WARNING
The court hearing this matter directs that the following notice be attached to the file:
This is a case under Part III of the Child and Family Services Act and is subject to one or more of subsections 48(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:
45.— (7) Order excluding media representatives or prohibiting publication.
The court may make an order:
(c) prohibiting the publication of a report of the hearing or a specified part of the hearing,
where the court is of the opinion that publication of the report 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.
45.— (8) Prohibition: 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.
45.— (9) Idem: order re adult.
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.
85.— (3) Idem.
A person who contravenes subsection 45(8) or 76(11) (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
Ontario Court of Justice
Date: September 3, 2013
Court File No.: C509/12
Parties
Between:
Children's Aid Society, Region of Halton Applicant
— AND —
A.W.
G.W.
Respondents
Judicial Officer and Counsel
Before: Justice R. Zisman
Heard on: July 31, August 1 and 2, 2013
Reasons for Judgment released on: September 3, 2013
Counsel:
- Diane Skrow, counsel for the applicant society
- Robert Brooks, counsel for the respondent A.W.
- Peter Tensuda, counsel for the respondent G.W.
Introduction
[1] This is a protection application wherein the applicant, the Children's Aid Society, Region of Halton ("society") seeks a finding that the children D.W. born […], 2007 and J.W. born […] 2010 are in need of protection pursuant to section 37(2)(b)(i) of the Child and Family Services Act in that there is a risk that the children are likely to suffer physical harm inflicted by the parents or caused by the parents' failure to care for, provide for, supervise or protect the children adequately.
[2] The respondent, A.W. ("mother") has executed an agreed statement of fact consenting to this finding.
[3] The respondent, G.W. ("father") has not consented to a finding that the children are in need of protection. It is the father's position that there should be no finding that the children are in need of protection from him and that they should be immediately returned to his care.
[4] Both respondents have consented to a parenting capacity assessment by Dr. Milton Blake, a psychologist to commence in September. The parties have agreed to the documents that Dr. Blake should review and to the issues he is to assess generally, whether either parent can care for the children and if so, what supports will be needed. Each parent is presenting a separate plan to care for the children.
Background
[5] The Toronto Children's Aid Society was involved with the family when their first child was born in […] 2007 due to concerns reported about the mental health of both parents.
[6] The Halton Children's Aid Society became involved with the family at the birth of the second child in […] 2010 upon receiving a report from the hospital with respect to concerns about the mother's behaviour at the hospital and alcohol use. These concerns were not verified and the society closed its file.
[7] The society was involved again in March 2012 when it received a report from the police regarding the father being arrested for dangerous driving and driving while impaired while the children were in the car. The society closed its file and did not verify any protection concerns based on a report that there was no alcohol and no illegal drugs in the father's system.
[8] The society was involved again when it was contacted on November 20, 2012 by the parents' family doctor, Dr. Hack who reported concerns about both parents including the mother's physical health, the mother's undiagnosed mental health and the father's possible substance abuse. He also reported that the mother alleged that she had been assaulted by the father the night before and that she had alluded to the fact that this was not the first time this had happened.
[9] Jennifer Christian, a protection worker for the society with experience in cases of domestic violence, met with the mother and arranged a safety plan with her and the children to leave the home. The mother agreed that she and the children would stay with a friend that night and then with her brother and his wife until the society could further investigate. The mother agreed not to have contact with the father and that she would be supervised by another adult while caring for the children.
[10] The society immediately arranged a family group conference for November 26, 2012 which was attended by society workers, the parents, the father's brother and his wife and the mother's brother. Based on the information obtained at the family conference including the fact that the mother had not followed the safety plan and had returned to the father's home, concerns about both parents' mental health and prescription abuse by the father, the society determined that the children would not be safe if returned to the parents' care. The parents would not consent to the children being placed with the maternal aunt and uncle until they addressed the protection concerns. As a result the children were apprehended on that day and placed with the maternal aunt and uncle.
[11] The society commenced a protection application and on November 29, 2012 a temporary order was made, on a without prejudice basis, placing the children with their maternal aunt and uncle.
[12] Both parents co-operated with drug hair analysis tests on December 19, 2012 which represented their use of drugs from about mid-September to mid-December 2012. The mother's test was positive for morphine, codeine, oxycodone and hydrocone. The father's test was positive for codeine and oxycodone.
[13] A temporary care and custody hearing was scheduled for December 27, 2012 but did not proceed as the mother had just retained counsel and the society requested further time to respond to the Notice of Motion and affidavit served by the father's counsel.
[14] The temporary care and custody hearing that had been scheduled for January 29, 2013 did not proceed again as the parents' counsel were not ready to proceed and the court was advised there were ongoing settlement discussions. At the request of all counsel the matter was adjourned to February 27, 2013 for a settlement conference.
[15] Prior to the return date, the parents separated and each parent was now presenting a plan to separately care for the children.
[16] At the court attendance on February 27, 2013 the parties again advised the court that there were ongoing settlement discussions and the proceedings were again adjourned to March 22, 2013 either to be spoken to (regarding a settlement) or for temporary care and custody hearing.
[17] The society brought a motion on March 22, 2013, to vary the previous without prejudice temporary order, for an order that the children to be placed in the care of the society as the maternal aunt and uncle advised the society that they could no longer care for the children. An order was made, again on a without prejudice basis, placing the children in the society's care. The society undertook to investigate a community plan proposed by the mother.
