WARNING
The court hearing this matter directs that the following notice should be attached to the file:
This is a case under Part III of the Child and Family Services Act and is subject to subsections 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 . . . the 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) (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: CFO-13-10464
DATE: October 9, 2013
ONTARIO COURT OF JUSTICE
BETWEEN:
CHILDREN'S AID SOCIETY OF TORONTO, Applicant,
— AND —
J. F. and B. S., Respondents.
Before: Justice Heather L. Katarynych
Heard on: September 25 and 27, 2013
Decision released: October 9, 2013
Counsel:
- Ms. Yvonne Fiamengo for the applicant society
- Mr. William Sullivan for the respondent J.F.
- Ms. Lauren Israel for the respondent B.S.
Decision
Katarynych, J:
The Issue and its Context
The issue to be decided is the temporary care and custody of A.S. within the criteria required by s. 51 of the Ontario's Child and Family Services Act (hereinafter the "Act").
The temporary care motion is set within the society's Protection application first before the court on May 21, 2013.
In that application, the society seeks a "need of protection" finding under s. 37(2)(a) of the Act. That ground requires the society ultimately to prove on a balance of probabilities that this child suffered physical harm inflicted by the person having charge of him. The society pleads only the infliction of harm. The society also seeks a "need of protection" finding under s. 37(2)(b) of the Act. That ground requires the society ultimately to prove on a balance of probabilities that there is a risk that he is likely to suffer physical harm inflicted by the person in charge of him. The society's specific focus is on the infliction of harm aspect of both grounds.
It is common ground that the persons in charge of A.S. over the course of his entire life leading up to the society's intervention on May 15, 2013 were his mother and his father.
Also backdrop to this motion is the society's initial claim of a six month society wardship for this infant as response to any judicially found need of protection, with the society's discretion to dictate parent-child access.
Although there has been no amendment to the protection application, it is plain on the record presently before the court that the society has moved away from its wardship claim in favour of a recommendation that parenting responsibility for the child be entrusted to his grandmother.
Negotiations between the society and the parents ultimately resulted in a discharge of the child from the society's temporary foster care and his placement with grandmother under a temporary court-ordered supervision and specific conditions on the parenting, including conditions on child-parent access.
In this motion, the society seeks to continue that temporary arrangement.
The parents seek a return of their child to their care and custody with no court-ordered intervention, as permitted by s. 51(2)(a) of the Act. If the court declines that option, they seek that return under a court-ordered supervision of their parenting and whatever conditions are imposed on them by the court.
Judgment on the motion was reserved at the close of the hearing.
On "Need to Know" Features about Temporary Care Decision-making
A temporary custody motion is not the setting within which the court makes any "need of protection" finding within the legislative criteria. That adjudication awaits the protection hearing itself. Until a judicially found "need of protection" within the criteria catalogued in s. 37(2) of the Act emerges from that hearing, the child does not wear that label.
In circumstances of a joint Children's Aid Society/Police investigation undertaken according to protocols binding on both Services, it makes sense to begin with some "need to know" about the attitude to be adopted when the powers entrusted to Children's Aid Societies under the Child and Family Services Act are brought to bear on a child and family.
Among the "need to know" are the following points:
By operation of child protection law, once a Protection case is underway, neither the Children's Aid Society nor the court may ignore the requirements of the Child and Family Services Act that the child's temporary care and custody be stipulated by court order. In that regard, the court must address the temporary care issue at each adjournment of the application, and select from the options given in s. 51, the order that is proportionate to the child's needs.
So it is that a child protection case is not put "on hold" because a criminal prosecution is either underway or on the horizon, even if that prosecution arises from the same circumstances that have formed the basis for the society's reach to the court through its protection application.
There are two essential reasons for that:
It is fundamental law in our free and democratic society that every person accused of wrongdoing, whether before the criminal or before the child protection sittings of this court, is clothed with the presumption of innocence. That presumption is displaced only if the accuser proves the alleged wrongdoing to the standard required by the proceeding.
It is also fundamental law in our land that a pending or active prosecution is not licence for others to leap to assumption that "innocent" people talk and that "guilty" persons do not.
When what is sought is temporary decision-making for a child alleged to be in "need of protection" within the meaning of the legislation, very specific criteria govern the approach to be taken. I address that shortly.
Child protection investigators receiving report of injury suspected to be child abuse must take care that, in examining the basis for the report, they do not leap to belief about either the injuries or what caused them.
It is not the task of the parent to prove that they did not cause the injury, and the investigators must be vigilant that they do not, by their words, attitudes or conduct, convey the message that the parent does bear that burden.
It is the society that has the task of grounding the reasonableness of its belief within the statute's criteria.
Intrusion into a family's life, within the scheme of Part III of the Act, begins with suspicion about a child's need for protective intervention and the grounds advanced for that suspicion. See CFSA s. 72.
That suspicion is what gets investigated by the society. Whether that suspicion rises to reasonable grounds for belief about "risk of harm" and "adequate protection" issues within the meaning of the legislation (see CFSA s. 52(3)), depends on what the investigation has yielded in relation to the whole of the child's circumstances.
It is legislative recognition that separation of child and parent and accusations about the child's parenting are serious business for the child and the parent.
The duty to keep the level of protective intervention proportionate to the need for it is fundamental within this legislation. So it is that there can be no room for calcification in decision-making at any stage of the proceeding.
From Children's Aid Society of Toronto and A.M. and S.T., 2002:
Since the coming into force of the Child and Family Services Amendment Act (Child Welfare Reform), 1999, S.O. 1999, c. 2, on 31 March 2000, continuing separation of parent and child pending adjudication of a protection application is permitted only if the court is satisfied that there are reasonable grounds to believe:
(1) that there is a risk that the child is likely to suffer harm, and
(2) that the child cannot be protected adequately by an order returning the child to the parent's custody with or without an interim order for society supervision of the child's care.
See subsection 51(3) of the Child and Family Services Act, R.S.O. 1990, c. C-11, as amended by S.O. 1999, c. 2.
It is the task of the society to file an evidentiary case sufficient to meet those criteria. It rests squarely on the society's shoulders to justify the intervention that it seeks in the motion. It is not the task of either parent to prove that this child is not in need of an interim protective intervention.
[The] adjudication of a child's interim need for protective intervention is pivotal decision-making for both the child and the parent. It shapes the life of the family in ways that sometimes cannot be undone...., a threat to the security of the parent-and-child relationship and a state action that can have a profound effect on the lives of both the parent and the child. See Winnipeg Child and Family Services v. K.L.W., 2000 SCC 48; Richard B. and Beena B. v. Children's Aid Society of Metropolitan Toronto; and New Brunswick (Minister of Health and Community Services) v. J.G..
Interim custody is a decision intended by the legislature to have a brief life and, if the statutory timelines are respected, it will have that.
