to the person having custody when the child first came into care] "or (b)" [remain in that person's care under CAS supervision]. (interlineations and italics added).

[33] The agency notes that B. is an infant and that she is therefore very vulnerable to neglect.

[34] The agency is optimistic about Ms. F.'s proposed plan. Their position simply put is that it is still early goings here and that Ms. F. has several complex issues to address. Wait and see and then move to supervision if her progress warrants that. In the meantime, access has been three times a week supervised by the CAS for one hour each visit.

Respondent Mother's Position

[35] Ms. F.'s position (supported by Mr. M.) is that there is no risk to B. now. She will be staying at a local (renowned in my experience) woman's shelter and the CAS will be supervising B. in her care. The events of September 8, 2020 have been a rude awakening and she is committed to being clean and sober and partaking in any counselling that she needs to re-chart her future with her child.

[36] The Respondent (Mother) notes that the root of her issues here was drinking and that therefore she is committed to not drink.

[37] Others, including notably her grandmother, recognize that she is a good mom to B. when she is not drinking.

[38] Ms. F. notes that B.'s tender age cuts both ways: she is separated from her mother at a very young and impressionable age.

Legal Framework

[39] Caselaw under the predecessor of the current Act establishes that the court must look at the circumstances that were established by credible and trustworthy evidence which existed at the time the child was taken into care.

[40] Notably while the wording of the criteria for a temporary order as set out in sub section 94 (4) does contain language that arguably sets a low bar for continued agency care, another approach might be that the language emphasizes the wide discretion available to the court at the very earliest stages of a child protection proceeding to match its decision to the facts of the individual case.

[41] It is clear that temporary CAS care is intended to be the last resort after less intrusive orders are considered. In many cases the need for an order under sub section 94(2)(d) is so urgent as to be self-evident.

[42] This is not one of those cases.

Analysis

Initial CAS Intervention Was Justified

[43] In this case the need for CAS intervention on September 8, 2020, is clearly made out.

[44] I do not accept Ms. F.'s self-assessment that she was not intoxicated: the other evidence from persons who had not been drinking is crystal clear. Further I accept the evidence attributed to Ms. C. that the Respondent (Mother) had been periodically intoxicated on a weekly or bi-weekly basis from about B.'s four-month birthday. Ms. F. admitted to the police that she drank and smoked marijuana "to cope". The effects of that slide into substance abuse are visible in the shambles of her shared bedroom with B. There was debris and soiled diapers and open drug use. She was co-sleeping with B. in her bed while intoxicated – a recipe for disaster. By her own evidence her argument with her grandmother started because Ms. C. wanted B. to sleep in her playpen set up in another room and she refused.

[45] I accept that when intoxicated Ms. F. did uncharacteristically chastise her baby.

Risk Can Be Mitigated Through Supervision

[46] The evidence before me at this very earliest stage of the application does disclose a "risk" but in my view the Respondent (Mother)'s plan for CAS supervision allows the risk to be mitigated by terms of residence and CAS supervision, and that while a temporary order under sub section 94 (2) (a) is not sufficient to protect B., an order under sub section 94 (2) (b) will do so and represents the least level of society involvement that protects B. in her best interests at this time.

Consideration of CYFSA Preamble and Purposes

[47] In my view the CYFSA deliberately sets out to address and change some of the inequities that critics have alleged existed in the former act (the Child and Family Services Act). While the wording of section 94 of the new act parallels the wording of the former act's section 51, section 94 should be read with the Preamble and Purposes of the CYFSA in mind. Those emphasize the child focused intent of the new act and in particular the requirement that the court consider the diversity of the children who are the subject of protection applications and the effect of unconscious bias and systemic racism. That B. may choose to self-identify as a person of colour when she is older is a factor that in my view should be considered, even at the first court appearance.

[48] There is no basis to suggest that B.'s bi-racial heritage played any role in the decision to take her into temporary CAS care here. As I have found, there was a clearly valid basis to do so at the time. The CAS here however seeks to place her in the care of the society with access in the agency's discretion. No information is provided as to whether B.'s heritage will play a role in her placement, nor whether resources exist to even consider how her placement could be made to consider the Preamble and Purposes of the new act. Access to date has been minimal. No one points to problems with B.'s care during access nor any problems experienced by the Respondent (Mother) at Family Transition Place where she has resided for two weeks.

Family Transition Place as Residence

[49] When I consider whether placing B. in the care of Ms. F. subject to CAS supervision, I am much comforted by her acceptance that such supervision would include restrictions on where she will reside with B. and what plans she will agree to with regard to testing, counselling and supervision. She proposes to reside at Family Transition Place (FTP) Orangeville, a woman's shelter I am very familiar with. She is already there. Children routinely accompany their mothers to this residential shelter. There are provisions where appropriate to transition to second stage housing in the community.