[18] The matter was then adjourned to May 2, 2013 for a temporary care and custody hearing or a continued settlement conference. Neither counsel for the parents wished to proceed with the temporary care and custody hearing and instead there were continued settlements discussions between counsel.
[19] The matter was again before the court on June 13, 2013. The court was provided verbally with some updating information about the results of the drug testing on each parent and the results of the father's psychiatric assessment. The court was advised that the parties were continuing to have settlement discussions regarding a draft Statement of Agreed Facts that the society had prepared and a possible parent capacity assessment. The father's counsel requested a further adjournment to allow the father time to consider his position.
Preliminary Procedural Issues
[20] On June 20, 2013 the matter was again before me, the parties advised that they had agreed to a parenting capacity assessment, pursuant to section 54 of the Child and Family Services Act, to be conducted by Dr. Milton Blake in terms that were filed with the court.
[21] The Statement of Agreed Facts executed by the mother was filed with the court. The father was not prepared to execute the Statement of Agreed Facts. All parties were consenting the assessment proceeding on this basis as Dr. Blake required an immediate commitment that the parties were prepared to proceed with the assessment otherwise, he would accept another referral and then would not be able to conduct the assessment. The society also advised the court that it had not been able to find another assessor who would be able to conduct an assessment in the immediate future.
[22] I indicated to all counsel that I was not prepared to order the assessment without a protection finding. I expressed my concerns that based on my review of the questions being asked of Dr. Blake that he was to focus on the capacity and ability of each parent to care for the children and what supports would be needed to assist either parent in caring for the children that is, the disposition issues.
[23] I indicated that, as the father denied all of the protection concerns, if the court did not make a finding that the children are at risk of harm and did not make findings as to the nature of those risks, Dr. Blake would be put in a position of having to make findings on the credibility of the parties regarding the protection concerns. These concerns include the alleged domestic violence between the parties, the father's excessive alcohol use, the father's misuse and overuse of prescription medications and the father attending at multiple doctors.
[24] If the assessment proceeded on this basis, at trial the judge would need to make factual findings upon which to base the finding that the children are in need of protection. The findings of the trial judge could be contrary to the findings of fact upon which Dr. Blake relied upon. Since many of the allegations are based on a finding of which parent is credible, if the court does not make those findings before the assessment, Dr. Blake will be required to do so in order to assess the risk of placing the children with either parent. The other possible outcome is that the court may find there is no risk of harm to the children from the father and that the children should be placed with him and then the delay and cost of obtaining an assessment would have been without a purpose.
[25] Although the Child and Family Services Act permits a section 54 assessment to be conducted without a finding of need for protection, it is my view that in this case this is not a desirable or appropriate process especially in these circumstances where one party has agreed to the factual underpinnings of the finding and the other does not.
[26] When I questioned father's counsel as to why the father would be agreeing to an assessment, to determine if he can parent the children, if it is his position that the children should be immediately returned to his care and that they should never have been apprehended from his care, he could not provide an answer.
[27] Counsel for the father submitted that pursuant to subrule 17(24) the Family Law Rules a judge who conducts a settlement conference on an issue should not conduct the trial on that issue. He therefore submitted that the issue of the finding should be before another judge.
[28] As the case management judge the proceeding has been before me for several ongoing settlement conferences. However, the issues discussed related to the information that the society and court would require to determine what disposition would be in the children's best interests. On several of the attendances, the case was held down or adjourned to determine if the parties could agree on how to proceed. In my view, I did not express an opinion on the finding of need of protection as all of the evidence was not thoroughly reviewed with me on that issue although I agree that many of the details relating to the finding were in the settlement conference briefs that were filed with the court. I certainly strongly encouraged the parties to come to an agreement regarding the finding so the case could move forward but the focus of the settlement discussions was always related to the disposition. Further, as the parents' counsel never proceeded with a temporary care and custody hearing, I have never adjudicated any substantive issues in this case.
[29] Unfortunately due to the necessity of retaining to Dr. Blake conducting the assessment immediately, the fact that there are only two family judges in this region and the lack of any immediate available court dates for another judge, I determined that in these exigent circumstances I would clear my own calendar and hear the finding stage of this protection hearing. I also considered that the delay in attempting to transfer the case to another judge would, if there was a finding that the children were in need of protection as a result of the father's actions, ultimately result in a considerable delay due to the difficulty of finding another psychologist who was prepared to conduct a parent capacity assessment.
[30] I am also mindful of subrule 33 of the Family Law Rules setting out the timelines for child protection cases that requires a temporary care and custody hearing to be held within 90 days and then a hearing to be held within 120 days. In this case, the children have already been in care for over 8 months. As a result of not being more attentive to the steps in the proceeding including not holding a temporary care and custody hearing and not making a finding within the statutory timelines, potential problems can arise as they have in this case which has highlighted for me the importance of ensuring speedy dates are set for the finding stage of a child protection case, where the finding is in issue. Further, by not requiring counsel to proceed with the temporary care and custody hearing, where there is no consent to a temporary order, the parties do not have the benefit of hearing the court's preliminary assessment of the strength or weakness of the case and in my view this further delays the case moving forward towards agreement as in most cases there would be an agreement on a finding of need of protection and then the parties can focus on the appropriate disposition.
