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 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.

(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.

(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

Court File No.: C 50685/10

Address: 47 Sheppard Ave E., Toronto, ON. M2N 5X5

Date: 2013-01-22

Ontario Court of Justice

Parties

Between:

Children's Aid Society of Toronto, Applicant

— AND —

Ms. S.S. and Mr. P.Y.B., known as S.B., Respondents

Before: Justice C.J. Jones

Heard on: December 11, 2012

Reasons for Decision released on: January 22, 2013

Counsel

Ms. Yvonne Fiamengo — for the applicant society

Mr. Chad Rawn — for the respondent mother, Ms. S.S.

Mr. P.Y.B. known as S.B. — on his own behalf

JONES, J.:

Introduction

[1] This is a motion made by the applicant society (referred to as "the society") in the context of a status review application pertaining to the child, J.B. born […], 2011, currently one and a half years of age. In the initial child protection proceeding, J.B. had been placed in the care of his parents, the respondent mother (referred to as "the mother") and the respondent father (referred to as "the father") jointly, subject to the supervision of the society for a period of six months on terms and conditions, by way of an order granted by Justice M. Zuker on June 12, 2012.

[2] The society now seeks a temporary order that varies the terms of the prior supervision order, seeking to place the child in the care of his father alone, subject to the society's supervision on terms and conditions, to include restrictions on the child's contact with the mother.

The Statutory Test

[3] A status review application is governed by the provisions of section 64 of the Child and Family Services Act (referred to as "the Act"). On motion made while a status review proceeding is pending, the test to be applied when a change is sought to a child's placement is set out in section 64(8) of the Act, which reads as follows:

"s. 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 custody."

[4] The weight of the cases decided under this section have suggested that, in relation to a child's placement while a status review application is pending, this section creates a presumption in favour of the status quo. Many cases have commented on the underlying reasons for this presumption. Firstly, the legislation recognizes the importance of stability and continuity of care to a child. Secondly, the previous order was granted by the court after a consideration of the child's best interests, in the context of the protection issues that were found to exist at that time. The previous order was determined by the court to be the appropriate order at the time it was granted. This is so regardless as to whether the earlier order was made on the basis of facts agreed to by the parties, or after a hearing on contested evidence. Thirdly, a temporary order granted on motion is to be determined on the basis of affidavit evidence filed with the court, which is often conflicting and which has not been tested by cross-examination.

[5] In a 2011 decision, Justice Ellen Murray of the Ontario Court of Justice considered the terms of s. 64(8) of the Act and expressed the applicable statutory test as follows:

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

[6] This court adopts the reasoning of Justice Murray in relation to the statutory test.

[7] In making a determination in the child's best interests, the court is to take into account such of the factors set out in section 37(3) of the Act as the court feels are relevant to the circumstances of the case. Further, in keeping with the expressed purposes of the legislation, the court should bear in mind that the least disruptive course of action that is available and is appropriate should be considered.

[8] The onus or burden of proof in demonstrating that there has been a material change in circumstances that requires a change to the child's placement is on the moving party, as the party seeking to disrupt the status quo. The standard of proof is the civil standard of proof, namely, on the balance of probabilities.

The Facts

[9] Prior to the expiration of the initial supervision order, the current status review application was commenced by the society, and contemporaneously, as a result of an incident that occurred in the parents' home on September 22, 2012, the society launched the current motion seeking a temporary order changing the child's current placement. The relief sought by the society is an order placing the child in the temporary care and custody of his father, P.Y.B., subject to the supervision of the society on terms and conditions. The terms and conditions sought by the society include terms requiring the mother to reside separate and apart from the father and the child, unless approved in advance by the society. The society also seeks a temporary order that the mother's access to the child be at the discretion of the society, to be supervised by the society or an agreed upon neutral third party.

[10] Following the incident of September 22, 2012 which is referred to below, and prior to the first appearance on the status review application and the motion, the parents voluntarily agreed to live separately, and agreed that the child would be in the care of the father until the motion could be determined by the court. The society was of the view that if the terms of the prior supervision order were to continue, the child would be at risk. The parents disagreed with the society's perspective. The parents expressed that there was no need for any change to be made to the placement of the child, or the caregiving arrangements for him, from those set out in the earlier supervision order that had been granted on June 12, 2012. However, they voluntarily agreed to the terms requested by the society for the child's care, pending the hearing of the motion, to avoid a more intrusive response by the society.

[11] It is the society's position that a material change in circumstances has occurred since the granting of the supervision order on June 12, 2012, such that the terms of that order are no longer in the child's best interests and that it is necessary, in protecting the child's best interests, to change the existing order to an order placing the child in the temporary care of the father only, under society supervision.

