Children’s Aid Society (Ottawa) v. A.F., 2019 ONSC 2771

WARNING

This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Services Act, 2017, which deals with the consequences of failure to comply, read as follows:

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.

(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 File and Parties

COURT FILE NO.: FC-15-472-2 DATE: 2019/05/03

ONTARIO SUPERIOR COURT OF JUSTICE

IN THE MATTER OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017, S.O. 2017, c. 14, Sched. 1

AND IN THE MATTER OF A.M.R. born XX, 2010 and C.R.F. born XX, 2014

BETWEEN:

Children’s Aid Society of Ottawa Applicant – and – A.F. (Mother) Respondent C.R. (Father) Respondent

Counsel: Tara MacDougall, for the Applicant Dominque Smith, for the Respondent Mother Cheryl Hess, agent for Danielle Dworsky, for the Office of the Children’s Lawyer

Heard: April 24, 2019

Endorsement

[1] The Children’s Aid Society of Ottawa (“Society”) seeks an order that the children A.M.R., born XX 2010, (“M.”) and C.R.F., born XX 2014, (“C.”) be placed in the temporary care and custody of the Society pending disposition of the application where the Society seeks extended Society care.

[2] The respondent A.F. (“the mother”) seeks to have the children returned to her care under the terms of a supervision order.

[3] The respondent C.R. (“the father”) is currently serving a four year sentence for criminal convictions in regard to his older children. He has not been served with court documents in regards to this proceeding as the Society is still trying to determine where he is currently imprisoned.

[4] Counsel for the Office of the Children’s Lawyer (“OCL”) supports the mother’s request to return the children to her care under a supervision order.

[5] I have reviewed 16 affidavits filed in the Continuing Record, the trial decision of Justice Roger, the trial decision of Justice Maranger, the Family Court Clinic assessment and the transcript of proceedings, reasons for judgment of Justice Parfett in the breach of conditional order hearing and facta filed by the parties.

[6] The Child, Youth and Family Services Act, requires the hearing of the care and custody hearing within 35 days of the children being brought to a place of safety. This care and custody motion was heard eight months after the children were taken to a place of safety due to three separate adjournments for various reasons set out herein. How can a delay of eight months to conduct a care and custody be in their best interests? These delays are simply unacceptable to these children.

Background

[7] The father and mother have two biological children being M. and C. The father has four children from a previous relationship with an ex-partner. These children are not the subject of this protection application.

[8] Between 2005 and 2013, there were ten openings relating to the family. Child protection proceedings were commenced in March 2015 after the parents were charged criminally and the step children as well as M. and C. were removed from their care. Two of these children were made Crown wards on November 16, 2015.

[9] On July 21, 2017, Justice Roger, after 26 day trial, found that M. and C. were children in need of protection based on a risk of physical harm. He found that the children could be adequately protected by a 12 month supervision order to the mother based on his findings that the risk of physical harm was more related to the father’s action and the mother’s inaction. The court found that separating the mother from the father would reduce the risk of harm posed by the mother to the children to a level that could be adequately managed with appropriate conditions.

[10] In his reasons for judgment, Justice Roger, made various findings of fact including the following:

1. There was no finding of physical harm to M. or C.
2. The parents looked after the needs of M. and C.
3. The mother regularly attended pre-natal appointments with her obstetrician and after the birth of the children regularly attended at the doctor’s office.
4. The parents kept a clean and tidy home. The children were observed to be well-kept and happy.
5. The mother took courses and regularly attended supervised access with the children which he found was generally appropriate.
6. The mother was on time for access, affectionate with the children, appropriate in her conduct and that her visits with the children went well.
7. The finding of her risk that the children will likely suffer physical harm relates to the father. The mother regularly attended school meetings relating to her step children, took seriously their education homework and was described by many witnesses as very caring of all of the children.
8. The father represented a much higher risk of harm to the children then does the mother.
9. The mother had shown a reasonable ability to follow conditions and to work cooperatively with the Society.

[11] In addition, Justice Roger ordered that the mother and children participate in a parenting capacity assessment by the Family Court Clinic of the Royal Ottawa Hospital to occur within the first five months of the supervision order to identify any parenting concerns and steps going forward.

[12] M. and C. were in Society care from March 6, 2015 until they were returned to the mother’s care on August 17, 2017.

[13] The Family Court Clinic delivered a report dated January 26, 2018 where the assessor, Dr. Wood, found that the assessment of the mother was a limited due to the invalidated psychological testing where she attempted to present herself in an angelic light. Further, he found that the assessment of the mother suggested a Cluster B Personality Disorder with dependency traits. The assessor noted that the treatment of the personality disorders are difficult as the individual typically denies or refuses to recognize their difficulties instead blaming their problem on others.

[14] The assessor was pessimistic in regard to the mother’s ability to provide appropriate for her children’s needs over the long term related to various concerns including that the mother planned on reuniting with the father once he was released from prison.

[15] Dr. Wood recommended a further supervision order with clauses requiring the mother to remain in active counselling to address interpersonal conflicts as well as emotional dysregulation. Further, he recommended that she engage in a Circle of Serenity group at the Children’s Hospital of Eastern Ontario as well as a more intensive form of Positive Parenting courses.

[16] Dr. Wood found that the mother was committed to caring for her children and that she complied with all requirements requested by the Society and the supervision order. He found her to be organized and able to meet the children’s immediate needs, including dental and medical appointments and attending school. Dr. Wood indicated that the mother should be given a final opportunity to demonstrate that she was willing to take ownership and responsibility for those issues including personality difficulties which impacted on her parenting ability. Dr. Wood warned that should the mother lapse back into old behavioural problems or if she allows the father unauthorized access to the children, he would see little option other than apprehending the children and seeking a crown wardship disposition with a view towards adoption.