[31] In this case, if the father and counsel believed that the society should not have apprehended the children and that the children could be returned with a less intrusive order then they should have proceeded with a contested temporary care and custody hearing forthwith. If after that hearing, it was held the children would not be returned and there was still a belief that the society could not meet its burden of proving that the children were in need of protection then a request should have been made for a hearing of the finding stage of this protection application.
[32] As a further procedural issue, counsel for the father alleged that the society should not have apprehended these children without a warrant. Based on the evidence presented I am satisfied that the apprehension needed to be done immediately. Even if the society should have obtained a warrant, father's counsel made no submissions as to the subsequent consequences or effect of the society apprehending without a warrant on this proceeding. The law is clear that the process of a protection application is independent of the process of an apprehension and they are two separate proceedings. Even if the process of an apprehension is found to be defective in some way, this does not affect the validity of an application. The issue of the validity of the apprehension is now moot and should have been pursued by father's counsel at the commencement of the application and not at the hearing stage.
[33] Although the mother was consenting to the finding, she and her counsel were present for portions of the trial. Before she was called as a witness, the father's counsel objected to her being in the courtroom as she was a witness. I ruled that as a party whether or not she consented to the society's position she was entitled to remain in the courtroom for all or part of the trial.
[34] The society called four witnesses, the father testified and a psychiatrist who assessed him also testified.
Evidence Regarding the Parties and Their Relationship
[35] The mother is currently 37 years old and the father is 36 years old. They met when they were in high school and had an on and off relationship. They were later married in a Muslim wedding service but did not raise their children as Muslims. They lived together until February 2013 when they separated.
[36] The mother has suffered from seizures since she was very young and is prescribed medication to control the seizures. She also suffers from Crohn's disease and is prescribed pain medication, initially oxycodone and now oxyneo.
[37] The father was diagnosed with schizophrenia when he was teenager and he described himself as a "very confused child" and that he used a lot of illegal drugs such as cocaine and ecstasy. He has received funds under the Ontario Disability Support Plan ("ODSP") since he was in his early 20's and testified that as he had been diagnosed as permanently disabled no one has ever re-assessed him.
[38] The mother is also in receipt of funds from the ODSP and in addition receives a small monthly inheritance. As the parties were residing together they received only one cheque from ODSP and had frequent arguments over financial issues. Both parents also alleged that the other parent engaged in on-line gambling and thereby squandering the financial resources of the family.
[39] The father testified that he was the primary caregiver of the children and that he also had to take care of a "mentally ill spouse". As the mother had consented to a finding that the children were in need of protection while in the care of both parents there was very little evidence about her mental health issues and she was not cross-examined about this. However, Dr. Hack testified that he had concerns about the mother's undiagnosed mental health issues and he had referred her for a psychiatric assessment. The Statement of Agreed Facts executed by the mother confirms that the results of her psychiatric assessment indicate that she is suffering from a major depressive disorder.
[40] Dr. Hack testified that whenever the father attended at his office he seemed to be functioning and caring for the children adequately. Dr. Hack confirmed that he had written a supportive letter on November 20, 2012 at the request of the father as the father was afraid the children would be apprehended by the society.
Evidence Regarding Domestic Violence
[41] The mother was called as a witness by the society.
[42] She confirmed that she had attended at the office of her family doctor, Dr. Hack on November 20, 2012 and reported that the father had attacked her the night before, that he grabbed her head and squeezed it tight and put his hands around her neck and that the children were present.
[43] Dr. Hack testified that he did not see any injuries on the mother but she was tearful, seemed genuinely frightened and she was reluctant to return home. She did not want to call the police but he encouraged her to do so and he reported the incident to the society. The mother told Dr. Hack that the fight began because the mother would not give the father her pain medication. She also reported to Dr. Hack that this was not the first time the father had been violent with her.
[44] Dr. Hack testified that the father saw him later the same day and he was very anxious and scared. He denied that he had caused any abuse to the mother and alleged that the mother was in bed, she just began to scream, telling him not to hit her and continued with this rampage. The father felt the mother needed psychiatric assistance but was refusing to get any help.
[45] Dr. Hack testified that on December 4, 2012 the mother attended at his office and told him that the father had not assaulted her but she had a seizure and maybe she had said things that were not reality. Dr. Hack testified that the mother had not previously mentioned that she had had a seizure and as he had never seen her have a seizure he had no knowledge of her behaviour before or after a seizure.
[46] The mother testified that the father had assaulted her and the version of events she initially told Dr. Hack and Ms Christian was true. She testified that at the family group conference she had not denied that the father assaulted her she just had not said anything. She stated that the father told her to return to Dr. Hack's office to change her story and he told her what to say.
[47] The father denied that he assaulted the mother in the evening of November 19, 2012. He testified that the mother was angry at him and just began to scream and kick and ran into the bathroom and called her friend and her brother. He thought maybe she had a minor seizure as she has them all the time but he was not sure what happened. In cross-examination, he testified that he was not angry at the mother for the allegations she was making as she was just "sick" physically and mentally. But he agreed that when the mother testified about this incident she appeared to know what she was saying but he felt she had a purpose.
[48] The mother testified that the father had previously assaulted her at the beginning of their relationship and he had been criminally charged. She testified that she had told the court she forgot what happened and the charges against the father were dismissed. Initially the father denied that he had ever been charged, he then recalled that he spent several weeks in jail. He could not recall what he had been charged with but recalled the charges were then thrown out when the mother testified that it was all a misunderstanding.
