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

File No.: 497/09 Date: 2012-09-21 Ontario Court of Justice

Between:

Windsor-Essex Children's Aid Society Applicant,

— AND —

J.M. and E.O. Respondents.

Before: The Honourable Mr. Justice Barry M. Tobin

Heard: September 19, 2012

Released: September 21, 2012

Counsel:

• Mark L. Hurley, for the applicant Society
• Michael D. Frank, for the respondent, J.M.
• Margaret A. Vincente, for the respondent E.O.

TOBIN J.:

RULING ON MOTION

1: The Motion

[1] The issue on this Motion brought by the Society pursuant to ss. 64(8) of the Child and Family Services Act is whether a three year old child should be returned to the care of his father in circumstances where the child presented with injuries to his face, elbow, back, buttocks and leg, while in his father's care.

2: Facts

[2] E.O. is the father of the child, E.C.J.O., born […], 2009.

[3] The child's mother is J.M.

[4] On October 6, 2010 the child was found in need of protection under subclause 37(2)(b)(i) of the Act and was made a ward of the Society for a period of five months.

[5] On March 24, 2011 the child was found to remain in need of protection and placed in the care of the father, subject to Society supervision for a period of twelve months.

[6] On May 11, 2012 the child again was found to remain in need of protection and was ordered to remain in the care of the father subject to Society supervision for a period of twelve months. The child was then found to remain in need of protection because he exhibited some behaviours that seemed to be challenging for the father to handle. Another reason for the finding was that the child had not been involved in socialization activities as had been expected.

[7] On June 19, 2012 the child was apprehended without a warrant by the Society because of injuries he sustained.

[8] Following the apprehension the Society commenced a Status Review Application which was issued June 22, 2012. In it the Society seeks a finding that the child remains in need of protection under subclauses 37(2)(b)(a)(i) and (ii). The disposition sought is an order for crown wardship without access.

[9] The injuries to the child included; (a) a bruise and red marks around the child's nose, (b) black eyes and a swollen upper lip, (c) the child having dried blood in his nose and having nose bleeds. As well it was observed that the child had welts and bruising on his lower back, buttocks, left lower leg and foot. The child also sustained what was described as a broken elbow. All of these injuries occurred during the month of June, 2012.

[10] The injuries were observed by Dr. Huma Kazmie of Windsor Regional Hospital when the child was taken for an examination.

3: Position of the Parties

[11] The position of the Society is that a material change in circumstances has occurred since the making of the order of May 11, 2012 by virtue of the injuries sustained by the child while in the care of the respondent father. It argues that the evidence supports a finding at this stage of the proceeding that the father has provided different explanations for the injuries at different times. This should lead to the conclusion that there is risk to the child in returning him to the care of the father and that it is in the child's best interest that he remain in care.

[12] The Society acknowledges that it has the onus of demonstrating that the best interest of the child requires a change in the status quo.

[13] The father denies that he has given different explanations at different times. Further, he argues that the police have investigated the circumstances of the injuries and that no charges have been laid against him. The medical evidence he argues is consistent with his explanation for the injuries.

[14] It is the father's evidence that when the child does not get his way he becomes angry and throws himself at objects. The bruises to his back occurred when the child was upset and hit himself on a milk crate - which was how he injured his face - and then he fell on a Tonka truck bulldozer - which caused the bruises to his lower back and buttocks.

4: Legal Considerations

[15] The Society having responsibility for the supervision of a child may apply to the Court at any time for a review of the child's status: see Child and Family Services Act clause 64(2)(a).

[16] When the Society removes a child from the care of the person with whom he/she was placed under an Order for Society supervision the Society is required to apply to the Court for a review of that child's status within five days after the removal: see Child and Family Services Act clause 64(2)(c).

[17] The Act addresses interim care and custody while a status review application is outstanding in ss.64(8) which is formulated as follows:

64(8) – If an application is made under this section, the child shall remain in the care and custody of the person or society having charge of the child until the application is disposed of, unless the court is satisfied that the child's best interests require a change in the child's care and custody.

[18] In Children's Aid Society of Algoma v. S.(S.) et al, 2010 ONCJ 332, the Court stated the following with respect to subsection 64(8) of the Act:

"Subsection 64(8) does not create a presumption in favour of whomever has care and custody of the child. It goes further than a presumption. The use of the words 'shall remain' implies that the status quo must remain in effect. The only exception is where the court is satisfied that the best interest of the child requires a change in that status quo. In my view, the use of the word 'required' in this provision is not accidental. 'Require' is a fairly strong word. It denotes considerably more than being merely desirable. It carries the connotation of necessity or obligation..."

[19] The analysis to be followed in a motion under ss. 64(8) of the Act was considered by Justice Murray in Children's Aid Society of Toronto v. S.(S.) and C.K.S., 2011 ONCJ 746 at Paragraphs 21 and 23 as follows:

"It must be kept in mind that on a s.64(8) motion, a court is being asked to vary an order that has previously been determined to be in a child's best interest. That order has been based on either findings made after trial, or on indisputable evidence presented at a summary judgment motion, or on facts upon which that all parties have agreed.