[17] After the release of the assessment report, Child Protection Worker (“CPW”) Ms. Swim, met with the mother to address three concerns:

1. The mother had not had an opportunity to develop a strong relationship with C. as he was brought to a place of safety as an infant and returned to the mother when he was three years of age. The Society worried about a lack of strong attachment between the mother and C.
2. The mother had not had the opportunity to parent both C. and M. on a full-time basis and that she might struggle to manage the children’s behaviour.
3. That M. might act out when frustrated or upset and that she might harm others or her brother.

[18] In March 2018, after a lengthy criminal trial, the father was found guilty of ten offences against the older children. The father was sentenced to four years of incarceration. The mother was found guilty of unlawful confinement, assault and criminal negligence with respect to one of the older children. She received an 18 month conditional sentence followed by two years’ probation. None of the criminal convictions related to M. or C.

[19] In June 2018, CPW Swim met with the mother to follow through with the conditions of the supervision order and the recommendations of the assessment. The mother advised that she was on the waiting list for services at Crossroads and that she was starting Violence Against Women counselling in September 2018. The mother acknowledged that she was having a difficult time with C. but that should she was developing a strong bond with him.

[20] CPW Swim was initially concerned that the mother was more affectionate with M. and spoke in a harsh tone to C. but over the summer of 2018 it appeared to be a positive change in that the mother was more affectionate with C.

Status Review Application

[21] In July 2018, the Society commenced the Status Review Application. In an affidavit dated July 6, 2018, CPW Swim identified the following points to support the Society’s request for a further supervision order being:

a. The Society had seen progress with respect to the mother’s parenting of the children, she work cooperatively with the Society, the school and the daycare and she is receptive to suggestions/directions. b. The Society had concerns that the mother had not engaged in any real counselling for herself and the children. c. The Society remain concerned about the mother’s repeated intentions to reconcile with the father despite his criminal convictions and significant risk of harm. d. The Society was concerned that if the mother was sentenced to a period of incarceration the children would need to come into care as there are no alternate safety plans for them.

[22] However, at a settlement conference, the Society agreed to terminate its involvement in favour of a Voluntary Services Agreement as there were no ongoing concerns with the children in the mother’s care.

Voluntary Services Agreement

[23] On August 29, 2018, the mother attended court with a Mr. R. The worker had never met Mr. R. and was not aware he was in the mother’s life. The supervision order was terminated on August 29, 2018 and replaced with a Voluntary Services Agreement which had the following conditions:

1. Mother shall work cooperatively with the Society.
2. Mother shall allow announced and unannounced visits and private access to the children in the home and in the community.
3. Mother shall follow through with individual counselling at the Carlington Community Health Centre.
4. Mother shall follow through with individual counselling for M. at CHEO as recommended and referred by Dr. McConville.
5. Mother shall participate in Crossroads in home support program and follow through with recommendations made.
6. Mother shall sign consents allowing the Society and other service providers to facilitate the sharing of information, upon consultation with counsel if desired.

[24] On August 30, 2018, CPW Swim ascertained that Mr. R. was subject to an ongoing child protection investigation. Consequently, CPW Swim advised the mother that pending the conclusion of the investigation, Mr. R. would not be permitted in the home or be around the children. That same day, the mother advised CPW Swim that she had told Mr. R. that he could not be in the home or around the children until the investigation was completed and the worker met him.

Decision to remove the children

[25] On September 21, 2018, the mother overdosed on cocaine in her home. Mr. R. called 911. Police were dispatched at 23:21 hours and paramedics arrived. Upon arrival, the police observed that the children were present and upset.

[26] The mother was transported to the hospital and Mr. R. was left to care for the children. That night the Society was contacted by the Ottawa Police Services who advised as to what happened and that Mr. R. would take care of the children as the mother was being transported to the hospital. The mother was discharged the next day.

[27] The next day, on September 22, 2018, CPW McAllister was advised that the mother had overdosed the previous night and that she was to attend at the home, unannounced, to check on the children and determine if there are any parenting concerns. Upon entry into the home, the worker observed that the home was clean and that there was ample food in the home. The mother advised the worker the following:

a. The children stayed home that day due to illness and spent the day with the mother and Mr. R. The plan was for the children to sleep over at a neighbour’s home. b. The mother had $20 worth of cocaine delivered to her home. c. The mother admitted taking the cocaine and feeling sick. She then passed out, remembers paramedics attending to her but does not have much of a recollection until waking up in the hospital. d. The mother was tearful and remorseful. She discussed her extreme level of guilt and was sobbing during the conversations. She admitted using the cocaine due to stress.

[28] The worker spoke to the youngest child C. but he was shy and did not engage. The worker noticed that the child was clean, well-rested and happy and that his interactions with the mother were positive.

[29] The worker then spoke to the eight year old daughter M. who confirmed that she did not go to school the day before, that she stayed home and played outside with friends. She said that her mother was sick and that an ambulance came and took her away. Later Mr. R. had fallen asleep and they went to a neighbour’s home to sleep. The child indicated she felt safe in the home.

[30] The mother told CPW McAllister that she would be willing to do whatever it was to keep the children in her care. She introduced a neighbour who agreed that he would do check-ins for sobriety three times on September 22 and four times every day after until a worker calls her for a longer term plan.

[31] The mother then attended to the home of another neighbour who also agreed to check-in three times on September 22 and four times every day after that date until a worker contacted her for a longer term plan.

[32] In addition, the mother identified two friends who could do check-ins. The worker wanted to speak to these friends. Further, the mother agreed to do drug screens. The mother denied that there were any drugs in the home and after the worker searched the home, she confirmed that there were no drugs or drug paraphernalia in the home.