[49] The mother also testified about an incident that happened in either August or October 2012 when the parties were in the car and the father accused her of taking the baby bonus cheque. He slammed on the brakes and pushed her head against the dashboard. She then tried to jump out of the car. A passerby stopped and called the police. The mother testified that she lied to the police and told them that she accidentally hit her head against the windshield.
[50] The father denied the mother's version of this incident and testified that from what he could recall he had been very angry and yelling at the mother because he had let her do their income taxes and he was being audited and she took all of the tax refund. He testified that he had slammed on the brakes and he stopped the car because he thought she was going to jump out of the car as she was hanging out the door. He denied that he hit the mother's head on the dashboard, he then testified that he could not recall the mother's testimony from the day before, he then denied that the incident occurred in 2012 but it was 2011 and then agreed that maybe it was in 2012.
[51] The mother testified about another time that the father was supposed to pick up food for her and the children but returned 2 hours later as he had been playing pool with his friends and drinking. When she became angry at him he threw a glass at her that broke, tried to choke her, banged her head against the floor and told her he would kill her. The children were in the house but sleeping.
[52] She testified that at other times, both in and out of the presence of the children, he would put her down, call her "retarded" and a "Paki".
[53] The father denied that he had ever thrown anything at the mother or that he ever called the mother any such names.
Evidence Regarding Drug Test Results
[54] Julia Klein was qualified as an expert in drug testing and the interpretation of drug test results.
[55] On December 19, 2012 hair was collected from both the mother and father and sent to a laboratory for analysis. Ms Klein testified that on average hair grows 1.3 cm a month and if hair length allows 3.9 cm of hair is taken and then about 3 months of drug or alcohol use can be determined. In this case, the drug results would cover a time period from about mid-September to mid-December 2012 but as there was not a request for a segmented hair test, the results are only accurate for an average of drug use during this time frame. Ms Klein also testified that it takes 7 to 10 days for drugs to accumulate in the surface of the hair and so it would not show any recent drug use. The tests also screen for alcohol use.
[56] Ms Klein testified that the father's test results were positive for codeine at the low range suggesting occasional use and positive for oxycodone at the medium range 3284 pg/mg suggesting regular use. She could not confirm if these results would be consistent with the father obtaining a prescription for oxycodone on November 20, 2012 for 14 pills as the hair was not segmented but she testified that it would not be a farfetched conclusion. The test results were negative for alcohol use that meant the father did not drink excessively that is, there was no binge drinking (5 or more drinks a day) and he did not drink more than 2 drinks a day or 12 drinks a week.
[57] Ms Klein testified that the mother's test results were positive for morphine, codeine, oxycodone and hydrocodone. The concentration oxycodone was 119pg/100mg.
[58] Ms Klein's report stated that the opiate oxycodone is marketed as percocet, oxycotin, oxycocet etc. and it can only be obtained by prescription and that it is extremely addictive and it is important to determine if the person who is being tested had a prescription for the drug.
[59] Ms Klein also conducted a drug test on the father on April 23, 2013 that was negative for all substances. Due to the insufficient length of hair, the test results could not be segmented and only represented a time period from mid-March to mid-April 2012 but she testified that if there was considerable use of drugs during this time by the father she would have expected to a positive result.
Evidence Regarding Alcohol Use
[60] The mother testified that the father drank "quite often". She testified that he drank beer every day or every other day or sometimes 3 times a week. She did not know the amount he drank. She described that when he drank his eyes would become glossy and his speech was slurred and sometimes he would just pass out. The mother testified that when they fought the father had usually been drinking.
[61] The mother reported to both Dr. Hack and Ms Christian that on night of November 19th when she alleged the father assaulted her he had been drinking.
[62] The father denied that he drank to excess and described himself as a responsible drinker and only a social drinker. He testified that he drank 1 or 2 beers a night and that for every beer he drinks he has a glass of water.
[63] In cross-examination, he testified that he drank 1 or 2 beers but not every night. When asked how much he drank in the past few weeks he testified that he drank 4 days a week but then said "don't quote me on that" as he did not keep track. He could not recall if he was drinking in November to December 2012 but believed he was not.
[64] He did not agree with Dr. Hack's note on September 28, 2009 namely, that he told Dr. Hack that he drank 3 to 5 beers a day on average with binge drinking occasionally.
[65] He did not recall telling the police during their investigation on March 10, 2012 that he had drunk 4 beers the night before. He testified that he took a breathalyser and the reading was zero.
Evidence Regarding the March 10, 2012 Incident
[66] The father was driving with the children in the car on March 10, 2012 when he was observed to be driving erratically and losing control of his vehicle. Several motorists called the police to report his driving and that they had to get out of the way to avoid being struck by him. He has been charged with dangerous operation of a motor vehicle and impaired operation of a motor vehicle by drugs.
[67] The father testified that this was unintentional and a "100% accident". He testified that it was some kind of pharmaceutical mix-up as he only took one pill several hours before the incident that had been prescribed to him namely, temazepam. He felt fine, put the children in the car and went to pick up the mother but then he began to fall asleep. He could not explain what happened. He was vague about the charges and testified that he was concentrating on getting his children returned to him and not on the criminal charges that he was sure would be resolved.
[68] In cross-examination, when questioned about this incident could not recall any details, not even the time of day when it occurred. When shown the police occurrence report that indicated the incident happened at 6:15 p.m. he testified that he did not have much of a recollection of that day.