Viewed in the context of the legislative scheme for child protection, this motion is decision-making taken only to ascertain whether intervention at issue is justified and, if so, what is needed to protect the child adequately pending hearing of the merits of the society's protection application.
It has all the vulnerabilities of any motion adjudication. The evidence has not been tested for its reliability by cross-examinations. It does not represent the whole of the evidence that would be available in a trial.
It also has a vulnerability peculiar to child welfare work. There is an appearance of unfairness to the family from the moment the case arrives in the courtroom. Depending on the circumstances of the case, the workload of society staff and the availability of those within the society's hierarchy who are the "sober second look" at the decisions of the front-line investigators, the society's evidentiary case may have been prepared with more haste than anyone could afford to have happen. The parents have usually received the society's case so late in the day that they are left scrambling to respond within the timelines required by the law for adjudications of the case alleged against them. The scramble leaves both parties at risk of losing sight of what is and is not in issue in this motion.
On a plain read of subsection 51(3) of the Act, this particular adjudication is about the reasonableness of the society's belief about risk. That makes sense. More often than not, all that there is at this early stage in the case is belief. It is also about beliefs about risk that do not and cannot stand still if the society is faithful to its obligation to reassess its beliefs as further information becomes available in the investigation. Whether there are reasonable grounds to believe that the child is in need of protective services is an ever-evolving question.
(For fuller discussion, see Children's Aid Society of Halifax v. T.J.D., (1999), 47 R.F.L. (4th) 293, per Justice R. James Williams at page 295 [R.F.L.])
The society's evidentiary case reflects what the investigation has yielded to that point in time. The society's initial "call" on the nature and extent of the risk may change once the findings of the completed investigation are brought to bear on the society's assessment. What appears to be credible and trustworthy information at an early stage in the investigation may be found, on closer scrutiny, to be speculation, innuendo, conjecture or simply mean-spirited gossip. The society's belief about risk may be altered by the shift from the society's intake to ongoing family service. Depending on the comparative experience and expertise of the social work staff, the receiving social worker may assess the case differently.
What is really evaluated in this interim motion is the degree to which the society has kept pace with its investigation, informed its beliefs by the ever-expanding information available to it and measured its belief against the criteria established by subsection 51(3) of the Act.
The motions judge also bears in mind that child welfare reform did not dismantle the proportionality element mandated for this interim decision-making. The core value of the reformed statute is not a wholesale removal of children from their families. Continued separation of parent and child retains its position at the height of the hierarchy of increasingly more intrusive choices under subsection 51(3) — a microcosm of the larger hierarchical scheme for protective intervention that is itself a continuum of ever more intrusive options for a child's protection. The interim protection imposed must be proportionate to the need shown by the evidence. Child welfare reform lowered the bar for society intervention. It did not drop that bar to the floor. A reasonable ground to believe that there is a risk that the child is likely to suffer harm in a parent's care differs qualitatively from a reasonable ground to believe that there is a risk that a child "might" or "may possibly" suffer harm in that person's care.
That law is backdrop to the findings now set out.
ANALYSIS AND FINDINGS
Context
I begin with some context drawn from what, on the whole of the evidence, emerged as trustworthy evidence deserving of the following findings:
A.S. was born in 2012.
He had been discharged from the hospital of his birth directly into the care of his parents when he was several weeks old, and until the society's removal of him into foster care, parenting by his mother and father was his norm.
In the months leading up to May 15, 2013, his experience was the active involvement of both of his parents in his care, but in unequal degrees. His mother was his primary care giver. His father was her backup. Father's primary role was income earner for the family.
His experience was extended family and close friends of his parents interested in and involved in varying degrees with him, including the paternal grandmother now caring for him on a temporary basis under court order.
He was also experiencing an array of medical challenges and an array of speciality services to deal with his medical fragility, all of which were centred either at the Hospital for Sick Children (hereinafter HSC) or in his community.
On May 15, 2013, life as he knew it altered.
His parents had brought him to HSC Emergency as the result of two episodes of bleeding mouth in February 2013 and then again for the same problem in the early hours of May 15, 2013.
He never went home with his parents that day. He left the hospital in the arms of a child protection social worker, destined for placement in this society's foster care. The SCAN unit of the Hospital for Sick Children, in compliance with professional duty to contact the child protection authority as set out in s. 72 of the Act, had telephoned the society with its "suspected child abuse" suspicions. That report triggered a joint police/CAS investigation of the report of risk to him in his parents' care.
The society had declined a plan proposed by the family at the hospital that day that would have had him parented by his grandmother and aunt while awaiting completion of the society's investigation, essentially because the society would not trust these women with the child. Neither aunt nor grandmother could imagine in their wildest dreams that either parent could or would harm this, their only child and, in light of the SCAN suspicion about cause of the injuries, that particular perception of the parents was a problem for the society.
Some weeks later, he was discharged from society foster care to the care of this same grandmother, even though there had been no alteration to her perception of the parents.
The child, now about to celebrate his first birthday, has resided there ever since, with access to his parents under conditions agreed upon at the time of his placement with her.
ON THE FIRST PRONG OF THE LEGAL TEST
The evidentiary record yielded the following findings on the issue of "risk of harm" addressed by s. 51(3) of the CFSA:
First, the context for the parents' reach to HSC Emergency on May 15, 2013
The parents and child had arrived at HSC Emergency at about 2:30 a.m. (SCAN in the SCAN acronym stands for "Suspected Child Abuse and Neglect.") The SCAN report indicates that A.S. arrived in Emergency Room at 2:38 a.m.
The parents reportedly told medical staff that father had been attending to the child the previous evening at about 11:30 p.m. while the mother was sleeping. He was about to change the infant's diaper. A.S. was crying. Father picked him up and held him, walked about with him, rubbing his back and attempting to soothe him. When that failed, he laid him down on the bed. A.S. rolled onto his stomach, put his hand to his mouth and cried louder. When father picked him up again he saw drops of blood on the bed. He gave the child a soother, took him back into the nursery to the change table and saw blood on the soother, on the baby's clothing and on his own clothing. Mother then reportedly arrived on the scene. She picked up A.S., calmed him, gave him a bottle and then returned him to his bed with the soother. By now, the bleeding had subsided. The parents then kept track of the baby through their video monitor. Mother then noticed him stirring at about 1:30 a.m., went to him, saw blood on the bedding and on his clothes and blood pooled in his mouth. The parents then changed his clothing and set off for the Hospital for Sick Children.
The Emergency triage nurse documented that the father was reported to have been playing with A.S. that evening. It was noted that A.S. turned on to his tummy and put his hands in his mouth. His father then noticed bleeding from the mouth.
The Emergency physician documented "a review of A.S.'s past medical history". Recorded is the information to him that blood came out of A.S.'s mouth after he put his hands in his mouth at 23:30 that night. The bleeding then stopped. A.S. went back to bed and was found at 1:30 the next morning with blood on his sheets. This was described as a thick stream of blood.
On the Nature and Extent of the Injuries
The fact of injury is not in dispute.
