Court File and Parties

Newmarket Court File No.: FC-19-0000075-00 Date: 2020-06-16 Superior Court of Justice – Ontario – Family Court

Re: Children and Family Services for York Region, Applicant And: C.F., Respondent And: J.M., Respondent

Before: The Honourable Madam Justice H. McGee

Counsel: A. Harris, Counsel for the Applicant L. Korhani, Counsel for the Respondent C.F. D. Miller, Counsel for the Respondent J.M.

Heard: June 9, 2020 – by teleconference

Warning

The court hearing this matter directs that the following notice should 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.

(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.

Endorsement

Consent Order

[1] Order to issue varying the temporary Order of Justice Bennett dated December 10, 2019 for terms of placement and supervision of the child “J.” born in 2019 per draft Order filed June 9, 2020.

Contested Motion for Access

[2] By Notice of Motion dated May 29, 2020 Children and Family Services for York Region seeks a temporary Order that the respondent father, J.M. have access to the child J. twice weekly for a period of two hours, supervised at the discretion of the Society, that parties work cooperatively with the Society to ensure a schedule of access is adhered to, and that any missed visits be made up.

[3] By Notice of Motion dated June 3, 2020 the respondent mother, Ms. C.F. asks for an Order that the father’s access be deferred until the Society’s offices re-open, and then, that access be supervised by two CAS workers; and specifically, that his access not be supervised by any of his family members or friends.

[4] Mr. J.M. consents to the Society motion, but asks that the additional term that “any further access by Mr. J.M. be in the Society’s discretion” be inserted after the provision for two hours a week to avoid the need for a further variation should access proceed well.

Background

[5] In January of 2019 the respondent parents began a brief cohabitation that was marked by instability, violence and the birth of a child in September 2019. The relationship ended three weeks later when each was arrested during a police attendance. Mr. J.M. was charged for an incident that happened the week prior and Ms. C.F. was charged for the incident that occurred that night: October 17, 2019. Both charges were eventually withdrawn by the Crown.

[6] Ms. C.F. attaches to her June 3, 2020 affidavit filed in support of this motion pictures of extensive bruising on her arms at the time of the charges and acknowledges that she inflicted blows sufficient to cause bruising on Mr. J.M.’s back. She states that she bruised him in self defence. He states that he was holding her arms to prevent her from battering him on the back.

[7] A no contact Order was put in place following the arrests on October 17, 2019. In breach of that Order, Ms. C.F. permitted Mr. J.M. into her home on October 29, 2019. She states in her affidavit that she left him alone with their infant son for about 20 minutes and that shortly after checking in with him by phone, she received a hysterical phone call from him, that he had accidentally dropped J.

[8] When Ms. C.F. returned home, she did not see any cause for alarm. J. was sleeping and although she saw minor bruises, she states that she was assured by her mother and sister with whom she was residing, and a friend, that there was no need to be concerned.

[9] She goes on in her affidavit to relate that it was the next evening when she noticed unusual twitching of J.’s leg and arm, and that she took him to Sick Kids Hospital.

[10] At hospital, J. presented with seizures, and purplish marks on his mid-chest, right leg, right shoulder and face consistent with significant bruising. His injuries were severe and life threatening, requiring him to be intubated. He received three CT Scans, three MRIs and multiple skeletal assessments.

[11] An extensive 33-page report was received from the Hospital for Sick Children on May 28, 2020. It concludes that five-week-old J. suffered a significant force traumatic injury that can not be attributed to a short fall.

[12] The report went on to indicate that children who have suffered a head injury are at increased risk of future developmental delay, learning and school problems; but that it is not possible to determine J.’s exact prognosis at this time. However, J. was seen by the neurology clinic at 3.5 months of age and it was noted at that time that he was demonstrating signs of developmental delay. He will continue to be monitored.

[13] The police investigation into J.’s unexplained injuries continues. No charges have yet been laid.

[14] Since his discharge from hospital on November 15, 2019, J. has remained in his mother’s care, at his maternal grandparent’s residence, with the support of the extended maternal family. Initially, no access was provided to the father.

[15] On December 10, 2019, Children and Family Services for York Region brought this Protection Application. It was decided at the February 11, 2020 Case Conference that Ms. C.F. could have J. in her care, unsupervised, for up to three hours a day. Terms were made for Mr. J.M. to have supervised access at the Society’s facilities for up to two hours, twice a week.

[16] Mr. J.M. remains grateful for the Society’s intervention because he fears that he would otherwise have had no access. He describes in his materials how Ms. C.F. and her family cancelled multiple visits prior to their involvement.

