WARNING
The court hearing this matter directs that the following notice should be attached to the file:
This is a case under Part III of the Child and Family Services Act and is subject to subsections 45(8) of the Act. This subsection and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply with subsection 45(8), read as follows:
45.— (8) 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.
85.— (3) A person who contravenes subsection 45(8) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
Court Information
Sault Ste. Marie Court File No.: 122/2005 Date: 2012-05-04
Ontario Court of Justice
In the Matter of the Child and Family Services Act, R.S.O. 1990, c. C.11
Parties
Between:
Children's Aid Society of Algoma Mr. Anthony Marrato, for the applicant society
— And —
E.S. Mr. Fred Baxter, for the mother, E.S.
B.A. Mr. E. McCooeye for the father, B.A.
Heard: May 2, 2012
Justice: John Kukurin
Decision
Introduction
[1] This is a decision on a motion (at Tab 2) brought by the Applicant society in this child protection case. Its claims in this motion are threefold:
(a) for an order for temporary care and custody of the child S. (age 8);
(b) for an order of maternal access with a number of conditions; and
(c) for an order of paternal access with a number of conditions.
[2] S. was apprehended from the care of her mother about three months ago. At the first court appearance five days later, an interim "without prejudice" order was made keeping S. in care of the society. She was placed in a society foster home and has been there continuously since then. The society's motion was adjourned. It has taken these three months for the parties to be served, for them to retain and instruct counsel, and to prepare for the hearing of this motion. The "without prejudice" order included provisions for maternal access as well as for paternal access.
[3] The mother, E., opposes the society's claims. She wants S. back in her care and custody pending the resolution of the society's child protection application. Should the child not be returned to her care, she wants the court to make an order for unsupervised access and does not want the temporal restrictions on her access to be imposed by the society. As for paternal access, she seems to concede that the father should have some access but it should be fully supervised. The mother and father have been separated for several years.
[4] The father, B., supports the claim of the society for temporary care and custody. He does not have any position to advance with respect to maternal access. He does, however, wish the court to make an order for paternal access that would initially be supervised, but be progressively expanded to unsupervised access to take place at the home of the father.
[5] The society opposes the access suggested by each of the parents. It wishes the court to make temporary parental access orders that provide for reasonable access to each of them, to be arranged with the society, at locations approved by the society, and to be supervised in the discretion of the society by a society approved person.
[6] This is a rather generic or formulaic provision for parental access that the society seeks. It is difficult to determine what kind of access this translates to in terms of the actual locations, times, frequencies and durations of access visits. Also it is impossible to pinpoint which visits will be supervised and which will not, or who will supervise and what kind of supervision will be used. The society argues that this is precisely the kind of order the court should make. It provides maximum flexibility that allows the society the freedom to structure access to take into account changes in circumstances from time to time.
Temporary Care and Custody
[7] The court is required to make a temporary order for the care and custody of a child each time that a hearing is adjourned. There are two types of orders that the court can make. It can make 'removal orders' which remove the child from the person who had charge of the child prior to the society's intervention. Or it can make 'non removal orders' which keep the child with, or return a child to the pre-intervention caregiver and custodian. These options are set out in s.51(2) of the Child and Family Services Act (CFSA).[1]
[8] The onus is on the society to meet both parts of a statutory two part test which is set out in s.51(3)[2] CFSA before a removal order can be made. If it does not, the court is restricted to making a non-removal order under clause (a) or (b) of s.51(2). In this case, the contest is between the mother and the society for temporary care and custody. She wishes an order under s.51(2)(b); the society wishes an order under s.51(2)(d).
[9] I am satisfied that the society has met its onus with respect to the first part of this test. This requires only that the court have reasonable grounds to believe that a risk exists that the child will likely suffer harm if she is returned to the care of the mother. The society must demonstrate this with evidence. The standard of proof is the balance of probabilities. This is not that difficult a threshold to meet.
