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.

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 File and Parties

Court File No.: 259/11

Date: 2013-01-13

Ontario Court of Justice

Between:

Children's Aid Society of Algoma, Applicant,

— And —

F.B. (mother), J.B. (father of H.B.), J.K. (father of D.K.) Respondent.

Before: Justice Nathalie Gregson

Heard on: January 3, 2013

Reasons for Judgment released on: January 11, 2013

Counsel:

• John Rossi for the applicant society
• T. Frederick Baxter for the respondent (F.B.)
• Kristi Whitfield for the respondent (J.B.)
• Christopher Fitzgerald for the respondent (J.K.)
• Annalisa Rasaiah for the Office of the Children's Lawyer, legal representative for the children

GREGSON J.:

Motion for Summary Judgment

[1] The Society of Algoma (hereinafter referred to as "Society") brought a notice of motion for Summary Judgement pursuant to Rule 16 of the Family Law Rules seeking:

(a) A finding that the children, D.K. born 2000 and H.B. born 2010 are children in need of protection pursuant to section 37(2)(b)(i) and (ii) of the Child and Family Services Act; and

(b) An order that there be no further child protection orders with respect to the children pursuant to section 57(9) of the Child and Family Services Act.

Background Facts

[2] The Society commenced a protection application on December 20, 2011 concerning the children D.K. whose mother is F.B. and whose father is J.K., and the child H.B. whose mother is F.B. and whose father is J.B.

[3] At the time of the protection application, the Society was seeking a finding in need of protection pursuant to section 37(2)(b)(i), 37(2)(b)(ii) and 37(2)(g) of the CFSA. The Society also sought placement of both children with their respective fathers subject to Society supervision for a period of nine months. The mother was to be entitled to reasonable access to the children to be supervised at the discretion of the Society.

[4] The mother and J.K. separated some time ago and have a final court order which provided them with joint custody of their son D.K., however, D.K.'s primary place of residence was to be with his mother. According to the Society's affidavit material, as of May 11, 2011, D.K. had begun to live intermittently at times with his father. At the time of the commencement of these court proceedings D.K. had been residing consistently with his father for a period of at least one month despite the parties' court order.

[5] The mother and J.B. separated on or about December 5, 2011 just a few weeks prior to the protection application. Neither parent has legal custody of H.B. However, on the date of the parties' separation, J.B. had taken H.B. with him without the express consent of the mother. It appears the father may have had de facto custody of H.B. however it would have been for an extremely short period of time prior to Society involvement.

Prior Society Involvement

[6] According to the Society's material, they have been involved with the mother and J.K. for a period of seven years prior to their most recent involvement. There were apparently 10 openings with the family from 2003 to November 2010 for a variety of reasons which included the mother's use of alcohol and marijuana, excessive discipline by J.K., lack of supervision, the mother's mental health and allegations made by the mother of sexual abuse vis-à-vis the paternal grandmother as well as custody and access issues between the parents.

[7] It should be noted however that some concerns warranted some investigations while others did not. Regardless, no court intervention was ever required until now.

Events Leading to Protection Application

[8] What led to the current protection application seems to have initially commenced with a telephone call from D.K.'s paternal grandmother on February 2, 2011 to the Society regarding ongoing concerns she had with the mother's treatment of D.K. In fact, J.K. also reported to the Society that he felt the mother was acting irrationally and appeared to be emotionally unstable.

[9] During the Society's investigation of these concerns, the mother acknowledged to the Society child protection worker that she was indeed having difficulties managing D.K.'s behaviours which she felt were challenging. She reported that at times D.K. had to be restrained.

[10] The Society believed the custody and access conflict between the parents was causing stress on D.K. and this was further confirmed by his AFS counsellor as D.K. was holding in his bowel movements and soiling himself as a response to the conflict between his parents.

[11] As of May, 2011, on the recommendation of D.K.'s AFS counsellor, D.K. began to reside with each parent on a week-about basis.

[12] The Society received information from the mother's psychiatrist Dr. Tang that she had been a patient of his since 2005 and had been diagnosed with Post Traumatic Stress Syndrome and anxiety disorder. He stated in April 2011 the mother had to be calmed due to increased stressors in her life, especially concerning J.K. and D.K. and as a result the mother was referred to counselling. Dr. Tang acknowledged the mother had always been medication compliant.