It is important to be clear about what these injuries were – and were not.
The physician's examination of the infant on May 15, 2013 recorded at 5:45 a.m. that day that he had a 5mm deep laceration to the lip at the base of the upper lip frenulum (tissue that connects the inside of the lip to the gums). There was no active bleeding.
Although the main concern was recorded as a laceration, also reported was some "bruising" on his gums.
Skeletal survey of the infant revealed a "minimally displaced" fracture of the posterior end of the left fifth rib (back rib near the spine) and "abnormal lower border of the posterior end of the left sixth rib which was of uncertain significance."
The Emergency physician had reportedly noticed marks on A.S.'s arms, "thought to be bruising or red skin".
The child's initial heart rate was 100, his respiratory rate was 40 and his temperature was 36.8 (normal).
His anterior fontanel (soft spot on the top of the head) was "open and flat (normal)". He had "dry skin on his arms and back". There were "no bruises or petechiae (bleeding under the skin from damaged blood vessels)".
Specific to the Rib Fracture
The most direct and "hands on" evidence in relation to the rib injury is contained in the HSC diagnostic imaging consultation report completed by Dr. Govind Chavran on May 15, 2013 on referral from the Emergency Medicine physician Maala Bhatt.
Dr. Chavran, reading the skeletal survey, characterized this rib fracture as the scan report recites, as "a minimally displaced fracture of the posterior end of left fifth rib". Dr. Chavran describes the condition of the sixth rib as "subtle opacity on the inferior aspect of posterior end of the left sixth rib", and continues "it is not clear whether this represents fracture or not."
Allowing for obscuring of the child's right hand bones by intravenous line associated dressing and tubes, "no other obvious fracture or dislocation is seen in the skeleton'. Bone density is normal. Bones show normal modelling".
Documented on May 15, 2013 was observation that A.S. was sleeping but easily arousable. The examination report described him "happy, smiling and well appearing".
Also documented in the HSC report was indicated from the parents to the medical staff that the child "is not as comfortable around his father, that he sometimes sticks his hand in his mouth and scratches, and that he had been to HSC on two prior occasions with blood in the mouth".
None of the injuries discovered on May 15, 2013 resulted in an admission of this child to hospital.
As it appears on the medical evidence, none of the injuries required any specific medical treatment.
Description of injury and what treatment was needed for the injury are relevant factors in any assessment of risk. Descriptors are essential context in any conversation about the nature and extent of injury. What apart from the injury was revealed in the medical examination is deserving of consideration. So it is that what was found, and also what was not found is brought into consideration when the issue is reasonably grounded belief about risk of harm in a parent's care.
That is attitude important to a fair, because reasonably grounded, belief about significance to be attached to certain historical information provided by the parents that day.
Specific to the Two Episodes of Mouth Bleeding in February 2013
Dr. Kumar had expressed concern to the Society Intake Worker that this was the 3rd time that these parents had brought their son to HSC with a bleeding mouth problem.
Not in dispute at the time of this motion hearing are the following facts pertinent to the earlier episodes of bleeding mouth:
The attendance at HSC on May 15, 2013 was indeed the third time that a bleeding mouth problem had prompted these parents to bring their infant to that hospital for investigation and medical attention.
There had been two such episodes in February 2013. On each occasion, the parents took him to HSC Emergency. On each occasion, after medical examination of him, parents were sent home with him, armed with same day Discharge directions. In the Emergency visit of February 3, 2013, the time spent with parents and child was less than 2 hours. In the Emergency visit of February 10, 2013, the time spent with parents and child that evening was less than four hours.
The SCAN report outlines what unfolded on February 3, 2013, as the SCAN physician understood it.
A.S. had arrived in HSC Emergency at 10:49 that morning. The reason for the visit was documented as haemoptysis (coughing up blood). The triage nurse noted that he had woken up with a streak of blood in his drool. His father had begun to clean his lip and noticed some more blood in his mouth. He was noted to have been drawing in his abdomen and grunting (displaying effort in breathing). This was reported to be normal for A.S. according to his mother.
He had a heart rate of 126, respiratory rate of 34 and temperature 37.7 degrees Celsius (all normal) at the time of the medical examination.
The physician assessment, documented at 11:30 a.m. that day reviewed A.S.'s past medical history and "a current concern of blood in saliva". It was documented that "A.S.'s father had noticed fresh blood in A.S.'s saliva that morning with no history of trauma, bleeding elsewhere, coughing blood or vomiting blood. There was occasional regurgitation, as was usual for A.S."
In this examination, a physician noted a 2cm long linear bruise on A.S.'s right temple. Parents had reportedly told medical staff that they thought that it had occurred when the then four month old knocked into his father's glasses while being carried. No other bruising was noted.
No bleeding from the nose or mouth was noted. His heart, lung and abdominal exams were generally normal. Discharge instructions documented that the impression was of bleeding in the mouth and A.S.'s parents were to monitor for recurrence and return to medical care as needed.
The Discharge Information reports of Paediatric Emergency Medicine on both dates attached to the mother's initial affidavit filed May 21, 2013, in the first court appearance in this case, provide more specific detail about what was and was not found that day, and then in the further attendance at HSC Emergency on February 10, 2013.
The diagnosis of Dr. Marie-Pier Desjardin on February 3, 2013 was "mucosal bleeding from mouth (resolved). These were the discharge instructions:
"Follow up with your regular doctor in 2-3 days time or earlier if required. Please return to the emergency if bleeding from anywhere or fever, lethagy (sic) faster breathing".
The diagnosis of Dr. Jonathan Pirie made in the Emergency visit of February 10, 2013 was "blood in mouth". Whereas the report of February 3, 2013 had recorded nothing under the section "Summary of Emergency Care", the report of February 10, 2013 cites: "Investigations Completed: Bloodwork".
These were the discharge instructions:
"Please follow up with A.S.'s regular doctor this week. He may require additional treatments for reflux, including possibly a proton pump inhibitor and/or domperidone (check with your cardiologist first). Please contact A.S.'s GI team with the recent blood results".
Those same day discharges of the child to his parents are important context for Dr. Kumar's concern that May 15, 2013 was the third time that this child had been brought to the hospital for the same problem.
Worthy of consideration in the formulation of reasonably grounded belief about the "risk of harm" is that on neither occasion in February 2013 was the child kept in hospital for observation or further investigations.
Also worthy of consideration is that on neither occasion was any contact made with either the child protection agency or the Hospital for Sick Children's SCAN unit.
I took into account in this regard the criticism voiced in the SCAN physician in her report that HSC Emergency Medicine did not refer the child to SCAN earlier for investigation.
On the evidence before this court in relation to those two earlier visits, particularly when the history of the child's medical fragility as it had been documented prior to SCAN's first sight of this child and his parents is brought into the May 15, 2013 "picture", there was no reason to send the child and parents into the SCAN unit as a "suspected child abuse" situation.