[10] In this case, the mother has filed some responding evidence. However, it is not very persuasive. The society's evidence is much more compelling. The major protection concern has to do with the child's low weight in relation to her age. This is not something that has only recently materialized. This has been a medical issue for some time. The child has been seen by a paediatrician, and a recent medical report indicates that there is a concern about the nutrition of the child at her home. While the medical evidence is not conclusive as to the cause of the poor weight gain of the child, it does point to poor home nutrition as a possible cause.
[11] This evidence would be insufficient alone to meet the first part of the s.51(3) test. However, this evidence is supplemented by considerable other evidence of the society with respect to the child's food, her food intake and her medical condition. This includes:
The mother has budgeted her rather modest income very poorly. She is in debt. Her creditors take a big bite out of her monthly revenue. She is in a position that she cannot afford to purchase an adequate amount of good quality food for her household. The mother has had to request food assistance from the society, from Algoma Family Services and other local helping agencies.
Despite this assistance, the child very often is sent to school with only a piece of toast, no lunch, at times complaining of hunger, and occasionally recounting stories about not having had breakfast that morning or dinner the prior evening.
The mother has no menu planning in her household. She seems to be lackadaisical about meals and meal preparation. In fact, from the evidence, I would make an inference that the mother is lazy with respect to meals and mealtimes.
The mother's attitude with respect to the child's nutrition has continued relatively unchanged despite recommendations, exhortations, cautions and warnings from the society over many months, and with full awareness of the child's weight problem.
[12] According to the present evidence, the child was at the 5th percentile for weight in her age range in October 2011, and that was a drop from the 10th percentile in March of the same year. A recent bone scan shows that the child has a two year delay in her bone structure, a finding that is indicative of poor nutrition. This evidence has to be juxtaposed to more recent evidence that, since the child has been apprehended and in the three months that she has lived in her foster home, she has gained five pounds.
[13] Apart from the child's weight gain problems, there are other sources of protection concerns should the child be in the care of her mother. Among the more serious are:
A chronic lack of dental care or of home dental hygiene for the child. The mother did not ensure that the child saw a dentist. This was despite the fact that dental services for the child were covered under the mother's provincial ODSP (disability) income plan. This was also despite frequent reminders by the society of the importance of dental care for the child and reminders to make a dental appointment. After apprehension, a dozen cavities were found and a tooth extraction was necessary.
A persistent substandard level of cleanliness in the home combined with inadequate attention to clothing and grooming of the child. There were regular reports from the child's school of the child wearing dirty clothes, often several days in a row. She did not brush her teeth regularly, if at all. She often did not wash.
The mother's irresponsibility with respect to how she spent her income is perhaps not a direct protection concern but contributes to several others. Inadequate food supplies was a common result. Inability to pay for transportation necessary to get the child to the dentist, for example, is another. The mother's debt situation was very pervasive and she clearly did not have the ability to extricate herself from her financial predicament. Her spending priorities were extremely unreasonable.
The mother was also remiss in not spending enough time with the child. Moreover there were reports of the child being left alone unsupervised.
There is also at least one incident acknowledged by the mother in which she threw a book at the child which struck the child.
[14] In summary, more than enough reasonable grounds exist to believe in a risk of likely harm. The mother has not yet adequately addressed many of the problems that create the risk of likely harm. The fact that this child was apprehended a number of years ago and was ultimately returned suggests that the mother is capable of addressing and overcoming problems that prevent her from parenting adequately. However, it took 14 months before her child was returned the last time this happened. This time, the problems are considerably different.
[15] With respect to the second part of the test in s.51(3) CFSA, I am satisfied that the society has met this as well. The mother has had a number of months of suggestions, recommendations, reminders, admonishments and outright demands from the society and other service providers to attend to certain tasks. For the most part, she has failed to respond adequately. She has been argumentative, has tendered excuses, often lame ones, or has ignored the need to address matters promptly and effectively. I do not expect that a court order will change either the attitude of the mother or the pattern she has developed of dealing with problems. I do not foresee that a supervision order with even carefully crafted conditions will be sufficient to keep this child safe and adequately parented if in the care of her mother at this point.
