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.

Sault Ste. Marie COURT FILE No. 207/2011

DATE: 2012-01-10 Citation: Children’s Aid Society of Algoma v. R.T., 2012 ONCJ 455

ONTARIO COURT OF JUSTICE

IN THE MATTER OF the Child and Family Services Act, R.S.O. 1990, c. C.11

BETWEEN:

Chlidren’s Aid Society of Algoma Jennifer Mealey, for CAS

— AND —

R.T. T. Frederick Baxter, for R.T. (mother)

J.B. (PERRAULT) No one, for J.B. (father)

GARDEN RIVER FIRST NATION Luanne Povey, Band Representative

HEARD: January 5, 2011

kukurin J.

[1] This is a decision on a motion at Tab 2 relating to temporary care and custody of an infant child, B., who was born three months ago.

[2] The applicant society apprehended B. at birth. When he was released from the hospital, he was placed by the society with his paternal grandmother, which the society deemed to be a place of safety. At the first date after the apprehension, a “without prejudice” order was made for temporary care and custody by the paternal grandmother, subject to a supervision order with a number of conditions. B. remains with the paternal grandmother in her home. He is apparently doing quite well despite some concerns on the grandmother’s part about possible excessive vomiting.

[3] Contemporaneous with the temporary care and custody order, there was made an order, also without prejudice, for interim parental access supervised in the discretion of the society. This took the form of three visits per week of three hours duration each. The visits are currently at the home of the mother and father which is apparently not far from the home of the paternal grandmother. The visits are supervised by K., the sister of the mother, who recently relocated back to this area with her spouse and three children. She has been approved by the society as an access supervisor. So also was the paternal grandmother. However, there appears to be some friction between the mother and paternal grandmother, possibly over additional time that the father gets to spend with B. at the paternal grandmother’s home.

[4] The mother and father want temporary care and custody of B.. The society wants the child to continue in the care of the paternal grandmother. The band representative has indicated no preference to either alternative.

[5] The Child and Family Services Act (CFSA) governs child protection proceedings such as this. In particular, section 51deals with temporary care and custody. It is of some importance to establish who had “charge” of B. immediately prior to the society’s apprehension. In the case of an apprehension in the hospital at birth, who had “charge” of the child could lead to some differences of opinion. However, this is not the case here. There appears to be a consensus that both the mother and the father had “charge” of B. immediately before he was apprehended.

[6] This preliminary determination is important because societies cannot arbitrarily and unilaterally remove children from the persons who have charge of them. Such apprehensions are initially authorized, as a general rule, pursuant to an apprehension warrant, but within five days, the apprehending society must place the case before a child protection court to justify the continued removal of the child.

[7] The onus is on the society to satisfy the court that it has met the two-part test set out in section 51(3) CFSA.[^1] This requires that the society must satisfy both parts of this two-part test. Otherwise, the child has to be returned to whoever had charge prior to its apprehension. Section 51(2)[^2] sets out two sets of orders that are available, depending on whether the test in section 51(3) has or has not been met.

[8] In this case, the society wants the court to make an order under section 51(2)(c) [a removal order]. The parents want the court to me an order under section 51(2)(b) [a non-removal order]. What order the court makes is contingent on whether the society satisfies the test in section 51(3).

[9] This case is somewhat atypical. The test in section 51(3) deals with risk of likely harm to a child if returned to the pre-intervention custodian and caregiver. In most cases, this is a specific person. The factual allegations in the evidence invariably relate to the risk of harm associated with this person.

[10] The oddity in newborn apprehensions is that there was no custodian or caregiver for the child. The child is a new arrival to terra firma. There is no history of care giving with respect to the child. The evidence as to risk of harm, in such cases, has to do with the history of the person who is entitled to have custody of the child. This history may be dated or recent, and may relate to a person’s care giving to another child, or children. It may also be in relation to the period of gestation of the child who is the subject of the proceeding. This history can, and often does, involve the lifestyle of the child’s custodian, or his or her cognitive level of functioning, or his or her ability to parent effectively, or such person’s challenges or handicaps, both physical and mental.

[11] In this case, the society’s evidence is quite comprehensive with respect to the child’s mother. Although the mother has provided considerable evidence in response to the allegations of the society about her, I am satisfied that reasonable grounds do exist to believe that there is a risk of likely harm if B. is placed in the care and custody of the mother. The threshold for this first part of the test in section 51(3) is not terrifically high. It does not require the society to satisfy the court that a risk of likely harm exists. It only requires the society to satisfy the court, on evidence that is credible and trustworthy, that reasonable grounds exist to believe so.

[12] The basis for the safety concerns that are related to the mother are:

(a) a fairly lengthy history of use and abuse of alcohol with no solid evidence that she has addressed this concern effectively to date;

(b) a lack of insight or appreciation of the impact of her drinking on her own life and on the life of any child in her care, including during pregnancy;

(c) an apparent inability, continuing to recent times, to keep out of trouble with the criminal justice system;

(d) the possibility of either a memory problem, or mental deficits in assimilating and/or retaining information;

(e) a lengthy history, including failed relationships with three prior partners, loss of custody of four older children, and a lifestyle that has remained relatively unchanged over many years.

[13] As for the second part of the two-part test, those things that raise protection concerns as they relate to the mother are not the kinds of things that this court could, with any confidence, control by way of a supervision order, even with multiple conditions, to the point that B. could be adequately protected.