[33] CPW McAllister was satisfied that the children were not in immediate risk of harm and that there was a safety plan in place. She was comfortable that this temporary safety plan was adequate to address concerns in the short term until the assigned CPW Swim could meet with the mother and work on a long-term plan.

[34] After leaving the home, CPW McAllister connected with one of the two friends proposed by the mother who confirmed that she would do three check-ins on September 22 and four every day thereafter until the Society contacted her.

[35] On September 22, 2018, the mother indicated that she ended her relationship with Mr. R.

Children take into place of safety September 25, 2018

[36] On September 24, 2018, CPW Swim, met with the mother at her home where the mother made the following statements:

a. She did the cocaine because she was feeling stressed, depressed and was hurting over the decision to go for sole custody. b. She had a lot of anger and hurt regards to the father’s incarceration and the negative impact on C. c. She remembered going upstairs and waking up on the ground with paramedics around her. d. She did not remember anything else such as what time she took the drugs or where she took them. e. She remembered she picked the drugs up from a friend of Mr. R. at a cost of $20. f. She had a safety plan to have regular check-in by neighbours and friends. g. This is the only time that she had used cocaine. h. She agreed to random drug screens.

[37] The next day on September 25, 2018, CPW Swim spoke on the phone to the mother who told her that she was on a cancellation list for an appointment with her family doctor. During the conversation, the mother advised that the children were with a neighbour when she purchased the cocaine. CPW Swim told the mother that she would support them staying in her care however if there were further concerns, the Society may consider bringing the children into care. At this time, the worker was satisfied with the safety plan.

[38] On September 25, 2018, CPW Swim met with the eight year old daughter, M. at school. According to the worker’s affidavit, she met the child at school in private. Paragraph 44 of her affidavit states the following:

44. Later that date, I met privately with M. at school. I asked M. what they did on the night when they lost power (the night Ms. F. overdosed). She stated they got bored and they all went for a drive when it was dark, they drove all the way down to Merivale Road in the dark. She said S. (Mr. R.) was acting silly as he was wearing her glitter mask; he was driving using no hands,; he used his knees to steer and he was dancing. M. mimicked of the way he was driving using her knees and waving her hands around. M. further stated she got to sit on mom’s lap while they drove around and mom was dancing and yelling things out the window at people who were looking at her funny. I asked M. if they stopped anywhere during the drive. She said the stopped at S.’s friend’s house. His friend came outside with no shirt on and S. was talking to him and then her mom got out of the car and had a smoke while talking to him, then they got back in the car. M. said they drove home and her mom said her heart hurt and she passed out. M. said when she passed out, they all tried slapping her face and S. kept saying “Babe wake up”. M. said she did not know why he was calling her “Babe”. Then the ambulance came and they had to stick her with needles and put a tube down her throat and squeeze a bag, her eyes opened a little bit and she asked for M. M. said she was scared because her mom stopped breathing for three minutes.

45. M. advised me that the ambulance took her mom and they stayed with S. However, while they were watching a movie, S. passed out and she couldn’t wake him up, so they went and got a friend “Ty” who couldn’t wake him up. She stated that “Ty” put them to bed. M. then stated she couldn’t sleep so she took C. and walked to a friends Karim’s house and had a sleep over there with his cousins. I asked M. if this all happened on the night her mom passed out and she said yes.

[39] In paragraph 46 of CPW Swim’s affidavit, she indicates that she spoke to C. who told her that his mom passed out on the weekend and they could not wake her and that S. also passed out. Further, C. could not provide a clear examination both events before and after the mother and Mr. R. passed out.

[40] On September 25, 2018, CPW Swim took the children to a place of safety based on the fact that the mother had lied to her about the children’s location when she bought the cocaine and the fact that the children revealed being left alone Mr. R. The worker no longer had any confidence in the safety plan between the mother and her network based on the mother not being forthright and that the worker felt the children were at risk of harm if the remained in her care.

[41] On September 25, 2018, CPW Swim’s supervisor, Ms. Corriveau called the mother and advised her that based on the disclosures made by the children, more information was provided about what happened on September 21, 2018. Ms. Corriveau indicated that the despite the mother advising CPW McAllister and CPW Swim that the children were not around when she purchased the drugs, the children disclosed the M. was present throughout the entire incident. In response, the mother said she did not remember the details of the incident that night and did not lie to workers.

[42] The mother’s affidavit states that the mother walked the children over to her neighbour’s residence around 5:00 p.m. to be babysat. It was the mother’s understanding that she was going out with Mr. R. to purchase marijuana around 5:30 p.m. On the way to purchase the marijuana, Mr. R. advised the mother that he was going to also purchase cocaine. They drove to an underground parking garage and obtained the marijuana and cocaine. On the way back home, the mother heard on the radio about a tornado warning and went home to retrieve her children. She returned home and put the children to bed. Later that evening she had chest pains and then blacked out.

[43] Ms. Lemay, the babysitter confirms that the children were to sleep overnight on September 21, 2018 but that the mother called her later that evening concerned about the power failure and tornado that had struck parts of Ottawa that evening. Further, this witness confirms that the mother picked up the children later that evening and left.

Litigation History

[44] On September 28, 2018, the Society commenced this protection application seeking an order that the children be placed in the extended Society care.

[45] On September 28, 2018, Justice Summers granted a temporary without prejudice order placing the children in Society care, pending disposition of the application. The mother was granted access three times per week.

[46] On November 22, 2018, a care and custody hearing was scheduled for December 3, 2018. On that date, in response to the mother’s motion to strike parts of the affidavit material filed by the Society, the parties agreed to strike certain paragraphs of the affidavit evidence. The mother also sought to strike paragraphs 44, 45 and 46 of the CPW affidavit sworn September 27, 2018 as it included hearsay evidence from the children. The care and custody motion was adjourned to February 8, 2019 as was the issue of striking paragraphs 44, 45 and 46 of the CPW’s affidavit.