What lifts from the evidence relevant to the two Emergency visits in February 2013, quite apart from the evidence of the parents themselves, is a picture of two parents who noticed bleeding from their child's mouth, and concerned about it, took themselves and the child to the Hospital for Sick Children Emergency. On each occasion, they handed the child over to the Emergency duty physician for whatever examinations or interventions were desired by that physician. After the physician had completed his work with the child, they left the hospital with Discharge instructions, which they then implemented for the baby.
It made common sense that they would choose HSC Emergency as their destination. On the evidence in this motion, this infant already had a hefty outpatient record there, compiled in the course of documenting the course of his development through the eyes of various specialty departments within that hospital.
Specific to the Concern about Force-feeding and Feeding Stressors
Dr. Kumar's concern about force-feeding of the infant emanated from a discussion with the mother in which mother had reportedly admitted that "in the past she had held [the baby's] hands down and force fed him".
As Dr. Kumar understood it, and not in dispute is the fact that this infant had "reflux issues" that resulted in difficulty in feeding and weight gain problems, irritability, vomiting and resistance to feeding. Although a Public Health nurse, Occupational therapist and medication support were in place for the infant, from Dr. Kumar's perspective, "there was still a lot of stress around feeding and weight gain for the child."
Included in the various medication challenges in this infant's life was indeed what is medically described as "severe gastro reflux issues". It is not in dispute that this infant, from the beginning of his life, was difficult to feed, nor is it in dispute that he had weight gain issues.
The reported acknowledgment of the mother that she had "held [the baby's] hands down and force fed" him, absent inclusion of context for the mother's information on this issue, invites distortion of both what she said and what she did.
That context includes the information that as part of the supports provided to them for this child to deal with the various medical challenges in his first months of life, mother and father were following directions provided to them about his feeding from those professionals involved with his nutrition. Pivotal in that regard was careful attention to the adequacy of his intake. There was a time when good medical and parental management of his nutrition did not permit this infant's feedings to be done by reading his "cues", or to allow his resistance to dictate the actions of the adults responsible for his wellbeing.
The SCAN report itself cites the mother's concentration on trying to feed in response more to the baby's cues, once there was ability to do that. That ability emerged with further advance in his development and with a change to certain medication prescribed for him.
ON THE ISSUE OF "CAUSE" OF THE INJURIES
What is chosen by the investigators to fuel beliefs about the cause of injury matters in a child protection investigation. The choice can either inform belief or distort it.
There is no direct evidence of the cause of any injury identified as a "risk of harm" concern for this child.
The SCAN doctor had concluded that the laceration in the frenulum and some inner lip bruising "are a result of traumatic injury", "caused by a significant external application of force" and that the injury was not likely self-inflicted". Also opined to be "traumatic injury" was the left posterior 5th rib fracture and the possible 6th rib fracture; - "the constellation of injuries" documented leading her to the conclusion that this is "highly suspicious for inflicted injury".
In opining her suspicion of inflicted injury, the SCAN doctor does not point a finger at either parent. The contact made with the society on May 15, 2013, however, invites the inference that suspicion focused on the parents.
The parents' failure to provide explanation has been a problem for both SCAN and the society.
The society has latched itself to the SCAN stance as the pivot in its own belief about the risk of harm to this child in the care of his parents.
That is not an inappropriate attitude to adopt, if, at the close of the investigations, the whole of the information gleaned in the investigation considered to be credible and trustworthy yields reasonable ground to believe that there is risk of likely harm in the parents care.
Belief about risk of harm to be reasonably grounded, takes into account not just the injuries, and whether they are "explained" by the parents, but an array of other factors, the most prominent of which were reflected in the considerations now set out.
Timing matters
Too precipitous a leap to belief about the parents as cause can then lead to attitude that focuses on a defence of that belief, rather than openness of mind required in an investigation of someone's suspicion about risk.
Opinion about the causes of injury and the people thought to have caused injury, whether voiced by SCAN or anyone else, depends for value on what information fuelled it.
On whether there was a reasonable latching to the SCAN opinion in this case the evidence found credible and trustworthy yielded the following:
There is no direct evidence of the cause of either the bleeding in the mouth or the fracture of his 5th rib.
Although the injuries speak for themselves in relation to nature and extent of injury, they do not in themselves provide reasonable grounded belief about cause.
The parents provide no explanation for the injuries identified on May 15, 2013 because, on their evidence, that they do not know the cause of the injuries to their baby identified by the medical examination of him on May 15, 2013.
The belief of the society is that the parents are hiding something. The society points to the mother's failure to provide her own evidence in relation to the January 2013 incident, choosing instead to adopt the evidence of the father in that regard. I took that into account. In the end there was no justification on the whole of the evidence of this infant's course of life before May 15, 2013, to dismiss their evidence as 'incredible'.
These parents were never purporting to offer "explanation" of the injury.
They were trying to be helpful, to those attempting to determine cause of the injuries and went the route one would reasonably expect in the circumstances attempt to reconstruct the previous seven months of their parenting of their infant, in search of something in their handling of their baby that might have resulted in harm. It was the father himself, for example, who offered the possibility that the rib fracture might have been a result of his application of force to this child's chest in January 2013 to try to reactivate his son's breathing. That their possibilities did not satisfactorily explain the injuries from a medical perspective does not warrant a leap to either of them as the "must be" cause.
It is not sufficient to rest in the medical rejection of the "possibilities" voiced by the parents as reason to believe that the parents are "hiding" something.
To reject the "possibilities" advanced by the parents as medically improbable "explanation" in one thing. To have the child protection agency leap to assumption that these parents must then be "hiding something", is frankly reckless.
Before this court to "explain" the injuries, regardless of the source of the "explanation", are a number of "possibilities", none of which invite relief that either of these parents 'inflicted' physical harm within the meaning of the statute.
Reach to circumstantial evidence for the drawing of inferences requires a close examination of what is – and is not – evidence suitable for the inference-drawing.
Speculation, conjecture, the floating of possibilities and at times, frank innuendo about the actions and "triggers for action" animating a parent are proof only of speculation, conjecture, the floating of possibilities and frank innuendo. They shed no helpful light on belief about the cause of injury. The too early latching to an opinion that itself had caution wrapped around it by its author, actually resulted in a paralysis in thinking about what was reasonably shedding light on whether the doctor's "high suspicion" was consistent with what the investigation as a whole was yielding about "risk of harm."
The evidence as a whole pertinent to the SCAN doctor's "high suspicion" yielded the following:
The SCAN doctor herself made plain at the end of her report that her conclusions were based on information available to her at the time of writing. The report is dated June 18, 2013.
What was not available to the doctor at that time, and she noted at the beginning of her report, were the child's birth records, paramedic records from January 13, 2013 and "other available medical records". She noted that she had requested opportunity to review that additional material, and provided her reason: "these records may be helpful in further informing my opinion".
In short, important context for her opinion is that she did not have all the information that would have liked as a basis for opinion-drawing.