[50] Ms. F.'s acceptance of FTP as her residence demonstrates to me her commitment to change to be the best mom she can for B.

Best Interests of the Child

[51] B.'s best interests are to be safely with Ms. F.

[52] In my view there is very little risk to B. at this time provided that the CAS supervises her care at FTP.

CAS Track Record

[53] The local CAS is always very supportive and optimistic when approaching their goal that in virtually all cases families can and should be safely reunited. Their track record is unparalleled in the Province to my knowledge. Virtually all of their cases are settled. There has not been a contested CAS trial in Orangeville in 17 years.

[54] Essentially the CAS position is that Ms. F. has taken good steps to enter FTP and that when she's proven herself there then they fully expect to add more and more access until once more B. is living full time with the Respondent (Mother) under supervision. I will go further than that: B. is going to be supervised in the Respondent (Mother)'s care, now.

Conclusion on Temporary Order

[55] In short, the Applicant has clearly established that the child cannot be returned to Ms. F.'s care without intervention under sub section 94 (2) (a). Ms. F.'s evidence allows me to find that B. may safely be returned at this time to her care pursuant to sub section 94 (2) (b).

Terms of Supervision

[56] The Applicant did not make submissions on what terms of supervision would be applicable to a temporary order of CAS supervision. I will set out basic terms here with the expectation that the parties may agree on other terms or seek further guidance from the court should this order be insufficient or unclear.

[57] In order to allow for B.'s transition to her mother's care at FTP this order will be effective not later than Tuesday September 29, 2020 at 3:00 pm. Parties may agree to a placement before that time under the existing temporary without prejudice order as extended access.

Access to Father

[58] Access to Mr. M. was not addressed at the motion/cross-motion, and he has filed no material. In the absence of essentially any evidence on point I will leave access by B. to her father as access in the discretion of the CAS at this time.

Costs

[59] No party sought to address costs and no Respondent has yet filed any material on the Application proper. The agency's act to remove B. to their care temporarily was patently justified. No costs are appropriate on this motion.

Order

[60] I therefore make the following temporary order, not on consent:

1. Effective Tuesday, September 29, 2020, at 3:00 pm, the child B. (F)(DOB: […], 2019) shall be placed in the temporary care of the Respondent (Mother) E.F., subject to the supervision of the Children's Aid Society of the County of Dufferin, and subject to the following conditions:

(a) The child will reside with the Respondent (Mother) at the Family Transition Place woman's shelter in Orangeville, Ontario, or at such other place agreed to between the Applicant and the Respondent (mother) in writing or pursuant to further court order;

(b) The child will sleep in her own safe sleeping crib or bed;

(c) The child shall not be removed from the County of Dufferin without the written consent of the Applicant agency;

(d) Staff, volunteers and/or counsellors at Family Transition Place may access the child's room at reasonable times during the daytime in accordance with their practices and procedures;

(e) The Respondent (Mother) shall consume no alcohol or drugs when the child is (i) in her care, or (ii) will be in her care within the next 12 hours;

(f) The Respondent (Mother) shall submit to such random drug and alcohol tests as may be established by the Applicant and shall consent to the Applicant receiving the results of such tests directly from the testing agency;

(g) The Respondent (Mother) will make herself and the child available to the Applicant's representatives and social workers, including both visits by pre-arrangement or without notice at reasonable times, including while in the community;

(h) The Respondent (Mother) shall participate in such assessment and counselling programmes as may be directed by the Children's Aid Society of the County of Dufferin in consultation with the Respondent (Mother) and Family Transition Place and/or Doctor Stenning, with regard to alcohol abuse, substance abuse, parenting, and/or mental health issues, and will cooperate in the Applicant agency having access to her care providers and those of the child, including signing all releases and consents required by the various caregivers to enable them to communicate directly with the Applicant agency.

(i) The Respondent (Mother) shall take the child to the child's regular and other medical appointments as recommended by Dr. Stenning or his delegate;

(j) The Respondent (Mother) shall cooperate in such access between the child and the Respondent (Father) D.M. as may be arranged between the Applicant and the Respondent (Father) and in accordance with the child's normal routine where possible; and,

(k) Such further and other terms as may be agreed to by the Applicant and the Respondent (Mother) or ordered by the court.

2. Pending further court order or agreement, access between the said child and the Respondent (Father) shall be access in the discretion of the Applicant agency.

3. Variations of this order made on consent may be addressed by consent motion in chambers.

4. No costs.

5. Adjourned to November 4, 2020, at 9:30 am as already endorsed (appearance remotely by Zoom application).

Justice B. E. Pugsley, OCJ at Orangeville