[47] On December 13, 2018, the Office of the Children’s Lawyer was appointed.

[48] On February 8, 2019, the day of the care and custody hearing, the Society filed an updated affidavit that morning indicating that the mother was being investigated for breach of her conditional sentence issued in the criminal proceeding. Consequently, at the request of the mother, the care and custody hearing was adjourned to permit further investigation as to any criminal charges against the mother. The matter was adjourned and eventually the care and custody hearing was set for April 16, 2019.

[49] On February 19, 2019, the mother was arrested for breaching her conditional sentence by having contact with one of her step children. On March 15, 2019, the mother was found guilty of being in contact with one of her step children and was sentenced to 30 days incarceration in addition to the 23 days she had served presentence. The mother was released on April 1, 2019. She was incarcerated for a total of 53 days.

[50] The care and custody hearing was scheduled for April 16, 2019 but that morning counsel for the OCL fell ill and could not participate in the hearing. The OCL and the mother sought a short adjournment to ensure the participation of counsel for the OCL while the Society opposed a third adjournment of the hearing. I adjourned the matter eight days to April 24, 2019 to permit the participation of counsel for the OCL.

Legislative Framework

[51] Sections 94(2) and 94(3) of the CYFSA provide the legal test to be applied for a temporary order for care and custody:

94(2) CUSTODY DURING ADJOURNMENT-Where a hearing is adjourned, the court shall make a temporary order for care and custody providing that the child,

a. remain in or be returned to the care and custody of the person who had charge of the child immediately before intervention under this Part; b. remain in or be returned to the care and custody of the person referred to in clause (a), subject to the Society’s supervision and on such reasonable terms and conditions as the court considers appropriate; c. be placed in the care and custody of a person other than the person referred to in clause (a), with the consent of that other person, subject to the Society’s supervision and on such reasonable terms and conditions as the court considers appropriate; or d. remain or be placed in the care and custody of the Society, but not placed in, (i) a place of secure custody as defined in Part IV(Youth Justice), or (ii) a place of open detention as defined in that Part that has not been designated place of safety.

94(3) CRITERIA - The court shall not make an order under clause (2)(a)(b) 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 the child cannot be protected adequately by an order under clause 2(a) or(b)

[52] Under subsection 94(3) of the CYFSA, the burden of proof is on the Society to satisfy the court that there are reasonable grounds to believe that there is a risk that a child is likely to suffer harm and the child cannot be adequately protected by an order returning the child to parental care with or without an interim supervision order.

[53] The legal test applicable on a care and custody hearing is the test set out by Blishen J. in Children’s Aid Society of Ottawa-Carleton v. T., , at para. 10, is as follows:

The Children’s Aid Society must establish, on credible and trustworthy evidence, reasonable grounds to believe that there is a real possibility that, if the child is returned to his or her parents, it is more probable than not that he or she will suffer harm. Furthermore, the Society must establish that the child cannot be adequately protected by terms and conditions of an interim supervision order to the parents.

[54] In Children’s Aid Society of Toronto v. L.P., 2010 ONCJ 320, the Court held:

A court must make an order that is the least disruptive placement consistent with the adequate protection of the child in accordance with section 1(2) of the CFSA. The degree of intrusiveness of the Society intervention and the temporary protection ordered by the court should be proportional to the degree of risk.

[55] In Catholic Children’s Aid Society of Toronto v. J.O., 2012 ONCJ 269, 20 R.F.L. (7th) 471, the degree of intrusiveness of the Society’s intervention in the temporary protection order by the Court should be proportional to the degree of risk.

Analysis

[56] At the date of this motion, the children are 8 ½ and 4 years of age. They have been in the Society’s care since September 25, 2018.

[57] The Society has the burden of proof to establish, on credible and trustworthy evidence, that there are reasonable grounds to believe that it is a real possibility, that if the children are returned to the mother, it is more probable than not that they will suffer harm. Further, the Society must establish that the children cannot be adequately protected by terms and conditions of a temporary supervision order to the mother.

[58] The mother’s position is that the children should be returned to her under a supervision order.

[59] The Society submits that the children should remain in care for the following reasons:

a. The mother lacks insight into child welfare concerns and her role in the concerns. b. The mother has exposed the children to alcohol abuse and other inappropriate adult activities. c. The children have been traumatized by seeing their mother overdosed. d. The mother has not been honest resulting in an inability to provide a safety plan. e. The mother lacks a support network to assist with the stressors of parenting alone. f. The mother has failed to meaningfully engage in needed counselling. g. The mother put children at risk from unhealthy relationships\unstable partners. h. The children have experienced trauma and need a supportive and stable home environment with attentive, selfless caregivers. i. The mother breached her conditional sentence by communicating with her stepson. j. The mother exposed the children to the father in contravention of the last supervision order.

Preliminary Issue: Ruling on Admissibility of M. and C.’s Statement

[60] The Society seeks to rely on a statement made by M. to CPW Swim on September 25, 2018 set out in paragraphs 44, 45 and 46 of CPW Swim’s affidavit dated September 27, 2018 in support of its decision to remove the children.

[61] The mother opposes the admission of the statements contained in paragraphs 44, 45 and 46 of the child protection’s workers affidavit as they constitute children’s hearsay that are not saved by one of the recognized exceptions to the hearsay rule.

[62] Section 94(10) of the CYFSA provides the court with discretion to admit and act on evidence that the court considers credible and trustworthy in the circumstances.

[63] In R. v. Bradshaw, 2017 SCC 35, the court directs judges that in determining threshold reliability for an out-of-court statement made by a child presented for the truth of its contents, the court should look at whether there is sufficient procedural and substantive reliability for the court to determine its admission without the need for cross-examination of the person making the statement.