She also made plain that if further information becomes available, there should be no hesitation in contacting her. Again she provided her reason: it "may further form my opinion".
I read her report as clear message that her opinion was a work in progress, tied to what she had before her at the time that she prepared her report and that she was inviting further consultation.
More than three months have passed. It is unclear on the evidence before this court whether any further consultation with SCAN was sought or given, in the course of the society's investigation of the whole of the child's circumstances.
Too quick a latching to a particular opinion can also shut down incentive to reach beyond it for information relevant to the issue of "cause" of injury.
I wondered, for example, pertinent to the episodes of bleeding mouth, why there had been no reach to paediatric dentistry consultation to better inform the investigation about the quality of the gums and mouth tissue of a baby with this infant's already documented medical fragility during February 2013 and again in May 2013 when this episodic bleeding was an issue for this infant; - the course of development of this infants' gum and mouth tissue, the extent, if at all, to which the various pharmacological supports and the specific concentration of formula that were part of his life, are known to present risk of bleeding in a child this young and medically fragile, the extent to which the ordinary process of first teething might have underway for him between February and May 2013.
As a matter of human experience, bleeding mouth can happen when the mouth and gum tissue is particularly fragile. This child was fragile in all sorts of ways. Nothing in the evidence pertinent to his overall medical fragility and the various interventions, invites reasonable inference that his mouth was exempt.
Would it have "explained" the mouth injury? No. I am not suggesting that a paediatric dentist could have commented on the quality of this infant's mouth health at the time of these bleeding episodes. She had not seen the child at that time. I am suggesting that such consultation might have given pause for thought about the too quick pointing of a finger at either parent as a risk to this child.
One also cannot too precipitously rule out the baby himself or others handling him as inadvertent instigator of the bleeding episodes.
This infant was prone to put his hands into his mouth. No expert evidence is needed for the proposition that such conduct is quite ordinary in babies, that what goes into the mouth may well be the infant's fist, and for all sorts of reasons. If this child was shoving his fist in his mouth and then crying, would it not make sense to ascertain whether sore mouth was the most obvious explanation for the crying?
Many hands, apart from those of his parents, were on this child in his early months of life, - professional hands, the hands of community service providers, the hands of extended family and friends.
He was a fragile child. The medical evidence is plain in that regard. Any one of those handlers might inadvertently injured him in that handling.
Others were also putting things in his mouth. Plain on the evidence in this motion is that soothers and bottle feeding were part and parcel of this infant's life in his parents' care. The parents or any other person handling the infant might well have inadvertently injured the mouth area if they were injecting either soother or bottle into a mouth already prone to soreness.
The society pointed out that the bleeding mouth problem has not occurred in the care of the grandmother. I paid attention to that.
If the submission was invitation to find that the absence of episodes of mouth bleeding in the grandmother's care ought to reinforce concern that something had been awry in the parents' handling of the child, it was not inference that could be properly drawn on the whole of the evidence before me.
Just as valid an "explanation" for the grandmother's experience is that the child's bleeding mouth issue resolved on its own as he matured in his development. I noted that a number of medical problems for this child have resolved or were on the way to resolution in the spring of 2013.
The history of this child with his paediatrician
The history of this child with his paediatrician is a consideration in the formulation of belief about "risk".
Dr. Preeti Jain had had this child in her paediatric care since December 2012.
Her first letter, supplied in the wake of the society's removal of the child from the parents and dated May 17, 2013, is addressed "To Whom it may Concern".
She writes that "mother has consistently brought A.S. to my office for well baby care appointments and issues and has also taken him to appointments at HSC, since he has been involved with multiple specialties, including Endocrinology, Gastroenterology, Occupational Therapy, CCAC and Cardiology.
She provides a brief outline of the baby's medical history and specifically sets out what he needs "at the current time": - feeding evaluation with Occupational Therapy, Endocrine follow up in relation to glucose levels. She named the specific hypoallergenic formula that was part and parcel of the infant's nutrition in his parents' care. She made plain that he needed monitoring for his weight gain, growth and development and also required follow-up appointments at the Hospital for Sick Children as arranged by the family. Particularly significant to this motion decision-making is this paediatrician's closing: "If you have any questions or concerns, please do not hesitate to call".
The second letter is dated September 11, 2013. It states that over the course of the 16 well baby visits that she had had since December 7, 2012, she did not notice any obvious injuries or bruising of concern.
In assessing the reasonableness of belief about risk of harm to this child, also to be considered is how his life had been unfolding up to the time of his presentation at HSC on May 15, 2013.
In the bone health clinic report Dr. Inman writes "we cannot comment of the quality of A.S.'s bone health at the time of his fracture". That inability to comment does not snuff his opinion that low birth weight and prematurity are both risk factors for suboptimal bone health and predisposition to fracture.
Dr. Inman also referenced the "story" in mid January 2013 that could have resulted in trauma to the chest of A.S. in the form of chest compressions, and acknowledges that "this could be a plausible mechanism for fracture," while acknowledging quite sensibly, that we cannot comment on the correlation between the rib fracture(s) identified in A.S. and the mechanism that was explained to us." I would not expect comment in circumstances where the time of the injury could not be ascertained.
Specific to the Father
Lurking in this motion at times in relation to the January 2013 physical handling of the child was a sense that the incident had not unfolded as described by the father. Although it is tempting to "go there ", it is also a tentacle of the sort of attitude that presumes incredulity when there is no factual basis for that attitude.
That lurking is particularly alive in relation to the attempt by father to shed light on the rib fracture injury discovered in the May 15, 2013 medical examination by reaching back in time to January 2013 and his attempts to respond to his then three month old son's breathing problem.
On the father's account on May 15, 2013 to HSC staff and the society, A.S. had suddenly stopped breathing while in his father's arms in the course of a late night bottle-feeding. His father's attempt to restart the breathing included mouth to mouth resuscitation, chest compression and when that did not work, hard punch in the chest. The punch worked. The child began to breathe and also to cry.
In this court's knowledge of resources in our community, the father's description of his actions on the evening in January 2013 when he was suddenly faced with an infant who had stopped breathing, actually reflects the teaching provided to parents of young children by public health and other resources to educate parents on proper respond in emergency circumstances to a child whose airway appears to be blocked.
Father admits that he had had no such infant specific CPR training. On the whole of the evidence pertinent to that night, he applied to this child what he knew about adult CPR. It made common sense that he would reach to whatever skill he had to respond to the child's emergency as an alternative to doing nothing to try to revive a child who appeared him to be dying.
On the Parent's Concern about the Child's "Rejection" of his Father
This sense of "rejection" flows from the mouth of the parents, in their view A.S. had been reticent about his father's holding of him after the January 2013 episode.
They had been working on the nurturing of the child' bonding with his father. They noticed that he was so much easier soothed by his mother. The father himself attests that he withdrew from the infant somewhat until the baby appeared more open to him. Whether the infant in the throes of breathing distress and not breathing at the time of the compressions and punch in the chest that night is an unknown connected his father to the blows.