[69] In cross-examination, the father was shown the police report that indicated that the father was responsive to questions asked by the police regarding what he drank and that he had stated that he had 4 beers the night before. The father testified that he could not recall anything he said to the police but then pointed out that he took the breathalyser and had zero alcohol in his system.
[70] In cross-examination, it was pointed out that the police report stated that when they arrived on the scene, the father was in the driver's seat, one child was secured in a car seat but the other child was not secured and was standing outside the car. The father testified that D.W. had learnt how to undo his seat belt and that the father had properly secured both children when he put them in the car.
[71] It was further pointed out that the police report indicated that the police found a prescription pill bottle in his jacket with his wife's name on it for 60 oxycontin and that it contained white pills but the mother had told the police she took small pink pills. The father initially testified that he could not recall anything and did not know why he had the pill bottle. He then testified that the mother would always wear his jacket and he put it on that day and that the mother always mixed up her medications. The police report indicated that father told the police he could not recall what he was doing that day or why he took the pill but he assumed he had some anxiety. He could not recall any specific issues that caused him anxiety that day.
[72] The father was shown Dr. Hack's notation for a visit by the father on March 27, 2012 when the father told Dr. Hack that he had been charged with reckless driving, that he had passed out and was weaving around the road with the children in the car. The father told Dr. Hack that he had taken one temazepam pill 3 hours before driving due to some anxiety related to meeting up with the mother's parents (this was an error as the mother's parents were deceased). Dr. Hack concluded that the father's reaction was likely due to benzodiazepine use.
[73] In December 2012, Dr. Hack received a letter from the father's criminal lawyer advising him about the results of the drugs found in the sample of the father's urine seized on March 10, 2012 and requesting information about the prescribed medication for the father. The letter stated that the following drugs were detected:
a) diazepam b) temazepam c) oxazepam d) 7-aminocionazepam e) codeine f) oxycodone h) trazodone
[74] Dr. Hack testified that he was shocked when he received this letter. The only drug that he had prescribed for the father at that time was temazepam to help him sleep and that it would cause drowsiness so no one should be driving when taking that medication. Dr. Hack testified that there was no reason anyone would have all of those drugs in their system. Dr. Hack did not know the father was using these medications which the father told him he obtained from walk-in clinics. Dr. Hack testified that as a result of this information he was on heightened alert about the father's use of pharmaceutical drugs.
[75] In cross-examination, when asked to explain why these eight different drugs were found in this system and to respond to Dr. Hack's evidence about these drugs, the father testified that the results of the urine screens "threw him off" since he agreed that these were not his prescriptions. When asked why he took temazepam that had been prescribed for sleeping before he was going to drive a car with the children, he stated that he had used that pill before for anxiety as it was in the benzodiazepine class and it had not caused a problem. The father then provided a long explanation about how the same drug could show up as different drugs in his urine and also as different drugs metabolize at different rates this it did not mean he had taken all of the drugs at the same time. During this long and convoluted explanation the father never explained how he obtained any of these various drugs or why he was using them.
Evidence Regarding the Father's Use and Abuse of Prescription Drugs
[76] Dr. Hack and the mother both testified that she had been prescribed pain medication for her Crohn's disease, cipralex for depression and also anti-seizure medication.
[77] Dr. Hack explained that percocet and oxycotin were pain medications that were shorter lasting and had smaller dosages and that oxycodone was stronger and longer lasting. He explained that oxycodone was no longer made and had been replaced by oxyneo that could not be crushed and therefore could not be snorted or injected.
[78] Dr. Hack testified that prior to November 20, 2012 he had never prescribed any pain medications for the father.
[79] The mother testified that she was prescribed 60 pain pills a month and was to take two a day but she only took them when she was a great deal of pain. She testified that the father would take anywhere from 50 to 55 of her pills. When she was prescribed oxycodone the father would crush the pills and snort them and then when she was prescribed oxyneo he would put them in the microwave and use a process he learnt from the internet but she was not certain about how he used them.
[80] The mother testified that she began to hide her pills from him and that was how their argument began on November 19, 2012. The mother described that the father would get sick from the pills and he was unable to get out of bed, would vomit, sweat excessively and just not be himself.
[81] The father was charged in April 2011 regarding an incident of presenting a false prescription. The father explained that it was a mix-up as the mother had obtained a prescription which she filled and the pharmacist had taken a photocopy of the prescription. His evidence was not clear about how or why he obtained the copy. He testified that he thought it looked like a prescription and attempted to fill it. He was charged but the criminal charges were subsequently withdrawn.
[82] The father testified that he would fill the mother's prescriptions but denied that he took her pills. He testified that he made sure she took her medication as prescribed. When he was asked in cross-examination why then the amount of oxycodone found in his system, according to the drug test results in December 2012, was significantly higher than the amount in the mother's system he had no explanation.
[83] The father attended at Dr. Hack's office on November 20, 2012 and discussed the mother's allegations that he assaulted her and his concerns about the mother's mental state. He showed Dr. Hack a whole bag of cipralex that she had not been using. The father also complained about a cracked tooth. The father told Dr. Hack that he had been using percocet which was prescribed by his dentist and diazepam previously prescribed by a walk-in clinic. He also told Dr. Hack that he used some clonazepam the day before to help with his anxiety and stress. Dr. Hack gave him a prescription for 30 lorazepam pills for stress and 14 percocet pills for his dental pain. Dr. Hack also discussed with the father his concerns about dependency on benzodiazepine and warned him about chronic use and also expressed concerns about the father going to walk-in clinics.