[17] His view is supported by the Family Service Worker’s affidavit of May 29, 2020. She deposes that it was “very difficult to convince the maternal family that the Society would ensure J.’s safety during the access visit,” and relates listening carefully to Ms. C.F.’s stepfather P. S., “who was very worried about Mr. J.M.’s behaviour and felt that two people needed to be present during access.”

[18] It is Ms. C.F. and the maternal families’ disapproval to J. having any contact with Mr. J.M. that underscores the term for make-up access.

[19] Mr. S. was present on this motion, having received the call-in information from Ms. C.F. I ultimately permitted his presence while expressing a concern that his attendance was neither requested nor agreed in advance of the motion, necessitating time away from the issues at hand.

[20] In March 2020 the Society concluded that supervision of Ms. C.F.’s parenting was no longer required, and they allowed Ms. C.F. to live independently with J.

[21] The Family Service Worker relates that Mr. J.M. has had eight supervised visits at the Society office, each two hours in length: February 6, 12, 27, March 6, 11 and 17. Mr. J.M.’s sister, F.N., was present during the access visit on March 6, 2020 and it was noted that she was a positive support.

[22] All in-person access was suspended after March 17, 2020 due to COVID-19 because the Society’s facilities are closed until further notice. They have considered alternatives to access supervised by Society workers and have approved each of the father’s sisters as supervisors with the FIT worker monitoring through video for the first four visits.

[23] The maternal family remain opposed to any form of supervision short of on-site Society supervision by two Family Service Workers.

[24] Nonetheless, two successful visits, each supervised by a paternal aunt have since proceeded without incident. These visits are the only two times since the Society’s facilities were closed that J. has been with his father.

[25] The Society seeks an Order permitting access to continue in this manner, at their discretion. They do not recommend lifting supervision at this time. Overall, his access visits supervised by the Society have been positive, but they remain concerned with Mr. J.M.’s lack of parenting skills and how easily he can be distracted by grievances with the maternal family and the stress of court proceedings; even when his time with J. is limited. He has been redirected during supervised access to focus on J., and on one occasion, he walked out of a visit, although he was later able to calm down and return.

[26] Mr. J.M. assures the court that he will follow the direction and guidance of his sisters, that he is willing to cooperate with the FIT worker, with the Society and with any terms of a court Order.

[27] Ms. C.F. opposes the paternal aunts, Mr. J.M.’s family or friends acting as supervisors. She deposes in her affidavit that she is “surprised and shocked that after reading the SCAN report [that] the Society would permit the Respondent father access to J. supervised by his sisters.” She is certain that his sisters can not control his temper and that they can not physically protect her son. She wishes to limit the Society’s discretion in managing access by preventing them from using any supervisor who is not of the Society.

[28] She proposes this limitation knowing (Mr. J.M. says because) it would prevent any access by the father until the Society’s facility re-opens. A re-opening date is not yet known.

Material Change in Circumstances Made Out

[29] Society counsel provided me in advance with Catholic Children’s Aid Society of Toronto v. R.M., 2017 ONCJ 784, a case that explores the legal test to change temporary Orders. It is not contested that the COVID-19 closure of the CAS facility is a change in circumstance sufficient to vary the temporary Order of February 11, 2020.

[30] COVID-19 has had the unprecedented effect of cancelling in-person access at Society facilities across Ontario. In Children’s Aid Society of Toronto v. S.S., 2020 ONCJ 170 the court took judicial notice of the fact that during the pandemic, Societies cannot provide the level of supervision that it might otherwise have been able to provide, and that many staff are working remotely.

[31] Nonetheless, Societies are being ordered to facilitate access wherever possible and to find new ways of delivering services. In C.A.S. v. J.N., A.F. and M.S., 2020 CarswellOnt 6741 Justice Piccoli summarizes the caselaw to date and confirms that “since COVID-19, the court has found that there is no presumptive authority extended to the Society to suspend in-person access to parents without formulating some alternative measures. See: DCAS v. Quinn, 2020 ONSC 1761; and Children's Aid Society of Toronto v. T.F., 2020 ONCJ 169.”

The Nature of Access and Supervised Access

[32] Access is the right of a child. As stated by Justice Blishen in V.S.J. v. L.J.G., “there is a presumption that regular access by a non-custodial parent is in the best interests of children. The right of a child to visit with a non-custodial parent, to know and maintain or form an attachment to a non-custodial parent is a fundamental right and should only be forfeited in the most extreme and unusual circumstances.”

[33] A child’s right to access with a parent invites a further layer of complexity in a child protection proceeding. Court must engage in a careful balancing of the benefit of a parent’s care, the specific risk of harm to the child while in that parent’s care, and the measures in place for risk reduction.