[12] The evidence filed with the court establishes that J.B. is the youngest of seven children born to the mother, although he is the only child of the relationship between the respondent father, Mr. P.Y.B. and the mother. The mother's older children are no longer in her care. There have been prior protection proceedings in relation to the mother's older children, including a separate child protection application pertaining to the mother's second and third youngest children, currently placed in the care of extended family members. That child protection application remains pending before the court.

[13] In relation to the prior proceedings pertaining to the child, J.B., the protection issues identified by the society pertaining to the mother included the following:

1. The mother's substance abuse, particularly alcohol;
2. Past domestic conflict between the mother and her previous partners;
3. The mother's mental health issues.

[14] In its motion, the society maintains that recent events have raised concerns in the same three major areas, namely, the mother's alcohol abuse, domestic conflict with the respondent father, Mr. P.Y.B., and the mother's mental health.

[15] The child, J.B., has been in the care of the parents, subject to society supervision, since his birth. It is the evidence of the parents that, until September 22, 2012, the mother had been the child's primary caregiver. During the summer 2012, the society was of the view that the parents were doing well in caring for J.B., although the mother was also expressing to the society worker that, at times, she was feeling overwhelmed.

[16] On September 22, 2012, there was an incident that occurred in the parents' home that gave rise to the society's recent concerns. Much of the evidence surrounding the incident is in dispute between the society and the parents, however, the parties appear to agree on the facts set out in the paragraph below.

[17] On that date, police were called to the home of the mother and father, where they found both parents to have suffered an injury. The mother had consumed some quantity of alcohol. The father had incurred a laceration to his finger while the mother had suffered a knife wound to her abdomen. Both parents were taken separately to hospital by ambulance. The cut to the father's finger, which occurred as a result of a knife and was reported to be a minor injury, had been inflicted in some manner by the mother. The stab wound to the mother's torso was more serious and was self-inflicted. The mother was taken to Sunnybrook Health Sciences Centre in Toronto (referred to as "Sunnybrook") where she was initially hospitalized on an involuntary admission on a Form 1 under the Mental Health Act. The mother was seen in the trauma bay for the knife wound, where she received emergent treatment for her injury. As to the balance of the evidence, there are many areas of disagreement between the parties.

[18] The society has filed hospital records from Sunnybrook. These records indicate that the mother underwent two CT scans of her abdomen and pelvis, the first completed upon her arrival at hospital on September 22, 2012 and the second completed two days later. The first Medical Imaging Report from the first CT scan reveals that the stab wound to the mother's abdomen resulted in a small laceration to her liver, extending to the tip of the middle hepatic vein and adjacent gallbladder.

[19] Upon the mother's emergency admission to hospital on September 22, 2012, a blood sample was taken which was tested for, among other things, the mother's blood-alcohol level. The hospital Haematology/Biochemistry Report (referred to as "the lab test") indicates that the mother's Ethanol – Serum level was 63 mmol/L, which was marked as "Critical" on the report.

[20] The hospital Discharge Summary confirms much of the above information. It states that the mother presented at hospital as a trauma patient with a single penetrating stab wound to her abdomen, including a small laceration to her liver, which was confirmed by a CT scan. The mother was seen by a psychiatrist upon her emergency admission and was "formed" under the Mental Health Act. The report recites that the mother "was clearly intoxicated at the time of arrival" in the trauma bay and was "not terribly cooperative".

[21] The hospital Discharge Summary indicates that two days after the mother's arrival at hospital, the Form 1 involuntary admission under the Mental Health Act was discontinued, as the Psychiatry Team had ultimately decided that the mother was no longer a threat to herself.

[22] The summary indicates the mother remained in hospital until September 25, 2012 when she was discharged. She was to be seen within one week of her discharge by the Sunnybrook surgeon for follow-up pertaining to her injury. She was also to be seen by the Psychiatry Team as an outpatient, following her discharge.

[23] In its evidence, the society reports that conflicting information was provided to the agency by the parties. The society views the incident as having arisen due to an argument between the parents after significant alcohol consumption by the mother. The society expresses concern that the mother's injury was a self-harming attempt, which occurred while the mother was extremely intoxicated. From the society's perspective, the incident gives rise to concerns regarding domestic conflict, the mother's alcohol abuse and the stability of the mother's mental health. The society remains unclear as to whether the child was present at the time of the incident.

[24] The parents provide a much more benign description of the incident. The mother insists that the injuries to both parents were accidentally incurred, that she had consumed a small amount of alcohol prior to the event and that the child was not present. The father agrees with the mother's version of events.