[84] The father again attended at Dr. Hack's office on November 22, 2012 and told him that the mother had taken his prescription medications that he had given him for dental pain and anxiety. The father told him he had not been able to attend at the dentist and wanted another prescription. Dr. Hack would not give the father another prescription.
[85] The father had produced to the society a copy of his prescription history from a Wal-Mart pharmacy. These records were filed as business records by the society. When shown that the records indicated that the father filled the prescriptions given to him by Dr. Hack on November 20, 2012 and that the same prescription was filled on November 23, 2012, the father initially testified that Dr. Hack obviously was wrong and must have given him another prescription. He then testified that he must have gone to the pharmacy on November 20 and that he must have gone back to the pharmacy on November 23 to fill the prescription. He never explained how he was able to fill one prescription twice.
[86] In cross-examination, the father was asked to explain two other prescriptions for oxycocet on January 19 and again on January 20, 2012 by two different doctors. Initially he could not recall who the doctors were or why the pain medication was prescribed. But then he testified that it must have been for his dental pain and he went to an emergency dentist and then his regular dentist. When asked to explain why he was complained about dental pain in January 2012 and again to Dr. Hack in November 2012 he testified that he had a lot of problems with his teeth and saw several different dentists but couldn't recall their names.
[87] When cross-examined about the printout from the Wal-Mart pharmacy the father initially stated it was accurate, but then testified that these were not all of his prescriptions and that he couldn't confirm they were accurate. When asked where else he filled his prescriptions he stated he used a pharmacy close to the walk-in clinic in Burlington. When it was pointed out that he had testified he received the prescriptions from his dentists and that had nothing to do with the pharmacy near the walk-in clinic, his only response was that he would have to search his records.
[88] When questioned about why he went to various walk-in clinics the father explained sometimes he has to wait two weeks to see Dr. Hack. When it was pointed out that the records of his appointments with Dr. Hack suggest that he was there frequently, the father responded that it depended on how busy he was and he needed to book an appointment in advance.
[89] The father was presented with his OHIP records that were entered as business records at the trial. The records indicated that from November 20 to December 9, 2012 that is, in 20 days, he had been seen 7 times by doctors that included 3 visits to Dr. Hack. When asked about the other doctors, the father testified that he could not recall the dates or the doctors or if any drugs were prescribed.
[90] Dr. Hack's records also contained a note from the Burlington walk-in clinic dated December 9, 2012 indicating that the father had been to that clinic seven times previously and that the last visit had been on November 28th, 2012. The note stated the father attended for anxiety related to family problems. The father agreed that this note about the number of times he attended at the walk-in clinic must be correct but he could not recall how often he attended or any specific reasons for his attendance.
[91] Dr. Hack testified that there were no rules that prevented walk-in clinics from prescribing medications for anxiety or prescribing controlled substances. He also testified that the majority of walk-in clinics do not provide information to the family doctor about their patients so there is no continuity of care. Dr. Hack testified that it was important for the family doctor to oversee the use of medications by their patients and to see if the medications were being taken properly.
[92] Dr. Hack had encouraged the father not to go to walk-in clinics and to see him so he could have oversight regarding his care. When Dr. Hack received the report regarding the drugs that had been in the father's system when he had the accident in March 2012, he was more suspect than he had previously been about the father abusing drugs. Dr. Hack was not aware of any pain the father had that required pain medications. He was also concerned about how the father was managing his stress and anxiety by taking benzodiazepine class of drugs such as chlorazapam and diazepam as opposed to dealing with the underlying causes of his anxiety and stress.
Evidence Regarding the Father's Mental Health
[93] When the father first saw Dr. Hack in September 2009 he advised him that he had been hospitalized numerous times at the Whitby hospital in the psychiatric unit and there was a possible diagnosis of schizophrenia. Dr. Hack had requested the records from the hospital but never received them. Dr. Hack saw the father many times since that time and almost all of the appointments were related to the father's anxiety, stress, problems with sleeping, feeling depressed and feeling overwhelmed with his family situation.
[94] The father was assessed by Dr. Colonne who prepared a report dated April 15, 2013 that was filed in these proceedings and Dr. Colonne also testified.
[95] Dr. Colonne met with the father on April 15th for about 45 to 60 minutes and all of the information he received was from the father and a referral form from Dr. Hack. The father advised Dr. Colonne that he has been accused by his spouse of being "a schizophrenic, drug addict who goes into rages" and that they are now separated and his spouse made these allegations against him when he attempted to gain custody of their children. In his interview with Dr. Colonne the father denied any problems with sleeping, any past charges of assault and denied abusing his spouse and stated that he was not taking any prescribed medications. The father also stated that he had abstained from any street drugs for the last 10 years and only drank socially. The father reported that he was anxious over the current situation regarding his children and was considering whether or not he should take medication.
[96] Dr. Colonne concluded that the father suffers from a mild social anxiety disorder. He concluded that the father did not have schizophrenia as he had been symptom free for 10 years without any medication. He felt that the father had suffered from a possible drug induced psychosis in the past due to his abuse of a multiple of street drugs at the time. He recommended that the father attend at the cognitive behaviour therapy group to deal with his anxiety.
[97] Dr. Colonne also stated that from his observations of the father and his personality traits there was nothing that would preclude him from parenting his children or impact on any risk to his children.