"… on such motions, the moving party must first establish that there has been a material change in circumstances related to the child's best interest. If there has been such a change, then it must be demonstrated that it is necessary, in protecting the child's best interest, to change the existing order before trial of the status review application."

5: Application To This Case

[20] Prior to the Order of May 11, 2012, which found the child remained in need of protection, the Society was satisfied that the father was capable of caring for the child, subject to supervision.

[21] The Society was aware that the father had been struggling with the child's escalating behaviours. The behaviours were that the child, when frustrated, hit himself on the head and would throw himself into objects. The father had reported this to Becky Rivest, a worker from Children's First who attended at his home in February, 2012. She also observed these behaviours.

[22] In June, 2012 the Society received a report from M.A.W., a person with whom the child was left by the father to be babysat. Ms. W. reported to the Society worker that the child was with her on June 8, 9 and 10, 2012. The father acknowledges the child was there on June 8 and 9 but denies the child was there on June 10, 2012. The father placed the child with Ms. W. contrary to the existing Supervision Order. Ms. W. had not been approved by the Society as a caregiver for the child.

[23] Ms. W. also reported to the Society worker that she observed bruises and marks on the child and she asked the father about them. She said his story kept changing: one time he said the child walked into a door and another time he said he was injured by sitting on a milk crate. The father denies these comments and that he changed his story.

[24] The father states that he has been consistent in his explanation that the injuries on the child's face were caused by the child throwing himself against the milk crate and that the injuries to the back happened when he fell on a toy truck.

[25] The injury to the elbow was said to have occurred as a result of a fall from playground equipment. There is no evidence of inconsistent explanations regarding this injury.

[26] I am not able to accede to the Society's request that I find the father has been unable to explain in a reasonable and consistent manner how the child sustained his injuries. The affidavit evidence is contradictory and untested. Issues of credibility based on contradictory evidence presented should be determined at the hearing and not at this interim care and custody motion. As was stated by McGee J. in Menchella v. Menchella, [2012] O.J. No. 1257 at para 36:

"A motions Justice should proceed cautiously when the evidence before the Court is contradictory. When findings of credibility are necessary to determine a matter of importance the matter must proceed to trial: Irello v. Irello, [2006] O.J. No. 3912, (Ont. C.A.)."

[27] However, this does not end the matter. The extent of the injuries to the child is significant and worrisome. They occurred since the supervision order of May 11, 2012 was made. The injuries were observed by a number of individuals and were photographed.

[28] What is uncontradicted in the evidence is that the child sustained injuries to his face, lower back and buttocks and leg. These injuries occurred while the child was in the care of the father subsequent to the last supervision order being made. Whether the injuries were caused by the father's actions or inaction I find that as a result there has been a material change in circumstances since the making of the order that is now under review.

[29] I find that the child's best interests require that he not be in the care of the father at this time.

[30] The Act provides at ss.37(3) that the court take into consideration enumerated circumstances in determining the child's best interest. I do so as follows.

[31] The injuries demonstrate that the father has difficulty meeting the child's physical needs, perhaps despite his best efforts. The child is delayed in his language. Given his age and difficulties communicating he remains vulnerable due to inadequate care or inappropriate physical discipline.

[32] On the basis of the evidentiary record before the Court I find that there is risk that the child may suffer harm if returned to or allowed to remain in the care of the father at this time.

6: Access

[33] The child had been in the care of the father since March 24, 2011. Progress in the father's ability to care for the child had been noted at the last status review hearing. The Society's request on this Motion that the father have access to the child twice per week for two hours per visit supervised by the Society is not consistent with the Court's obligation under the Act to impose the least intrusive Order in the circumstances.

[34] Given the uncertainty of the causes of the child's injuries (except for the broken elbow) access must be supervised. However, it is not necessary that it be supervised at the Society if there are third parties who can assist with access supervision. The Society had approved certain persons to care for the child in the absence of the father. Evidence has not been provided that these or other persons could or would act as access supervisors.

[35] The motion will be adjourned to a date to be fixed by the Trial Coordinator in consultation with Counsel to argue the issue of frequency and duration of supervised access with approved third parties.

[36] Pending the return of the Motion for that purpose the father shall have access with the child three times per week for three hours per visit supervised by the Children's Aid Society at its premises, or in the community including the father's residence supervised by case aides.

[37] The hearing of this case should be expedited. Counsel should schedule a Settlement Conference at the earliest possible date convenient to all Counsel through the Trial Co-ordinator.

7: Order

[38] An Order shall issue as follows:

1. The Order dated May 11, 2012 shall be changed by providing that the child E.C.J.O., born […], 2009 shall be placed in the temporary care and custody of the Windsor-Essex Children's Aid Society, pending final determination pursuant to ss. 64(8) of the Child and Family Services Act.

2. Pending further Order of the Court the respondent father, E.O. shall have access with the child three times per week for three hours per visit supervised by the Windsor-Essex Children's Aid Society at its premises, or in the community including the respondent father's residence, supervised by case aides.

3. The access granted to the respondent mother J.M. as contained in the May 11, 2012 Order shall not be changed.

Released: September 21, 2012

Barry M. Tobin Justice