[13] On August 1, 2011, the mother and J.B. moved to Thessalon, Ontario with the children. The relocation appeared to cause further stress on D.K. and the child's own mental health. D.K. began reporting to the child protection worker that he was always being punished by his mother and he resented the move to Thessalon by his mother which caused even further strain on their mother-son relationship.

[14] By November 2011, D.K. was spending the majority of the time with his father as his relationship with his mother continued to be strained. When the father had D.K. in his care he had to drive D.K. to Thessalon each day so he could attend school in that area as the mother refused to permit D.K. to reside permanently with his father in Sault Ste Marie and change schools.

[15] On November 11, 2011, J.B. called the Society to report his wife was in hospital as she had significant back pain and that such pain had been affecting her moods. He later admitted that her pain had had a negative impact on her moods and behaviours for the past five months. The mother suffered from two herniated disks and sciatic nerve pain causing her significant pain. In fact, between October and December 2011, the mother spent much time either in hospital or bedridden while at home due to the severe pain she suffered.

[16] The mother was released from hospital on November 21, 2011 but was readmitted the next day. On November 23, 2011, J.B. contacted the Society and indicated he was concerned about the mother's ability to manage D.K.'s behaviours due to her physical health and short temper.

[17] As of December 5, 2011, D.K. remained with his father as the mother had been released from hospital but was bedridden. On or about this same day, there was a dispute between the mother and J.B. and he left the matrimonial home with H.B. and went to his parents. The mother attended at H.B.'s paternal grandparents' residence where an argument and possible scuffle ensued which led to the mother falling down the front steps of the home. The mother had to be transported to hospital. No criminal charges were ever laid.

[18] J.B. then informed the Society that the mother's mental health had deteriorated during the previous five months and that she had been both verbally and emotionally abusive towards him. In turn the mother reported J.B. had anger management issues and had assaulted her causing her to fall down the stairs.

[19] The mother had back surgery on December 10, 2011 and it appears her surgery has relieved her back pain.

[20] While the mother was hospitalized, D.K. reported to the child protection worker that he wished to remain in the care of his father and was extremely fearful of his mother's behaviours if he had to return to her care.

[21] On December 14, 2011, the mother attempted to remove D.K. from his father's home by relying on their custody order which provided her with primary residence and had contacted the police to assist her in enforcing the terms of the order. The police declined to enforce the order as the child protection worker advised police D.K. was safe in the care of his father and had been with him for some time.

[22] The Society began their protection application on December 20, 2011 primarily as a result of their concerns regarding the mother's declining mental health, custody and access conflict with both fathers and her physical health issues.

Mother's Position

[23] It has always been the mother's position that the fathers took advantage of her medical situation in an attempt to gain custody of the children. In particular, the mother noted there had been a history of J.K. and his mother alienating D.K. from her causing the mother-son relationship to be strained and resulted in D.K.'s challenging behaviours when he was in her care.

[24] The mother also felt J.B. knew that their relationship was on thin ice and was probably aware the mother would want to separate and his actions allowed him to gain an upper hand in claiming custody of their daughter.

Temporary Care and Custody Hearing

[25] A temporary care and custody hearing was held on April 17, 2012 at which time I granted the Society's notice of motion to place D.K. with his father J.K. and to place H.B. in the care of her father J.B. subject to access provisions for the mother.

[26] I noted at that time in my oral reasons that I felt the mother's mental health had declined having a negative impact on her children, in particular D.K. It was clear there was much conflict going on between the mother and J.K. as of the spring of 2011. This was compounded by the mother having to deal with D.K.'s challenging behaviours. D.K. recounted daily arguments with his mother, having her yell in his face and his feeling as though he had to walk on eggshells to prevent an eruption with his mother. As a result of the mother's actions with her son, the relationship between them continued to be strained. It essentially came to a head when the mother relocated to Thessalon making things in D.K.'s eyes all the more difficult as he was away from his father, friends and school.

[27] The conflict between the mother and J.K. was clearly unhealthy and having a negative impact on D.K. Clearly, D.K. was reacting to the conflict by holding in his bowel movements and soiling himself.

[28] In the meantime, the mother was contending with some unhappiness in her own relationship to J.B., feeling overwhelmed with the move to Thessalon, was on various medications for her back pain and mental health all the while being in excruciating pain. It also appears that H.B. was having difficulty calming herself and sleeping as the mother had to seek out a naturopath to assist her with this issue. There were a significant amount of stressors the mother had to contend with all at once.