M.’s Statement

[64] The child’s statement is set out in paragraph 38 of the endorsement. Both parties concede that the statement meets the test of necessity. The parties disagree as to whether the initial assessment of reliability has been met.

[65] The Society submits that the statement made by the child meets the threshold of reliability for the following reasons:

a. The child knew the worker; b. The child was interviewed at school; c. The questions put to the child were open ended with no suggestion as to the answer; d. The child was met privately; e. The child had no motive to lie; f. there are inherent indicia of truthfulness; and g. the statement has a ‘ring of truth ’about it.

[66] In CAS (Ottawa) v. M.M., 2018 ONSC 786, on a motion for summary judgment, Justice Summers excluded child statements made to workers for failing to meet threshold reliability. Based on the record provided, the court could not assess the circumstances surrounding the child’s statements including her appearance, her demeanor, all her disclosures and whether they were spontaneous or prompted by the nature and manner of the questions put to her.

[67] In the Children’s Aid Society of Ottawa v. C. L. and M.M., 2018 ONSC 1425, Justice Mackinnon in a mid-trial ruling regarding the admissibility of a variety of statements made by a child, made the following comments:

[4] This ruling addresses threshold reliability. The inquiry focuses upon whether the evidence is sufficiently reliable to overcome the hearsay dangers associated with it. The Supreme Court of Canada recently summarized the hearsay dangers and the principled exception to the hearsay rule in R. v. Bradshaw, 2017 SCC 35, [2017] S.C.J. No. 35 at paras 20 and 26:

20 Hearsay is an out-of-court statement tendered for the truth of its contents. Because hearsay is declared outside of court, it is often difficult for the trier of fact to assess whether it is trustworthy. Generally, hearsay is not taken under oath, the trier of fact cannot observe the declarant's demeanor as she makes the statement, and hearsay is not tested through cross-examination (R. v. B. (K.G.), , [1993] 1 S.C.R. 740, at p. 764). Allowing a trier of fact to consider hearsay can therefore compromise trial fairness and the trial's truth-seeking process. The hearsay statement may be inaccurately recorded, and the trier of fact cannot easily investigate the declarant's perception, memory, narration, or sincerity (Khelawon, at para. 2). As Fish J. explains in R. v. Baldree, 2013 SCC 35, [2013] 2 S.C.R. 520:

• First, the declarant may have misperceived the facts to which the hearsay statement relates; second, even if correctly perceived, the relevant facts may have been wrongly remembered; third, the declarant may have narrated the relevant facts in an unintentionally misleading manner; and finally, the declarant may have knowingly made a false assertion. The opportunity to fully probe these potential sources of error arises only if the declarant is present in court and subject to cross-examination.

26 To determine whether a hearsay statement is admissible, the trial judge assesses the statement's threshold reliability. Threshold reliability is established when the hearsay "is sufficiently reliable to overcome the dangers arising from the difficulty of testing it" (Khelawon, at para. 49). These dangers arise notably due to the absence of contemporaneous cross-examination of the hearsay declarant before the trier of fact (Khelawon, at paras. 35 and 48). In assessing threshold reliability, the trial judge must identify the specific hearsay dangers presented by the statement and consider any means of overcoming them (Khelawon, at paras. 4 and 49; R. v. Hawkins, , [1996] 3 S.C.R. 1043, at para. 75). The dangers relate to the difficulties of assessing the declarant's perception, memory, narration, or sincerity and should be defined with precision to permit a realistic evaluation of whether they have been overcome.

[5] The determination of threshold admissibility of the out of court statements of S. turns on substantive reliability. In Bradshaw, the Court addressed substantive reliability as follows:

30 A hearsay statement is also admissible if substantive reliability is established, that is, if the statement is inherently trustworthy (Youvarajah, at para. 30; R. v. Smith, , [1992] 2 S.C.R. 915, at p. 929). To determine whether the statement is inherently trustworthy, the trial judge can consider the circumstances in which it was made and evidence (if any) that corroborates or conflicts with the statement (Khelawon, at paras. 4, 62 and 94-100; R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298, at para. 55).

[6] In R. v. Khan, , 1990 CarswellOnt 108 the Supreme Court articulated a non-exhaustive list of factors to consider in relation to out of court statements made by a child. At para 32, the Court said:

32 The next question should be whether the evidence is reliable. Many considerations, such as timing, demeanour, the personality of the child, and the absence of any reason to expect fabrication in the statement, may be relevant on the issue of reliability. I would not wish to draw up a strict list of considerations for reliability or to suggest that certain categories of evidence (for example the evidence of young children on sexual encounters) should be always regarded as reliable. The matters relevant to reliability will vary with the child and with the circumstances, and are best left to the trial judge.

[7] In child protection cases some of the factors courts have considered in assessing threshold reliability include:

• whether the statement was spontaneous;
• the timing of the statement in relation to the event
• the method and timing of record taking, if any;
• absence of suggestion or manipulation;
• whether the statement is in response to a leading question;
• the demeanour of the witness who received the statement;
• whether that witness has a vested interest in the outcome of the case;
• whether the recipient was under a business duty to record the statement accurately, objectively and in a timely way;
• whether the recipient is in court, available for cross examination, i.e. first hand hearsay only; and
• the child’s age, cognitive abilities, motive to fabricate, the contents and context of the statement.

Ruling on Admissibility of M.’s Statement

[68] The worker met the child on September 25, 2018. On September 27, 2018, the worker prepared her affidavit in support of the place of safety hearing. The Society argues that the child’s statement contains very specific recollections such as driving down Merivale Road in the dark and meeting a person without a shirt on.

[69] At a temporary care and custody hearing, the court may consider evidence that is trustworthy and credible. The impetus for the Society’s decision to remove the children was their view that the mother had lied about the children being present for the purchase of the cocaine and leaving the children in the care of Mr. R.