[34] Supervised access is a critical tool in that engagement. Supervision provides a safer bridging period during which parental deficits can be assessed and whenever possible: repaired. Supervised access is clearly indicated when parenting judgement is impaired, there is a history of violence and other harmful behaviour directed toward the primary caregiver and/or evidence of abuse or neglect of the child.

[35] The paramount purpose of the Child, Youth and Family Services Act, 2017 must at all times be observed: to promote the best interests, protection and well-being of children.

[36] Additional purposes of the Act include the preservation of family and community ties, and the creation of a pathway from a child having no relationship with a parent to a child having as beneficial a relationship with his parent as possible. Each application must be determined on its own merits and it is worth emphasizing that supervised access must serve the best interests of the child and not necessarily the interests of either parent.

Analysis

[37] In Catholic Children’s Aid Society of Toronto v. R.M., 2017 ONCJ 784, Justice Sherr sets out the flexible approach to changing a temporary Order using a contextual analysis. The variation has to be proportionate to the change in circumstances so that any additional risk is mitigated by the Society’s plan.

[38] The preponderance of J.’s supervised access visits with his father at the Society offices have been successful. The two visits supervised outside the facility by an approved aunt, monitored by a FIT worker were successful.

[39] But for COVID-19, supervised visits would have continued over the past three months and may well have progressed. In these circumstances, it is clear to me that a suspension of access is not indicated and ought not occur by default.

[40] All Ontario child protection agencies are obliged to find alternative forms of service as a result of COVID-19 related closures. In this case, the York Region CAS has considered and tested the viability of approved, family member supervisors monitored by a FIT worker for the initial sessions.

[41] The entire process is being assessed and re-evaluated after each visit.

[42] As expressed in her affidavit, Ms. C.F.’s concern is that neither sister is physically strong enough to overpower Mr. J.M. should he decide to harm J. during one of the two-hour visits. With respect, this is a concern that bears equally on any Family Service Worker at any CAS facility; and the risk of such an occurrence in these circumstances is not supported by evidence of the 10 visits to date.

[43] Mr. J.M.’s counsel was rightly anxious to express to the court that there is no basis for such an extreme view of risk of Mr. J.M.’s parenting while under supervision. Mr. J.M. has no criminal record, drug or alcohol addictions. His bi-polar illness has not to date been shown to diminish his ability to parent. He has demonstrated caution while in an unsupervised caregiving role. Last October he called Ms. C.F. immediately after falling with J. He takes direction from the Society and from his sisters while under supervision. He has attended four parenting sessions with Jewish Child and Family Services and committed to further interventions.

[44] As I intimated at the conclusion of this telephone motion, fear for J.’s well-being is a reasonable reaction to the events of last October and should be shared by all those who care for him. He is a child who in his first year of life has suffered violence, born to parents with an unstable relationship and a history of domestic violence. The cause of the violence done to him has not yet been determined.

[45] I agree with the Society that their proposal for alternate access builds on the extended family’s strengths and maintains J.’s connections to his extended family during this period of investigation. I have also heard their ongoing concern that neither parent has been fully transparent with the Society. In these circumstances, I find that the Society’s positive obligation to ensure meaningful access between J. and his father is an integral part of their overall duty to promote J.’s best interests, protection and well-being.

[46] Ms. C.F. offers no complaint about either aunt’s commitment to J., or their willingness or ability to put his interests first. The access notes clearly show Mr. J.M.’s responsiveness to his sisters’ direction and his willingness and ability to be guided by them. I have no evidence that either sister would not meet the Society’s expectation that access would immediately cease should there be any harm to J.

[47] M.M., one of the approved paternal aunts, is particularly suited to the task of supervision as she has professional experience as a long-term personal care worker and has demonstrated compliance with COVID-19 protocols.

[48] In a final answer to Ms. C.F.’s concerns, this is not a proposal that any friend or family member will do, but rather the specific approval of two persons who have been observed by the Society while in a caregiving role to J., supported during their initial visits by a FIT worker and subject to ongoing re-evaluation.

[49] No course of supervision is without some risk. In these circumstances, does supervision by the paternal aunts, remotely monitored by a FIT worker sufficiently reduce the risk of harm to J. while in his father’s care twice weekly for a period of two hours?

[50] Having reviewed the materials before me on this motion, I find that it does; and I am further satisfied that the Society will continue to closely monitor J.’s well-being while in each parent’s care. For that reason, I am not prepared to annotate the Order sought in the manner suggested by Mr. J.M.

[51] Order to issue per paragraph 2 of the Society’s May 29, 2020 Notice of Motion. The relief sought by Ms. C.F. in her motion is dismissed. The next attendance before the court will be a conference to be spoken to on July 13, 2020. The time of the conference is tentatively set to 2:15 p.m. to accommodate Mr. Miller’s schedule.

Justice H. McGee DATE: June 16, 2020