[14] This is a determination made on the present evidence. To the mother’s credit, she seems to have taken positive steps to allay many aspects of her life that raise protection concerns. She stopped drinking for the second and third trimesters of her pregnancy with B. and has apparently continued to abstain from alcohol to date. She and the father have completed a parenting program. They have secured their own accommodations and most, if not all, of the amenities needed for the care of an infant. The mother has been actively involved with a number of community agencies, mostly from the native community, including an addictions counsellor, an early childhood development worker, a family preservation worker, an in-home support worker, and a mid-wife during her pregnancy and post-delivery.

[15] While these are very positive, the mother has not yet attended an alcohol treatment program which was recommended by the Community Alcohol Drug Assessment Program, as well as by the society. She still has outstanding criminal court charges which could result in incarceration. While she and the father are together, they did separate for a week and there are some indications of other tensions in their relationship. A significant issue that has arisen is the father’s paternity of B.. Paternity testing, which I understand is underway, may have a considerable impact on the dynamics of this case. Finally, the mother does not have a good rapport with the society and she does have some history of non-compliance with court imposed conditions.

[16] Time will tell if this mother has the commitment, on a long-term basis, to parent this child properly in a home that affords sufficient protection for him.

[17] By contrast, the society’s evidence with respect to protection concerns emanating from the father is minimal.

[18] Abuse of alcohol is not a significant concern with respect to the father. There is no history of problematic drinking on his part. There is one drinking/driving conviction. It was not for impaired driving but for driving with a blood alcohol level above the legal limit. However, his blood alcohol level was only slightly beyond the limit. The offence occurred in early August 2011 before B. was even born. It resulted in a minimum fine. This is the only criminal conviction of the father. My assessment is that this offence resulted mainly because of an error in judgment on his part.

[19] The society advances other arguments to persuade the court that the father is an inadequate person to parent the child. The most often mentioned is his lack of understanding of the adverse developmental effects of drinking alcohol during pregnancy on a child in utero. Alternatively, the society claims he does not articulate anything from which such understanding can be inferred, or it suggests that the mother is the more dominant of the two, and that he has no control over her.

[20] These argument is rather tenuous. From the society’s own evidence, it appears that the father did verbalize an appreciation of the dangers of drinking during pregnancy to an unborn baby. The band representative in this case apparently believed that he seemed to understand. The Anishinabe Family Preservation Worker spoke to both mother and father about this, and did so in the presence of the society worker. The father reported having covered the risks of Fetal Alcohol Syndrome in the Health Babies Health Children Program that he and the mother had taken. More importantly, both the mother and the father stopped drinking alcohol altogether for at least the last half of the pregnancy and following B.’s birth. Hair follicle testing by the society offers some confirmation of this. Even more confirmation comes from family members who, in this case, are close enough to know if either the mother or father were drinking. Their consensus is that they have not been.

[21] The court has to start with the premise that a biological parent is entitled to have care and custody of, and to parent his or her child. The fact that a person may be a first time parent does not lead to any inference that he or she cannot parent or protect the child adequately. Nor does the fact that a parent is a father rather than a mother lead to any inference of inability to parent adequately.

[22] The onus of the society applies equally to the father and to the mother. I do not have any reasonable grounds to believe that there is a risk of likely harm if B. is placed in the temporary care and custody of the father. Moreover, I am of the view that the child can be adequately protected by an order of this court with appropriate conditions.

[23] Accordingly, with respect to the father, the society has not met the two-part test in section 51(3). It is not sufficient for the society to have met the s.51(3) test with respect to only one of the persons who had “charge” of the child prior to its apprehension. Therefore, the child will have to be returned to the father’s care and custody. However, his care and custody will be subject to a supervision order and will be subject to a number of conditions. What those conditions will be will have to be decided, either by the court, or preferably on consent of the parties. If there is no such consent, I will ask for brief written submissions as to what conditions are appropriate to impose.

[24] By way of judicial suggestion, I do not expect a condition that mother will have to live elsewhere than with the father and the child. My expectation is that the father will have the responsibility for the care of the child and that he will be responsible to ensure that the mother’s interactions with the child are always appropriate. The father will be the custodial parent and he will make decisions with respect to the child. The mother will be an access parent, albeit one with 24/7 access to the child. There should be not one minute, however, which will involve the child being in her sole care.

[25] It is not only supervision conditions that must be crafted. Conditions of maternal access must be imposed and these should complement the conditions of the supervision order.

[26] The evidence of the mother indicates that she intends to attend a residential treatment program soon. She should go. It is important for many reasons that she does so, not the least of which is to demonstrate her commitment to addressing her problems with alcohol. It is also to alleviate the concerns that the society has with her use of alcohol. In fact, it may be prudent to set a successful completion of a residential alcohol treatment program as a pre-requisite to a return of the child to both parents. This is ultimately what they want.

[27] There is no rush to make an order. From the child’s point of view, his present needs are being met adequately. Access is regular and is continuing. I admit that evidence that raises the possibility that the father is not the biological father of the child creates some concerns of potential difficulties. I understand paternity test results may soon be available, hopefully before any temporary care and custody order is made in this case.

Released: January 10, 2012

Justice John Kukurin, Ontario Court of Justice

[^1]: S. 51(3) 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).

[^2]: S. 51(2) 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), or (ii) a place of open temporary detention as defined in that Part that has not been designated as a place of safety.