On the whole of the evidence, there was nothing sinister about the child's preference for his mother. She was his primary parent. There was much more time in each day for them to sink roots in each other than the time available for father and son to do the same.
On the whole of the evidence emanating from this child protection investigation to date
On the whole of the evidence emanating from this child protection investigation to date, there is also this to be borne in mind on the assessment of the reasonableness of the belief about "risk of harm" to this child in his parents' care:
Also relevant is the host of eyes that had been on this child and his parents long before SCAN saw the family on May 15, 2013. Those eyes included those of the community of professionals providing services to this family, including staff of the Hospital for Sick Children itself. They included the child's paediatrician who had been in this child's life since December 2012.
There is no evidence that anyone observed any injuring of this child by either parent, either within time frames relevant to the parents' reach to the Hospital for Sick Children Emergency for medical assistance on the two occasions in February 2013 and the occasion of May 15, 2013, or at any other time in the life of this child.
The mother is described, without exception, by those in the community involved with her and the baby as a careful and caring parent.
Although the eyes of the community had less opportunity to observe the father, Hospital for Sick Children Emergency staff did, on each occasion when this child brought to hospital by the parents. There is not a scintilla of evidence, apart from what has emerged from his own mouth, about physical handling of the infant that might have resulted in injury.
Also relevant to a reasoned belief of a risk of harm is what the investigation did not yield.
This family is a stranger to Children's Aid Societies and to child protection intervention.
They are a couple in their 30's who have been together for over a decade.
The society's investigation of them has yielded no evidence of drug or alcohol abuse by either parent.
The society's investigation has yielded no evidence that either parent has any criminal history.
The society's investigation has yielded no evidence that either parent has any history of assaultive behaviour either towards each other or towards anyone else.
The society's investigation has yielded no evidence that either parent's cognitive functioning is compromised.
The society's investigation has yielded no evidence of mental health malfunctioning in either parent.
In this regard, when in the judicial conferencing that immediately preceded the scheduling of this motion, the society articulated its desire to explore the mother's mental health as part of its investigation, it was the mother herself who presented herself, via her family physician, to a psychiatrist for examination of her mental health. She was given a clean bill of health in that regard and the report is part of the motion record.
Isolation of a parent from the community is not an issue in this case. There has been no hiding of this child from view. The mother herself established a strong network of supports for the infant within their community long before the society intervened in their family life. The child has had in-home services for a good proportion of his life to guide and assist in his development, and the reports in evidence provide strong endorsement of both her parenting commitment and her skill.
Housing is not an issue in this case. They are responsibly housed in an area of the city that gives reasonable access to resources needed by this child.
Financial ability to manage this child's needs is not an issue in this case. As between the two parents, the father has taken hold of the income earning for the family.
Provision of health care is not an issue in this case. The parents have had in place from the earliest weeks of his life, all the services required by this child to monitor and support his growth and development, and a paediatrician who has been following the child in her medical practice since December 2012.
The motivation and tenacity to parent this child is not an issue in this case.
They have shown themselves able over the course of this infant's life to date to provide all necessary supplies for their baby. They have shown themselves able to fund transportation for themselves and their baby. They have a car and a car seat for the baby, and use it. But for the incident in January 2013 that I address elsewhere in these reasons, they have sought medical attention responsibly.
They have displayed impressive ability to manage the plethora of direction given to them by the various specialists involved in the course of this child's life to date.
The ability to set aside their own needs is not an issue in this case.
Until advised by counsel otherwise, both parents were primary sources of the very information that is now advanced as reason to mistrust their care.
Even with police and society investigation bearing down on the family, the mother's course of action remained, as it had been for the whole of this child's life, thoroughly child-centred. She had moved quickly to provide to the society, the information needed by the society's foster parent to manage A.S.'s health care issues. That included a letter from the child's paediatrician that included an invitation to provide additional information, if needed.
What lifted from the evidentiary record as a whole
What lifted from the evidentiary record as a whole was this:
The SCAN opinion had loomed so large in the society's own belief about "risk of harm" that it ultimately suffocated credible and trustworthy evidence flowing from the society's own investigation, - other considerations on the issue of "risk of harm" that should have been kept alive. SCAN had put forth reasonable grounds for its suspicions.
The society's belief cannot rest in suspicion floated about parents. That is why the legislators stipulated the requirement that the society's belief about "risk of harm" be informed and then grounded in the yield of the whole investigation into the child's circumstances in his parents' care.
Also important to keep in mind is that a motion seeking temporary care orders is not a stand-alone proceeding. It sits within the context of the child protection application launched in relation to the child.
The legislators have taken care to make plain in the wording chosen for the "need of protection" grounds in s. 37(2)(a) and (b) of the Act that not all physical harm suffered by a child a "need for protection" type of injury. That needs to be kept in mind throughout the investigation of suspected child abuse.
The sort of physical harm that is targeted for child protection intervention is a physical harm that is shown on the evidence to be either inflicted by the person having charge of the child or caused by or resulting from that person's failure to adequately care for, provide for, supervise or protect the child or a pattern of neglect in that latter regard.
It can also emanate from a pattern of neglect or physical harm caused by or resulted from inadequate care, provision, supervision or protection of the child.
There was one aspect of the parents' judgment that did cause concern. I move to that now.
On Failure to have Ambulance take A.S. to Hospital in January 2013
The context here is the incident in January 2013 in which the parents declined to have EMS take the child to hospital.
I took into account that by the time the EMS team arrived, the child was breathing again and the emergency had seemingly passed. The EMS report cites the child's skin temperature normal, skin colour "normal", skin moisture "normal", full range of motion, all distal pulses present, airway clear in all fields, "unremarkable" abdomen.
That considered, father's own description to the EMS responders about what he had just encountered ought to have registered in both parents, the advisability of having the child examined in hospital.
On the account of the father first given to the EMS responders, as recorded in the Toronto Emergency Services Ambulance Call report in evidence, as he was bottle-feeding this then three month old, A.S. appeared to stop breathing, began to turn blue and his eyes turned glassy. Father's response was to give the infant mouth to mouth and then two quick chest compressions. The child then began to cry and both his colour and his responsiveness improved.
That is serious business. Certainly EMS considered it advisable to transport the infant to hospital for further investigation.
According to the report, the EMS responders offered transportation "several times" to the parents. The report then continues: "Mother decided to monitor the (child) at home and call us back if needed. She plans to call the paediatrician in the morning to follow up. She said that she was concerned about the child picking up the flu if he was taken to the hospital."
The EMS disclaimer signed by the mother that evening reads: "I have been advised that I should have treatment and that treatment is available immediately. I refuse such treatment and transportation to hospital having been informed of the risks involved. I assume full responsibility for such refusal."