[29] I would agree that a combination of all of these stressors in the mother's life impacted her physical, emotional and mental health well-being which was causing her to be short tempered as observed by J.K. and J.B. Certainly, D.K. commented to the child protection worker that he feared his mother's behaviours if he had to return to her care. Currently, possibly as a result of the mother's behaviours, D.K. does not wish to have unsupervised contact with his mother.

[30] I felt at the time of the temporary care and custody hearing that the mother's decline in her mental health was more than likely a culmination of stressors in her life and was probably situational. It was best the children be removed from her care temporarily to permit her to regain control. I was not prepared at that time to return the children to her care as I wanted to ensure she had regained both physical and emotional stability. I had noted all of the positive strides the mother had made come April 2012 and she has continued to do so for the benefit of her children.

[31] I made it clear at that time that I felt the level of risk of harm was extremely low, however, I chose to leave the children in the care of their respective fathers as the mother's positive changes were relatively recent and I wanted to ensure that increased access and parenting of the children could be handled by the mother prior to having the children possibly returned to her care. In fact, I clearly noted that I felt if the mother continued on the same course of action she was on that the child protection case would become a custody and access type of situation.

Current Status and Parties' Positions

[32] Currently, the mother is doing extremely well and there are ongoing discussions between her and J.B. to enter into a shared parenting arrangement of their daughter H.B. The mother is also content not to remove D.K. from his father's care which shows incredible insight on her part. As a result, the Society believes the initial risk of harm has abated and there is no longer a need to have them involved with these parties.

[33] All parties conceded there was no longer a requirement to keep the Society involved. All parties including OCL counsel for D.K. conceded to the finding in need of protection sought by the Society. However, the mother opposed the finding stating the Society should have never been involved as there was never any risk to her children.

Legal Analysis

Section 37(2) of the Child and Family Services Act

[34] Section 37(2) states the following:

CHILD IN NEED OF PROTECTION – A child is in need of protection where,

(b) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person's,

(i) failure to adequately care for, provide for, supervise or protect the child, or

(ii) pattern of neglect in caring for, providing for, supervising or protecting the child.

Timing of Evidence

[35] In regards to the issue of finding the children in need of protection, the Court can look at the evidence which existed at the time the protection application was initiated or at other evidence during the child protection proceedings.

Finding of Risk of Harm

[36] In my view, there is evidence to demonstrate the children were in need of protection at the time the protection application was initiated.

[37] The threshold for whether a child is at risk of harm has been lowered by the removal of the modifier "substantial" which once was in the legislation. The court has to determine if there is a "risk" whether the risk be intentional or unintentional, whether minor or great. However, the risk has to be more than a speculative possibility.

[38] I don't believe one single factor could be said to have placed these children at risk of physical harm, however, a culmination of a number of factors which included the mother's physical health, the mother's mental health and the custody and access conflicts which included both the mother's and father's inappropriate behaviours at times placed these children at risk of physical harm. It did merit Society involvement to ensure both children were safe.

[39] In my view, the Society has proven that the children were at risk of physical harm. It should be noted that it is not necessary for the Society to prove intention to cause physical harm.

Summary Judgment Standard

[40] I believe the mother's counsel agreed the issue of a finding in need of protection should be dealt with in a summary manner and there was no need to proceed to a hearing of this issue.

[41] Regardless, in my view the Society has met their onus in establishing there is no genuine issue for trial. A trial would not provide greater evidence to determine this issue. The mother's mere denials are simply not enough. There should be a finding in need of protection pursuant to section 37(2)(b)(i).

Pattern of Neglect

[42] I am not convinced there has been a pattern of risk of physical harm and I am not prepared to make a finding in need of protection pursuant to section 37(2)(b)(ii).

No Further Protection Orders Required

[43] I agree with the Society there are no further protection issues and a further court order to protect these children is no longer required.

Conclusion and Recommendations

[44] I trust the mother and J.K. will come to a quick resolution of their custody and access issues with respect to H.B. which will be in their daughter's best interests. I understand the mother is agreeable to D.K. residing with his father and hopefully time will heal the mother's relationship with her son.

[45] The Society's motion for summary judgment is granted. There shall be a finding that the children, D.K. born 2000 and H.B. born 2010 are children in need of protection pursuant to section 37(2)(b)(i) of the Child and Family Services Act and an order that there be no further child protection orders with respect to the children pursuant to section 57(9) of the Child and Family Services Act.

Released: January 11, 2013

Justice Nathalie Gregson, Ontario Court of Justice