[70] The worker’s affidavit is not a verbatim report of what the child was asked and her answers but rather is a general summary of her meeting with the child. The worker’s affidavit does not provide any details such as at what time of day she met the child, what was the child’s demeanour at the beginning of the meeting, how she started her interview with the child, what were her questions to the child, what were the child’s answers to these questions and when she took her notes and transcribed them into a record. The worker’s affidavit does not attach a copy of her record of the interaction with the child on September 25, 2018. Despite filing further affidavits in this proceeding, the worker never attached a copy of her record. In assessing threshold reliability, all of these factors are important to provide a complete picture of what was said by the worker and the child on September 25, 2018.

[71] However, in this case, the affidavit of the worker does not provide sufficient detail to allow me to assess the circumstances in which the statement was made and to assess if the information set out in the worker’s affidavit is a complete and accurate record of the child’s statement. As such, I do not find that this statement meets threshold reliability and will not be admitted.

[72] Finally, even if I found the child’s statement to be reliable, the statement by itself does not prove the mother purchased cocaine with the children present as alleged by the Society. The mother readily admitted to CPW McAllister on September 22, 2019 that she purchased and used cocaine for which she was remorseful. The Society agreed that there was little risk of the mother using cocaine in the future.

Ruling on C. Statement

[73] Similar problems surround the worker’s affidavit regarding the statement from the youngest child. There is no indication as to where and when the worker met with the child. There is no evidence given as to the child’s demeanour, the questions asked, the answers provided, and generally no context surrounding the child’s statement.

[74] The mother has already admitted that she passed out and that she had to be revived by paramedics. The mother was surprised to find out that Mr. R. had also passed out.

[75] In the circumstances, this statement does not meet the test of threshold reliability and is not admissible. Even if it was admissible, it is a statement from a four-year-old child on factors that are already admitted by the mother.

Does the mother lack insight?

[76] The mother’s decision to use cocaine was an isolated incident brought on by her then boyfriend. I find that the night the mother decided to use cocaine, she did not intend to be in a child caring role. For that reason, she made arrangements for the children to be babysat by a neighbor. However, things changed and once she overdosed, the children were left in the care of Mr. R.

[77] The Society had told the mother that Mr. R. was not to reside in her residence. Despite that warning, the mother took Mr. R. back to her home after she picked up the children in breach of the warning. Secondly, the next day Mr. R. was sleeping there on September 22, 2018 when CPW McAllister attended. Thirdly, there is evidence that Mr. R.'s clothing was in the mother's home. The mother's decision to ignore the warning of the Society shows a lack of insight.

[78] I agree with the Society that the mother externalizes a lot of blame towards the father and Mr. R. The mother does not seem to understand that she is responsible for her actions. I find that the mother misrepresented to Dr. Wood what had occurred in the family home that gave rise to the criminal trial. The mother then misrepresented to the foster mother that she was found not guilty of any criminal charges.

[79] Despite pleading not guilty, Justice Parfett found that the mother had met one of the step children because he was able to describe the inside of her home and identify her new boyfriend, Mr R. Further, the mother responded to a Facebook message from the step child. Both of these actions were a breach of the conditional sentence and both were denied by the mother.

[80] I find that the mother has lacked insight by allowing Mr. R. to reside in her residence. However, Mr. R. is no longer in her life. I do not find that this lock of insight is sufficient to support removing the children from her care.

Has the mother exposed the children to alcohol abuse and other inappropriate adult activities?

[81] The Society relies on various statements made by the children to either the foster mother or CPW Swim. I have reviewed the various statements and many of the statements are with respect to Mr. R. actions and comments. In reading the statements, there is no indication that at any time the mother was intoxicated. I agree that it is concerning when the youngest child C. described a condom by putting his hand between his legs and moving it up and down but his statement is without context.

[82] Overall, I cannot conclude that the mother has exposed the children to alcohol abuse or other inappropriate adult activities.

Were the children traumatized by seeing their mother overdosed?

[83] There is no doubt that the children observing the mother being revived twice on September 21, 2018 then removed from their home by paramedics and taken by ambulance to the hospital is an emotionally difficult experience for anyone let alone a four year old and an eight year old child.

[84] Upon a review of the police record of the incident and statements made by the children to various individuals, it is clear this was a very difficult experience for the children. However, the Society concedes that the mother does not have a history of using cocaine, that they are not concerned about her ability to use cocaine and that they have not accepted her proposal to submit to random drug testing.

[85] I find that the mother was remorseful that her children were exposed to that event. However, the mother’s decision to use cocaine was based on her not being any child rearing role. However, things changed when she went home, picked up the children and put them to bed. I accept that the mother did not intend to overdose on cocaine but she is responsible for her actions especially when the children are in her care.

Has the mother’s apparent lack of honesty resulted in an inability to safety plan?

[86] The Society emphasizes the mother’s lies as the foundation for bringing the children to place of safety on September 25, 2018. I cannot find that the mother lied because the only admissible evidence is the monthly evidence of the mother based on my ruling on the child statement being inadmissible.

[87] Originally, the mother told CPW McAllister that the cocaine was delivered to her at a cost of $20. Later, the mother told CPW Swim that she purchased marijuana and cocaine at a parking lot. This contradiction raises the issue as to the mother’s credibility. The mother reconciles these statements because she had difficulty remembering what transpired on the night she used cocaine, had to be revived on two occasions by paramedics and taken to the hospital by ambulance.