[25] The mother states that on the day of the incident, the parents were having a discussion, while she was washing dishes. She maintains that she slipped on water on the floor and fell, somehow stabbing herself as a result, and while getting up from the floor, she unintentionally stabbed the father in panic when she realized she was bleeding. The mother maintains that in the ten hours preceding her injury, she drank only two glasses of wine, and challenges the accuracy of the hospital lab test of her blood-alcohol level. The mother suggests that she would have been virtually unconscious at the blood-alcohol level reported by the hospital. As Exhibit "A" to her affidavit, the mother has attached printed material from an online source, titled "BAC level Generalized Dose Specific Effects", said to be provided to her by her family doctor, in support of her statements and position on this issue.

[26] The court has reviewed these materials and has concluded that they should be accorded very minimal weight on this motion. There is no indication of the internet source of these materials, nor is there any evidence of any specific expertise of the mother's family doctor in interpreting alcohol effects at various blood-alcohol levels in individual cases. There is no evidence of whether the mother's height, weight, body mass or level of tolerance to alcohol may affect the signs of impairment shown by the mother at various blood alcohol levels. The society believes the mother has an alcohol abuse problem and that she had a regular pattern of overconsumption in the past which may affect her level of tolerance.

[27] The mother states that she has no mental health issues and that shortly after being placed on a "Form 1" at the hospital, she was re-interviewed by the hospital psychiatrists, and the Form 1 involuntary admission status was ultimately lifted. The mother asserts that thereafter, she remained in hospital due to her medical issues from her injury. While the mother's evidence is somewhat vague in terms of the timeframe within which these events occurred, the hospital Discharge Summary indicates the Form 1 was not lifted until the second day after the mother's admission.

[28] The mother maintains that the society has drawn erroneous conclusions about the facts pertaining to the incident. For example, the society maintains that the parents were arguing at the time of the incident, while the mother states, through her counsel in his submissions, that the mother and father were having a conversation about a difficult topic. The mother also objects to some of the content of the society's affidavit material, including police information, to the extent that it contains hearsay statements. The society's affidavit indicates that the police initially reported to the society that the mother had caused the injury to herself and to the father using a butcher knife, while the parents indicate that it was actually a steak knife. It is the view of the court that these differences in description are not pivotal to any of the facts in issue.

[29] The information received by the society from the Toronto Police Service is that, on the day of the incident, the parties were arguing over a jealously issue. The police officer advised the worker that he was unsure whether the mother was intoxicated or if she was just acting 'crazy". In a letter provided to the mother, included as an exhibit to her affidavit, the police officer stated that while at the hospital, the mother presented as very vocal and angry at times but would calm down after the police officer spoke with her. It is the view of the court that the evidence of the police officer does not serve to discount the results of the blood-alcohol lab test of the hospital. Further, it is not inconsistent with the hospital records of the mother's demeanour upon her arrival at hospital, noted as being "not terribly cooperative" with medical staff.

[30] The society interviewed both parents to obtain an explanation of the events that preceded the incident. According to the society's worker, the mother informed the society that she and the father were picking at and bugging each other, while she was holding a steak knife in her hand. The mother told the father she would cut him if he didn't leave her alone. She described that she then turned around, slipped on the water on the floor and fell. These statements, made by the mother to the worker, confirm some type of conflict between the parents at the time of the incident.

[31] The society is of the view that the mother's description of the manner in which she and the father were injured is awkward and implausible. Further, the society points out that the mother's report as to the quantity of alcohol she consumed and her description of her own mental state is not consistent with the hospital lab results, the hospital discharge summary and the other hospital records received from Sunnybrook nor the opinion of the society's expert, Mr. Joey Gareri, a scientist and the laboratory manager at the Motherisk Program, Division of Clinical Pharmacology & Toxicology, Hospital for Sick Children in Toronto. The society provided a copy of the lab report to Mr. Gareri, along with a request that he provide an interpretation of the 63 mmol/L blood-alcohol level. Mr. Gareri opined that the mother would have had a minimum of 7 drinks in her system to produce a blood/alcohol reading of this level.

[32] The society contends that the concerns arising from the September 2012 incident are the same concerns that the mother was struggling with in 2009 and 2010. The society acknowledges that following its involvement at that time, the mother took a number of positive steps to address the protection concerns. She attended a residential treatment program for her alcohol abuse in 2011 and established a steady relationship with the father, which remained stable over a number of months.

[33] The mother states that the child has been in her care since his birth, and that this arrangement should continue. The mother seeks a continuation of the earlier order. She offers to provide a hair strand sample for ethyl alcohol testing and is prepared to participate in random alcohol screens.