[98] In cross-examination, Dr. Colonne testified that in addition to information from the father he received a one page referral letter from Dr. Hack that requested a diagnosis and recommendations for treatment. The referral form described the father's current presentation was that he was under stress, mood was quite down, he was anxious and had brief psychiatric episodes. The referral also indicated that the father had no history of violence or alcohol and that he had a history of drug abuse.
[99] Dr. Colonne agreed that he had not been told that the father had been charged with domestic abuse years prior or that he was currently facing charges of dangerous driving and driving while impaired by drugs. Dr. Colonne had also not been told that at the time of the driving incident that the father had numerous drugs in his system that were not prescribed for him and he had not been told the father was taking or had taken pain and anti-anxiety medications.
[100] Dr. Colonne agreed that he could not comment on how the father was functioning in November 2012.
General Principles of Applicable Law
[101] The Child and Family Services Act governs child protection proceedings. Section 1 sets out the paramount purposes of the act being to promote the best interests, protection and well-being of children.
[102] In this case the society seeks a finding that the children are in need of protection pursuant to section 37(2)(b)(i) in that there is a risk that the children will likely suffer physical harm as a result of the father's failure to adequately care for, provide for, supervise or protect the children. The risk must be real and not speculative.
[103] The onus is one the society to prove on a balance of probabilities that the children were at risk of physical harm.
[104] In determining the relevant time for a finding that the children are in need of protection, the court must chose a flexible and child-focused approach. A court can admit and consider evidence as to whether the children are in need of protection at the commencement of the proceeding, at the hearing date or at any other date depending on the circumstances of each case.
Findings of Credibility
[105] It is the position of the society that the court must assess the credibility of the mother and father as their versions of events with respect to incidents of domestic violence, the father's use of alcohol and non-prescribed drugs were diametrically different.
[106] I agree with the society that the mother's evidence was straightforward, consistent and was not shaken in cross-examination. She admitted she did not tell the truth when she changed her testimony in the criminal trial when he father had been charged with assaulting her. She explained why she returned to Dr. Hack's office to recant her report of the incident of violence on November 19, 2012. There was no objection to Ms Christian expressing the view that based on her experience it is common for women in abusive relationships to minimize or deny incidents of domestic violence. Even if this evidence had been objected to, in my view the court can take judicial notice of this undisputed and well-researched phenomenon.
[107] The mother's evidence regarding the father using her pain medications is consistent with the hair follicle test results. The mother's description of how the father would crush and snort her oxycodone pills was specific and detailed and not even questioned in cross-examination. The mother's evidence regarding the father abusing prescription medications is consistent with the father's OHIP and pharmacy records that indicate he attended at multiple doctors to obtain pain medications. Her evidence is also consistent with the variety of prescription drugs found in the father's system on March 10, 2012 and Dr. Hack's evidence regarding his own concerns about the father misuse and dependency on prescription medications.
[108] I contrast the mother's evidence with the father's evidence that was evasive and inconsistent. When confronted with concerning evidence about his drug use or attendances at various walk-in clinics, he could not recall any details or denied the veracity of the records he himself produced from his pharmacy. He questioned the veracity of Dr. Hack's notes and the OHIP records. Most concerning was his total inability to explain the circumstances leading up to and resulting in his criminal charges of dangerous driving and impaired driving on March 10, 2012.
[109] I have considered that both the mother and father have a personal interest in these proceedings as both are presenting competing plans for the children to be placed in their respective care and therefore they both have motives to either exaggerate the failings of each other or mitigate their own failings. But it was only the father whose evidence was challenged and discredited in cross-examination. There is no independent evidence to substantiate any of the father's testimony. Although the legal onus is on the society to prove its case, there is an evidentiary onus on the father to provide some proof to contradict the society's version of events. For example, in this case the father maintained that he obtained prescriptions for oxycodone from various dentists and yet he provided no dental reports and did not call his dentist as a witness.
[110] I have also considered that the mother has undiagnosed mental health issues but her evidence was straightforward and she understood and answered all of the questions posed to her. Again I contrast the evidence of the father who when confronted with documentary evidence that contradicted his testimony he was evasive and constantly changed his testimony or testified that he could not recall or explain.
[111] I found all of the professional witnesses to be credible. I would put limited weight however, on the conclusions of Dr. Colonne regarding his assessment of the father's mental health, as he was not made aware of relevant facts about the father particularly with respect to his abuse of prescription medications.
Application of Principles of Law to the Relevant Facts
[112] I find there is overwhelming evidence that the children were at risk of physical harm while in the care of the father before, at the time of, and subsequent to the apprehension.
[113] I find that the incident of March 10, 2012 is the most compelling evidence and clearly demonstrates the risk of harm to children who are in the care of a father who drives while under the influence of prescription drugs that were either not prescribed at all or that were prescribed and then misused by him. If the father's evidence is believed that he cannot recall anything about that day or about losing control of his car then he must have been extremely impaired by drugs.
[114] It is submitted by father's counsel that the court should not consider this evidence as the police record is not accurate and points out the report states that the police officer told the father he could smell alcohol on his breath and the breathalyser readings were zero. However, the father never disputed the relevant facts about this incident and testified he couldn't remember how he lost consciousness and blamed his loss of control of his car due to the fact that he took one sleeping pill. I do not accept that just because the police officer may have been wrong about the father drinking that the court should ignore or discount the remainder of the report.