[88] The mother stated in her affidavit dated January 29, 2019 that her plan was to raise the children without the father or any other man. In that same affidavit, the mother indicated that Mr. H. is a community support of hers. However, in the transcript of the hearing for breach of the conditional sentence, the mother testified that she had been in a relationship with Mr. H. since October 2018. Further, in the mother’s affidavit dated April 10, 2019, she indicates that says she has been in a healthy and stable relationship with Mr. H. since October 2018. The mother did not describe in her affidavit dated January 29, 2019 that she was in a relationship with Mr. H. This raises issues as to her credibility.

[89] However, there is insufficient evidence for me to conclude that she lied to the Society about Mr. H.

[90] I am also concerned that despite three individuals coming forward on September 22, 2018 to be part of the mother’s safety plan, there is no evidence that the Society contacted these people before taking the children to a place of safety. It appears that once the Society concluded the mother lied, they decided the children were at risk and removed them. This was done in the face of the mother having successfully complied with a 12 month supervision order and by the Society withdrawing a Status Review Application in favour of a Voluntary Services Agreement.

Does the mother lack a support network to assist with the stressors of parenting alone?

[91] The mother admitted to CPW McAllister that she used cocaine due to stress about the father being in jail, her fears once he was released, the stresses of her children acting out and her lack of family support. The mother admitted to CPW Swim that she did cocaine because she was feeling stressed, depressed and hurting over the decision to go for sole custody.

[92] Dr. Wood identified the mother having limited coping skill and being overwhelmed at times while caring for two children on her own.

[93] Once the Voluntary Services Agreement was signed on August 29, 2018, the mother had a similar plan. The mother states that she has emotional support in the community from two friends and with Mr. H.

[94] The mother plans on the children continuing to participate in afterschool programs and activities. M. is registered at the Boys and Girl club and that the children will attend Wednesday night church mass.

[95] I find that the mother’s current plan coupled with her actively being engaged in counselling is a viable plan that addresses the risk to the children.

Has the mother failed to engage in needed counselling?

[96] After the decision of Justice Roger, the mother was supposed to start family therapy at Wabano but attended only one session and did not return. In October 2017, CPW Swim told the mother she needed to actively participate in violence against women counselling. In June 2018, the mother advised the Society that she would be starting the Violence Against Women counselling in September 2018.

[97] By July 2018, the mother had not engaged in any real counselling for herself or the children despite the recommendations set out in the Family Court Clinic assessment. For that reason, the Voluntary Services Agreement included conditions that the mother would pursue individual counselling, obtain counselling for M. at CHEO and participate in the Crossroads in home support. By the time the children were taken to a place of safety, no counselling had taken place.

[98] I find that between August 29, 2018 and September 25, 2018, the mother did not participate in the counselling programs. However, since that time, the mother has made inroads into pursuing the counselling set out herein.

[99] The mother indicates that she has registered for counselling with Elizabeth Fry. By letter dated November 19, 2018, a counsellor from the Elizabeth Fry Society of Ottawa confirmed that the mother was enrolled in an eight week Emotion Regulation Program for women commencing Spring 2019.

[100] On May 8, 2019, the mother will start grief and trauma counselling.

[101] The mother attended for counselling at the Carlington Community Health Centre but was not comfortable with the counsellor and requested a referral to Violence Against Women counselling through the Society. By letter dated November 21, 2018, a case manager at the Western Ottawa Community Resource Centre confirmed that she met with the mother on one occasion and booked another session in early December. The mother indicates that she was to have a further meeting on February 11, 2019. There is no further information provided as to whether the mother followed up with said counselling.

[102] The mother indicates she is now registered for individual counselling at Serenity Renewal, registered for an anger management class and loneliness class.

[103] The mother stated that M. was referred to counselling in August 2018. By letter dated November 14, 2018, Dr. McConville confirmed that he did not feel that M. required counselling at that time and that he had no record of making a referral for counselling in the past year. In response, the mother indicated that she thought the doctor had made the referral. The mother should have followed up with the doctor to confirm that the request had been made.

[104] The mother indicates she is met with the drug counsellor on two occasions he was given her a list of resources to access if illicit or non-prescribed substances became a problem for her.

[105] The mother indicates that she suffers from Post-Traumatic Stress Disorder diagnosed in 2015 but provided no medical report to substantiate that fact. The mother self-referred to Dr. Ward, a psychiatrist, to help her with her mental health and follow-up on her treatment plan. The initial appointment was April 24, 2019 but was rescheduled due to that being the date of the argument of this motion.

[106] She has commenced a grade 12 parenting class to obtain a certification stating that she has completed grade 12.

[107] The mother is currently on the waiting list for in-home support through Crossroads.

[108] The mother must register and participate in the programs that she is registered in and those suggested by the Society. The mother must obtain counselling for herself and her children as recommended by Dr. Wood as it is critical that the mother accepts to address her issues and long-term parenting of M. and C.

Does the mother put the children at risk from unhealthy relationships/unstable partners?

[109] The mother was in an unhealthy relationship with the father. Justice Roger recognized that dynamic and found that if the parents were not together, the risk to M. and C. was minimal. For that reason, Justice Roger ordered the children returned to the mother’s care subject to a supervision order with stringent conditions.

[110] In the Family Court Clinic assessment, Dr. Wood also reaches the same conclusion that the mother should be given one last opportunity to care for the children and he recommended that the children should remain in the care of the mother subject to a supervision order. During that process, the mother was not in a relationship.

[111] The mother was in a relationship with Mr. R. in the summer 2018 that ended after she was released from the hospital. The mother recognized that the relationship was unhealthy and terminated. There is no information as to what the child protection concerns were about Mr. R. It appears that the Society never met him and that they insisted that he not live with or be interacting with the children until the Society concluded an investigation. The mother’s relationship with Mr. R. was unhealthy as he encouraged her to use cocaine which led to her overdose on September 21, 2018. The mother showed good insight by terminating her relationship with Mr. R. in September 2018.