Although the EMS report also states, "I have advised the patient or the party responsible for the above noted action of the risks to the patient's health that are involved", the report is silent on the particulars of the advice.
Trying to protect a medically fragile infant from exposure to flu germs abounding in a hospital setting is a valiant goal. I took into account in this regard her evidence that she had been told to be particularly careful to shield A.S. from the risk of flu.
I noted, however, that the report cites "no assessment" of the back and pelvis.
Had the parents and child gone to the hospital by ambulance that night, there would have been opportunity for fuller assessment of precisely that. A thorough check of the child at the hospital could have focused on internal injury caused by the resuscitation attempt, and also shed brighter light on whether this episode of apparent air blockage was part and parcel of the reflux problem that was part and parcel of A.S.'s life at the time, or something different needing attention.
In hindsight – and we are all wiser in hindsight – it was a poor decision to decline that opportunity for follow-up.
The need to speculate of months later about the fractured rib identified on May 15, 2013 perhaps having its genesis in this resuscitation attempt of the parents, could have been avoided.
This poor judgment was bound to fuel suspicion that the parents were declining hospital attention to the child in order to hide something.
That said, the fact that the injuries are "not explained" is not in itself justification for a stance that explanation rests solely within these parents.
The various "opinions" about cause of these injuries, whether emanating from SCAN, other physicians involved in the investigation, the society investigators, the parents, or indeed the court itself in its musings, when set within the whole of the evidentiary record get caught in a significant "disconnect"; - the absence of trustworthy factual evidence, in the name of a reasonable grounding of belief about cause to link the cause of the injuries to either of the parents. The finger-pointing at them ended up in conjecture and speculation.
On this evidentiary record, there are reasonable grounds to believe that there is no one single explanation for these injuries, and that the precise cause of these injuries may never be known, not because the parents are "hiding" anything, but because it is the nature of life that not everything can be "explained".
So it was that the evidentiary record as a whole fell short of establishing reasonable grounds for belief that this child is likely at risk of harm in the care of his parents.
ON THE SECOND PRONG OF THE LEGAL TEST
The focus of the scrutiny here is the search for credible and trustworthy evidence establishing reasonable grounds to believe that the child cannot be protected adequately by an order returning the child to the care and custody of either or both of these parents with the support and monitoring of that parenting through a court-ordered supervision, with or without specific conditions to govern that parenting.
From the society's perspective, this court cannot construct an adequate protection for this child in the care of his parents, even with conditions on his parenting, unless it first has reasonable explanation of the cause of the injuries.
From Mr. Sullivan's perspective, the court's acceptance of that proposition puts his clients in an impossible position. The logical extension of the proposition is that, absent acceptable explanation from the mouth of one or other parent, there is no route home for this child.
It is his point that, except in circumstances where injuries speak for themselves (the "res ipse loquitur" case), - and this is not one of them in his view of the evidence, - the society's investigators cannot close their ears to the parents' assertions that they do not know what was causing the bleeding problem in the baby's mouth, or the fracture to the 5th rib, and simply leap to the conclusion that the parents are hiding something.
The evidence as a whole relevant to this 2nd prong of the legal test that must be met for an temporary order that keeps the child removed from his parents' care and custody of him, provides reasonable belief about the following:
Offering "possibilities" about what might have happened is not an offering of "explanation" of what did happen. The distinction is important to bear in mind.
I found no statement offered by either parent in relation to the injuries properly characterized as "explanation". On my read of the whole of the evidence pertinent to their statements, there is reason to believe that they themselves, in a spirit of cooperation initially with medical staff and then with the child protection investigators, were trying to do their part to find cause for the injuries, reaching back in time to their parenting of their infant and examining, with the benefit of hindsight, whether anything in their own interaction with their baby might have resulted in harm.
They have consistently stated that they do not know what caused either injury.
I found nothing credible or trustworthy in the evidence as a whole to characterize that assertion, cast in sworn evidence, as misrepresentation of reality.
On an evidentiary record that falls far short of establishing the reasonableness of a belief that the child's injuries speak for themselves, I found no justification for dismissing as incredible or unworthy of trust, the sworn evidence of these parents that they have never intentionally harmed their son, never lost their temper with each other or with A.S. over the course of this infant's life, never used any physical discipline and have no intention to ever manage their son though physical disciplining.
There is also credible and trustworthy evidence deserving of the following findings:
This is not a situation where the parents have done nothing since May 15, 2013 to try to gain the trust of the society in them as individuals and as parents. These parents have worked closely and cooperatively with the society from the start of this investigation some seven months ago, and in a thoroughly child-centred fashion. Their attitude to the society, even in the face of the society's disbelief of them, has been constructive.
From the earliest weeks of their infant's life, they had been establishing a track record of working productively with those in the community who have been helping them guide this child through his various medical challenges. There is good reason to believe that they will continue to do that.
Although there are still medical challenges for this child, he has resolved a number of them over time, and now almost a year old, is not as fragile as he was in the first eight months in his life.
Dr. Mark Inman of the Bone Health Clinic pointed out in his report, for example, that a perimembranous ventricular septic defect being followed by HSC Cardiology, with the next appointment scheduled for November 2013, is not requiring ongoing medical therapy. The hyperinsulinemia that had resulted in hypoglycemia had resolved. Also resolved was the thrombocytopenia and seemingly, also the cholestasis. The doctor noted that the child had been discharged from the GI Clinic, and had only one more scheduled follow-up with Endocrinology. The proton pump inhibitor had been discontinued. In addition to a specified formula fortified with olive oil, he was starting to take some solid foods.
Important information is also now available to inform future management of him.
By August 1, 2013, the Hospital for Sick Children's Bone Health clinic had ruled out a possible underlying bone disorder predisposing the child to fracture.
In relation to the child's bone health, based on the history, blood work and physical examination of A.S., "no clear underlying bone disorder was identified." The physician did not see any evidence at that time consistent with a clinical picture of osteogenesis imperfecta, rickets or any other bony dysplasia. That is good news.
While indicating that the infant's present level did not require intervention, the Bone Health clinic expressed interest in assessing the trend of his serum calcium level, and provided some direction to the child's mother in that regard. There is good reason to believe that the parents will cooperate in that regard no differently than they have cooperated with others involved in medical monitoring of their son.
The parents' "worries" over the course of the last seven months have not been hidden from the society.
That portion of the Society worker's casenotes of June 24, 2013 titled "Parent Worries" is poignant testament to the impact of this disruption in their family life as they had known it prior to May 15, 2013.
Recorded at the top of the list is their worry that A.S. will not come home.
Recorded is their worry about the attitude taken toward them; specifically, worry that SCAN and CAS may think that they intentionally injured A.S.
Recorded is their worry that they will be "branded for the rest of their life" as a result of the SCAN and CAS stance. What lifts from the evidence relevant to that worry is the sense that they have no ability to change the attitude taken towards them by those powerful bodies.
The parents have not allowed their worries to blind them to the attention that needs to be placed on their son's needs and interests.