Access to Mother
[16] The mother has no claim for interim access[3]. However, the society does. The child was residing with her mother when apprehended and except for a fourteen month period in 2005–2006, has always been in the mother's care. The society, as the maternal access motion applicant has the onus of satisfying the court that maternal access is in the child's best interests. It also has the onus of satisfying the court that the order that it is seeking in this motion is in the best interests of the child.
[17] In the absence of an interim maternal access claim by the mother, she has no onus to meet. She does want a maternal access order to be made. She wants an order with terms that are different than the terms that the society wants. She can and has opposed the claim made by the society for the kind of access order it is seeking. In fact, she has done so successfully, not so much because of her evidence or her arguments, but more because the society has not sufficiently tied its evidence to the best interests circumstances that the court is statutorily obligated to consider when making an order for access.[4] Accordingly, the society's claim for the maternal access that it is seeking in this motion will be dismissed. The corollary of this is not that there will be an order for maternal access with terms that the mother wants. If she had had a claim for this kind of access, it too would be dismissed and for similar reasons. There is no substantial evidence that persuades me, on the basis of the child's best interests, that I should make an interim order for maternal access that either the mother or the society is seeking. There is no provision in s.51 CFSA that obligates a court to make an order for parental access when a hearing is adjourned. The mother and the society are free to bring further motions with better evidence, that will, hopefully, permit the court to take into account circumstances set out in s.37(3) CFSA.
[18] As for what contact the mother and child will have in the meantime, that is up to them to arrange. If they cannot, then one or the other of them might wish to return to the court.
Access to the Father
[19] The father also has made no claim for interim paternal access. He is opposing the paternal access order sought by the society. For the same reasons as in the case of maternal access, the society's claim fails. This does not mean that the father gets the kind of interim order that he would like the court to make. He is much less a candidate for an order for interim access than the mother. He has not spent any time with the child for over four years. Whatever order the court makes has to be made in the best interests of the child. I am not persuaded that it is in the child's best interests to make any kind of interim paternal access order based on the evidence filed to date. This means, I would guess, that the father's contact with this child will be something that can be arranged between the society as the child's present (albeit temporary) custodian and the father. If either is unsatisfied with the arrangements, or lack thereof[5], there is always the option of returning to the court with better evidence, with better arguments, and better expectations of obtaining an interim order that can be said to be in the best interests of the child.
[20] Accordingly, the society's claim for the interim paternal access order it is seeking in its motion at Tab 2 should also be dismissed.
Released: May 4, 2012
Signed: "Justice John Kukurin"
Footnotes
[1] S.51(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 be placed in,
(i) a place of secure custody as defined in Part IV (Youth Justice)
[2] S.51(3) Criteria.— The court shall not make an order under clause (2)(c) or (d) 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) or (b).
[3] The mother and father were served on Feb 13, 2012 with the society's motion. The motion was set for argument on May 2, 2012. This should have been plenty of time for both parents to have filed motions for their own interim access claims with evidence in support of those claims.
[4] Orders for access must necessarily be made in the best interests of the child. See S.58(1) below
S.58 Access order.— (1) The court may, in the child's best interests,
(a) when making an order under this Part; or
(b) upon an application under subsection (2),
make, vary or terminate an order respecting a person's access to the child or the child's access to a person, and may impose such terms and conditions on the order as the court considers appropriate.
[5] It appears, from the evidence, that the father has not had any access to the child for a number of years prior to this relatively recent apprehension. This has continued after the child's apprehension despite the fact that an interim without prejudice order was made within five days of apprehension that granted the father "reasonable" access. This has continued now for over three months. Perhaps the society has adopted the position, at least to date, that reasonable paternal access is no access.