[112] The mother started a relationship with Mr. H. in October 2018 and he moved into live with her after January 29, 2019. The mother indicates that they are now living together and that he is part for her plan. While the mother feels that the relationship provides her with stability and has assisted her in quitting smoking cigarettes and marijuana, she appears to have move from one relationship to another in a very short period of time.

[113] While Mr. H. may eventually have a positive relationship with the children, until he is properly assessed by the Society, he should not have access to the children. The decision of the mother to bring Mr. H. to an unsupervised access a visit in January 2019 and introduce him to the children is troubling for the future. The mother must put her children’s best interest first.

[114] Mr. H. was employed until February 2019, is currently looking for employment and is in recovery himself. The mother states that Mr. H. is a support system for her and has been a positive influence on her life. The Society states that Mr. H. has a firearm’s conviction in 2010, an attempted theft conviction in 2015, he has admitted being shot and stabbed and that he was addicted to alcohol and cocaine but has been sober for 18 months.

[115] During this motion, counsel for the mother agreed that he would leave the home as a condition for the children returning to her care.

Do the children need a supportive and stable home environment with attentive, selfish caregivers?

[116] Justice Roger found that the medical professionals involved in caring for M. and C. confirmed that while they were in the mother’s care, she was a devoted, caring and attentive who always demonstrated the children’s needs first and foremost.

[117] However, when the children came into care, the children exhibited dysfunctional behavior according to the foster mother. Over time, their behaviour has improved. There may be many reasons why the children were acting out when they were brought into care. There is no evidence that’s children exhibited dysfunctional behaviour before being brought into care. I cannot on the evidence provided make a finding that the children were inappropriately cared for in the care of the mother.

Has the mother exposed the children to the father prior to his incarceration of the last supervision order?

[118] The Society relies upon a statement made by the youngest child C. to the foster mother on October 6, 2018 while driving in a car with the foster parents. At that time the child, in response to a question posed by the foster mother as to where he wanted to go to eat supper, spontaneously told the foster mother that he wanted to go to the Red Lobster restaurant where he had previously gone with his “other dad, my old fat dad, but I didn’t eat lobster. I watch them in the water.”

[119] At the time of the disclosure, the child was four years of age. I agree with the submissions of the OCL that the child could be talking about anyone. It may be the father, it may be an uncle or it may be Mr. R. The child does not identify the father by name. This is an isolated statement. There’s no evidence to identify the father as the “other dad” or “my old fat dad”.

[120] While the evidence must be trustworthy and credible, it must still meet the threshold of reliability. The evidence surrounding the statement made by the child on October 6, 2014 does not reach the threshold of reliability. The evidence filed by the foster mother is insufficient for me to consider all the circumstances regarding the child’s disclosure. For these reasons, I find that the statement is inadmissible.

[121] Even if statement met the threshold of reliability, I would affix no weight to the statement of a four-year-old child.

Children’s Views and Preferences

[122] Counsel for the OCL submits that the children wish to return to live with their mother, that they should return to their mother and that it is in their best interests. The OCL states that the children have been consistent since they were brought into care of their desire to return home to live with their mother.

[123] CPW Swim confirms that the children have repeatedly told her since they came into care, they want to go home to live with their mother.

[124] The views and preferences of children are an important factor to consider in any disposition in a child protection proceeding. That being said while the children’s views and preferences are to be considered, their best interests remain the primary consideration.

Disposition

[125] I find that the children can adequately be protected by a supervision order with strict conditions. I order that the children M. and C. are to be placed in the temporary care and control of the mother subject to supervision of the Society with the following conditions:

a) The mother shall not reside with Mr. R, the father of M. and C. and shall not have any contact or communication with the father and the mother shall immediately notify the Society of any contact or attempt at contact by the father. b) The mother shall not permit the father to have any contact or communication with M. and/or C. except for contact and communication that is approved of by the Society or pursuant to an order made by this court. c) The mother shall not have any contact or communication with any of her step children and shall immediately notify the Society of any contact or attempt at contact by any of these individuals. d) The mother shall not reside with Mr. H. or any other person until he/they is/are approved by the Society or court order. e) The mother shall not introduce any partners to the children, including Mr. H., without prior consultation and approval from the Society. f) The mother shall cooperate with the Society, which includes attending meetings and answering, or returning the Society worker’s electronic or other correspondence and telephone calls. g) The mother shall allow the Society to attend her home on both an announced and unannounced basis. h) The mother shall allow the Society private access to the children in the home, at school and in the community. i) The mother shall at all times abstain from the use of illegal substances, not allow illegal substances into her residence and ensure that visitors to her residence are not under the influence of alcohol or illegal substances. j) The mother shall consent to random drug screens as requested by the Society. k) The mother shall register, attend and actively participate in: a. counselling to address interpersonal conflicts and emotional dysregulation; b. counselling to address violence against women and abusive relationships; c. the Circle of Care attachment group at CHEO; and d. a Positive Parenting course. l) The mother shall accept and actively engage with in-home parenting supports from Crossroads services for children or the Parent Resource Centre. m) The mother shall seek an immediate referral to a psychiatrist in regards to her cluster B personality disorder with dependency traits, and her PTSD. She shall follow all recommendations made by her psychiatrist in regards to treatment, counselling and medication. n) The mother shall register both children for individual therapy and follow any recommendations made by the treating professional. o) The mother shall notify the Society forthwith of any change of residence, email address, phone numbers, or other contact information forthwith. p) The mother shall ensure the children’s basic needs are met including medical, educational, physical, emotional and developmental needs and follow any recommendations made by professionals in relation to her children. q) The mother shall, at all times, be the primary caregiver for the children and any alternative caregiver shall be approved in advance by the Society. r) The mother shall sign any consent forms as requested by the Society upon consultation with counsel.

Shelston J.

Date: May 3, 2019