Recorded by the social worker is their concern about the impact on the baby and his emotional development, - the suddenness of his loss of both of them in circumstances where the parent-child bonding was going forward unimpeded by separation, their concern that A.S. will feel "abandoned", that he is "not as vocal (i.e. singing) as he was before", that the father-child bonding is particularly compromised by the separation. It provides reasonable ground to believe that there is meaningful insight about the possible impact on their son of such an abrupt loss of them to him, and that they can be counted on to do what is needed to keep a close pulse on his sense of security and wellbeing in their care on a go forward basis.
On Supports Immediately Available for this Child in his Parents' Care
There is capable and dedicated extended family support for this child in the care of his parents. His grandmother stepped forward quickly to offer her own parenting and that of other family members that would, had it been accepted, given this infant generous opportunity for his parents to be part of that parenting.
The evidence as a whole provides credible and trustworthy indication that the parenting of this child would essentially resume with the sort of community supports that these parents already had in place when the society removed the child from them.
There is also no evidence that the interest of the child's paediatrician in him has waned.
Specific to the Society's Reliance on the SCAN Report
The calibration of risk to a child is often a daunting task for a society and for the court itself. It is tempting to rest belief about risk of harm in those reputed in the community to be experts in identification of suspected child abuse.
Society counsel pointed to SCAN's recognized expertise in the assessment of suspected child abuse, and urged the court to pay careful attention to it.
On the issue of expertise itself, it is not a matter of judicial notice. In a motion going forward so long after the child's removal from his parents, belief about expertise requires a Mohan sort of analysis not provided in this case at this point.
Although the work of SCAN is well known to this court, reaching back to the leadership of Dr. Marcy Mien, the present constellation of the team is an unknown, and there was nothing to shed meaningful light on either the experience or the expertise of either the doctor who initially contacted the society or the doctor who authored the report. The author of the SCAN report signs as an "associate". In this court's understanding of the organization of hospitals, an "associate" is a physician who has hospital privileges in the named hospital, and is not full time hospital staff.
I did, however, study the report carefully.
What I could not do, on the whole of the evidentiary record in this motion, is permit the SCAN opinion to determine the court's decision-making.
It is the reality of the legislation governing decision-making of both the society and the court itself that the task of calibrating risk of harm within a child's family rests squarely on the society under this legislation and on the court as the legislative watch on the calibration. That burden cannot be loaded onto the shoulders of SCAN.
SCAN opinion is one piece of information brought to the fore in the formulation of the society's belief about risk. It cannot be the only basis for the society's belief. That is so because the society's investigative task must encompass more that SCAN opinion about injury and cause.
I point this out because the dilemma of the social worker in this case was quite plain in the portions of her notetaking filed in this motion record.
In her recording for June 24, 2013 under the title "Harm" Statement, she cites "the torn and bruised frenulum and broken rib alleged to be non-accidental".
Under her "Worry Statement (Future)" is this:
"A.S. could sustain other injuries while in his parents' care".
It is the reality of this legislation that we do not sweep into child protection court all children who get injured in a parent's care, nor do we sweep in those who, if injured, "could" sustain other injuries in their parents' care.
Children do get injured in the care of parents. Sometimes the injury is avoidable. Sometimes it is not. Sometimes it is intentional. Sometimes it is not. Sometimes it occurs in benign circumstances. Sometimes the circumstances are malignant. Sometimes the cause of an injury can be reasonably ascertained. Sometimes it remains mystery.
That a child "could" sustain other injuries while in his parents care is not justification for keeping a child and parent separated from each other. It is a stance of paralysis. This legislation does not allow either the society or the parents or the court itself to rest in paralysis.
What emerged from my study of the SCAN report, set within the entire evidentiary record, was reasonable ground to believe that the medical opinions about "cause" of these injuries are speculative as the "possible" causes advanced by the parents themselves and others who have dipped into the realm of speculation.
Speculation is speculation. It does not gain value by the voice speaking it.
It is too easy to rush to assumption that the opinion about "possibilities" voiced by the parents is incredible and the "opinion" of SCAN on cause, credible. A court cannot wade into assumption that belief that they inflicted harm to their son is "reasonably grounded" belief because others cannot come up with suitable explanation of the cause of injury to this child.
I found nothing in the complexion of this case to warrant the mistrust of these parents that has been driving both SCAN and society attitude in the investigation.
In the end, the parents had much in their case, independent of their own attestations, that had relevance – factual information, much of it not disputed by the society - that went to the heart of a properly informed belief about risk of harm to their son in their care.
CONCLUSION
Are there reasonable grounds on the whole of the evidence in this case to believe that there is a risk that this child is likely to suffer harm in the care of either parent at this time?
No.
Does A.S. need a court-ordered protection more intrusive than the temporary care order permitted by s. 51(2)(a) of the Act?
No.
There are more than enough eyes on this child and family, and a solid and child-centred parenting within the family itself to provide adequate protection for him while the family awaits the outcome of the society's protection application, and to meet the requirement of this legislation that all decision-making for children promote the individual child's best interests, protection and wellbeing. See CFSA s. 1(a).
ORDERS TODAY
For all the foregoing reasons, the society's motion claims are dismissed, and the temporary orders made for this child to date terminated in their entirety.
A.S. is to be returned to the care and custody of his parents, as permitted by s. 51(2)(a) of the Act.
Directions to Counsel
On the Valuing of the Evidence for Trustworthiness
There is multiple hearsay threaded through this motion record, and it is at times hard to decipher whether it is first, second, third or more distant hand hearsay. Such is the nature of investigations that involve a number of individuals, many of whom are medical professionals and others.
Whether what emanates from the second or third or fourth hand person conveyor of information, whether within the Hospital for Sick Children, within the community involved with this family or within the society itself, accurately represents what was originally spoken is mystery at this point, except where it is confirmed as essentially accurate conveyance.
The hearsay will need to be scrubbed before any of the motion affidavits are suitable for trial consideration.
On Scheduling of the Protection Application
The protection application, if the litigation is to continue, needs to be sent directly into the trial assignment court for adjudication. Further judicial case management consumes precious time, escalates costs and is unlikely to be productive. The passage of time since the society's removal of this child from his parents has been more than sufficient for investigation of his parents. It in fact exceeds the timeframe sought in the society's initial quest for a society wardship of this child.
On what is presently before this court in evidence acknowledged to be untested for its ultimate reliability, there is no case to be met by these parents on the claim that he qualifies for a need of protection within the scheme of this legislation.
All three counsel of record are experienced lawyers, highly respected by this court. I waive trial management meeting with them to enable any needed trial management meeting to be scheduled directly with the judge assigned to the trial.
It bears noting that in my view, both counsel did the best with what they each had in support of their respective arguments. It was lawyering in the finest traditions of the Bar.
This decision is to be released to counsel of record today.
Heather L. Katarynych Motions and Case Management Judge
Released: October 9, 2013