[34] Both parents described the huge inconvenience to the family that has been caused by the society's insistence that the parents live apart, with the child in the father's care. The father states that he has been unable to work due to his childcare responsibilities. Although he has arranged daycare for the child, five days per week, from Monday to Friday, he maintains that he has been unable to return to his employment, as the start time of his job is earlier than the opening time of the child's daycare in the morning. As well, the father states that he and the child are now living in cramped quarters, in a bachelor apartment of a friend, as the mother has remained residing alone in the family residence.

[35] The society's family services worker has made a referral of the mother to the Jean Tweed Centre and Breaking the Cycle for addiction counselling. The parents state that since the September 22, 2012 incident, they are now attending relationship counselling at the Rexdale Women's Centre.

Analysis

[36] The evidence of the parties is divergent on a number of issues. The independent evidence that is available to the court is the evidence set out in the medical records of the hospital, including the blood-alcohol reading contained in the Haematology-Biochemistry Report (the lab report) and the facts and observations reported in the hospital Discharge Summary. The lab report indicates a critical level of ethanol serum in the mother's blood. The mother's degree of intoxication, recorded in the lab report, is confirmed by the observations of the trauma surgeon, as recorded in the hospital Discharge Summary. From this information, the court is satisfied that upon her arrival at hospital on September 22, 2012 the mother was extremely intoxicated. Further, the court is satisfied that, while intoxicated, the mother engaged in an argument with the father, during which she was acting erratically and unreasonably, resulting in a self-inflicted stab wound to the mother's abdomen and a minor laceration to the father's finger.

[37] Following the September 22, 2012 incident, the society had good grounds to be concerned that, in relation to the mother, the past protection issues appeared to be once again emerging. The society was of the view, and the independent evidence pertaining to the mother's hospitalization confirms, that the mother suffered a relapse in her efforts to recover from her past alcohol misuse. As well, the surrounding circumstances of the incident, including the mother's self-injury, would reasonably give the society concern about the stability of the mother's mental and emotional health and the presence of conflict in her relationship with the father. While the argument that arose between the parents on September 22, 2012 appears to have intensified due to the unpredictable behaviour of the mother, from the available evidence, it does not appear that the father either initiated or escalated this conflict.

[38] It is concerning that after struggling with her recovery from alcohol abuse, on the occasion in question the mother made a deliberate choice to consume alcohol. A very chaotic situation then arose, resulting in injury to both parents.

[39] The evidence on this motion satisfies the court that a material change in circumstances has occurred, from those that existed at the time the prior supervision order was granted, relating to the level of risk to the child. The court is satisfied that, in the child's best interests, a change in the order is required as a result, in order to protect the child. In arriving at this view, the court has weighed and considered the factors set out in section 37(3) of the Act.

[40] The court is also satisfied that the temporary order sought by the society, placing the child in the father's care subject to society supervision on terms, is the least disruptive order that is available taking into account the material change of circumstances that has occurred and the child's best interests.

[41] The society seeks an order that the mother have temporary access to the child in the discretion of the society, to be supervised by the society or an agreed-upon third party. The submissions of the society and the parents did not focus on the issue of temporary access. The mother has been the primary caregiver of J.B., who is a young child. He will need to have frequent contact with the mother, ideally several times per week. The number of visits that the society can supervise each week are likely to be limited. The society and the mother are encouraged to confer to consider all options for other mutually agreeable third parties, other than the society, to supervise the mother's access, so that visits between the child and the mother may be frequent.

Order Granted on the Motion

[42] In the result, the court makes the following order:

1. An order varying the temporary care and custody of the child, J.B., by placing the child in the temporary care and custody of the respondent father, Mr. P.Y.B., subject to the supervision of the applicant society on the terms and conditions set out in paragraphs (a) to (e) of the Society's notice of motion dated November 15, 2012; and

2. An order that the mother's temporary access be at the discretion of the society, but to occur a minimum of two times per week. The mother's access shall be exercised in the presence of a representative of the society or a neutral third party agreeable to the society and the mother, with future changes in the level of supervision to be at the discretion of the society.

Released: January 22, 2013

Signed: "Justice C.J. Jones"

Footnotes

1. Children's Aid Society of Algoma v. A.B., [2012] O.J. No 2625, 2012 ONCJ 351 (Ont. C.J.) at para. 16.

2. Children's Aid Society of Toronto v. S.G., [2011] O.J. No. 5884, 2011 ONCJ 746 (Ont. C.J.) at para. 20.

3. Ibid, at para. 21.

4. Ibid, at para. 23.

5. Child and Family Services Act, R.S.O. 1990, c. C-11, s. 1(2)2.

6. Children's Aid Society of Algoma v. A.B., at para. 18.