[115] Father's counsel also submits that the court not put any weight on the accident because it happened almost eight months before the apprehension or that the court should consider that the society investigated and closed its file. He also submitted that Dr. Hack after this incident wrote a letter stating that the father was very attentive and able to care for his children.
[116] In my view, the court is entitled and in fact, must consider all evidence that relates to the protection, safety and well-being of children and the facts of the March 10th incident are pivotal in determining if the children were at risk of physical harm while in the care of the father. The society closed its case based on incorrect information that there were no drugs or alcohol in the father's system at the time of the incident. The society did not find about the extent and nature of the drugs that father had used until it obtained a copy of Dr. Hack's notes.
[117] Dr. Hack testified that he did not find about the number of drugs in the father's system until he received the letter from the father's counsel in December 2012. He testified that he was shocked and there was no medical reason for anyone to have all of those medications. He confirmed that he had only prescribed one of the drugs and it was a sleeping pill and that the father should not have been taken the medication before driving as it causes drowsiness.
[118] In cross-examination by father's counsel, Dr. Hack confirmed that he would have called the society on November 20th, even if he thought the children were going to be in the care of the father as opposed to the mother. He testified that based on the information he had that day from both the mother and father there were enough concerns about both of them to alert the society.
[119] I find that the father continued to misuse prescription medications after the March 10th incident and therefore did not learn anything about the dangers of the misuse of prescription medications. I find that the father was prescribed 30 lorazepam and 14 oxycodone pills on November 20th by Dr. Hack for dental pain and stress and when Dr. Hack refused to give him another prescription on November 22nd he somehow was able to fill the same script again on November 23rd.
[120] I find that on previous occasions that father has obtained prescriptions from two different doctors for oxycodone. I find that despite having a family doctor Dr. Hack who was accessible and despite being warned about attending at walk-in clinics that father continued to use walk-in clinics. Based on the evidence I accept, I draw the inference that the father was "doctor shopping".
[121] The father's counsel submitted that the OHIP records and prescription records from the Wal-Mart pharmacy may not reliable and therefore should not be relied upon by the court. If there were any errors in these records the father certainly never explained what they were.
[122] I find that the results of the father's hair analysis indicate that between mid-September and mid-December 2012 the father used oxycodone fairly regularly. I also find that the father's evidence that he always made sure the mother took her oxycodone medication as prescribed, which is two pills a day, is not consistent with the results of her hair analysis. The father could not explain why the amount of oxycodone in his hair was 27.6 times higher than the amount in the mother's hair if she was taking her medication in accordance with her prescription.
[123] I find that the father was misusing prescription pain medication before and at the time of the apprehension. I accept the mother's evidence that the father would take her pain medication and find ways to snort or ingest the drug. The mother's evidence is consistent with the results of the drug tests.
[124] The father's counsel submits that the drug results only indicate medium levels of oxycodone and therefore would not cause a risk of harm to the children in his care. However, as counsel for the society submitted in reply, the hair sample was not segmented and therefore the results are an average of the amount of drugs used for the three months and there is no definitive evidence of how much was used in each month. This coupled with the troubling evidence regarding the father filling two prescriptions for oxycodone in three days, when he only had one legitimate prescription, adds to the concern about his misuse and abuse of prescription drugs.
[125] Although there is some evidence about the father binge drinking in the past, I would not find that the father's drinking habits would put the children at risk of harm. However, if the father is using alcohol to deal with stress or drinking while also misusing prescription drugs this would be a risk to any child in his care. But the society conceded that there was insufficient evidence regarding the father's use of alcohol to provide proof that such use would be a protection concern.
[126] I find that the society has proven on a balance of probabilities that the father verbally and physically abused the mother and thereby exposed the children to risk of harm on many different levels including both physical and emotional harm.
[127] I therefore find that the children D.W. born […], 2007 and J.W. born […], 2010 are in need of protection pursuant to section 37(2)(b)(i) of the Child and Family Services Act namely, that there is a risk that they will suffer physical harm while in the father's care.
[128] The statutory findings pursuant to section 47(2) of the Child and Family Services Act are made as set out in the Statement of Agreed Facts filed in these proceedings.
[129] A copy of this judgment should be provided to Dr. Milton Blake for the purposes of conducting his parent capacity assessment.
Conclusion
Released: September 3, 2013
Signed: Justice Roselyn Zisman
Footnotes
The affidavit of the society worker only refers to concerns about the mother's behaviour but Exhibit 2 which is a letter from the society closing its file also refers to concerns reported by the hospital about alcohol use although there are no details.
Winnipeg Child and Family Services v. W. (K.L.), 2000 SCC 48, [2000] 2 S.C.R. 519 para. 79; Family and Children's Services of St. Thomas and Elgin v. W.F., [2003] O.J. No. 717 (OCJ) paras. 227-228 and 235-237.
Children's Aid Society of the Niagara Region v. P.T., 2003 35 R.F.L. (5th) 290 (SCJ Family)
Children's Aid Society of Hamilton-Wentworth v. K.R., [2001] O.J. No. 5754 (SCJ Family)
See Children's Aid Society of Toronto v. C. (S.A.), 2005 ONCJ 274, [2005] O.J. No. 2154 (OJC), affirmed on appeal , [2005] O.J. No. 4718 (SCJ), affirmed 2007 ONCA 474, [2007] O.J. No. 2609 (OCA), leave to appeal to SCC denied [2007] SCCA No. 462 for a thorough analysis of the type of harm caused by domestic violence.
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