WARNING
The court hearing this matter directs that the following notice should be attached to the file:
This is a case under Part III of the Child and Family Services Act and is subject to subsections 45(8) of the Act. This subsection and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply with subsection 45(8), read as follows:
45.— (8) No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.
85.— (3) A person who contravenes subsection 45(8) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
Court Information
Court File No.: FO-14-000019-00 Date: 2014-04-25 Ontario Court of Justice
Between:
Kenora-Rainy River District Child and Family Services Applicant,
— AND —
J.H., L.M., R.M. and W[...] First Nation Respondents.
Before: Justice P.T. Bishop
Heard on: April 3, 14, 23, 25, 2014
Reasons for Judgment released on: April 25, 2014
Counsel:
- David J. Elliott – for the applicant society
- Kyle Ronning – for the respondents, L.M. and R.M.
- M.H. – agent for J.H.
- W[...] First Nation – not present
BISHOP J.:
Background
[1] This matter comes before me by way of a Motion within a Protection Hearing to determine the placement and the care of the child, RRH.
[2] Kenora-Rainy River District Child and Family Services (KRRDCFS) have taken carriage of this file from Anishinaabee Abinoojii Child and Family Services as the foster parents reside in Shoal Lake in the territorial jurisdiction of Kenora-Rainy River District Child and Family Services.
[3] In a previous proceeding there was an application for custody of RRH on behalf of her former foster parents, L.M. and R.M. The child was in the care of others pursuant to a customary care agreement as she had been removed from the M's home due to allegations of sexual abuse by R.M. on another child.
Prior Court Orders
[4] By Order of Justice Hoshizaki on October 1, 2013, the Respondent's Application for custody pursuant to s. 21 CLRA was dismissed but the Court stated "in the event the father obtains a Risk Assessment indicating no risk or an ability to minimize risk to RRH, the matter can return to court based on a material change. In the meanwhile, I order supervised access to allow to continue on no less than once per week for no less than two hours supervised access to R.M. twice a month for no less than one hour."
[5] R.M. was then assessed by Dr. David Kolton who concluded that: "R.M. has a low overall risk for sexual offending." Although he indicates it can never be said that someone is at no risk for sexually inappropriate behaviour, in this case there are few factors that suggested that R.M. is at an elevated risk of committing a sexual offence against the child.
[6] The matter came back before the court on March 19, 2014 and Justice Hoshizaki decided at paragraph 13:
"...before the court is what is in RRH's best interest. There were no significant parenting concerns with regard to the M's. The true issue was the risk possibility posed by R.M. My concerns regarding R.M. have been addressed in the Risk Assessment. I am of the opinion that RRH should be in the care of the M's. They are her parents and have loved her since her birth and she loves them. I accept the recommendation of Dr. Kolton. He recognizes that RRH's adjustment back in the M's home be monitored in an unobtrusive way for the next few years. This may simply mean that she continue counselling with a school guidance counselor who is aware of her situation. Or it may mean that she should continue counselling with Anne Shankowski or any other counselor that she is comfortable with."
[7] Accordingly, Justice Hoshizaki ordered:
R.M. and L.M. shall have custody of RRH, born [...], 2012.
The transfer of custodial care shall be accomplished in a transitional manner that satisfies RRH's desire to remain in her current school. In the event that the parents cannot agree on how this is to occur, the matter can be returned to court for direction.
RRH is to spend every third weekend of the month with her maternal grandmother, M.H., from Friday after school until Sunday at noon commencing on the second month after RRH returns to the M's home.
No Order as to costs. The Applicants were successful in their Motion to change, the Risk Assessment should have been available at the original trial.
Fresh Allegations and Apprehension
[8] On March 21, 2014, Kenora-Rainy River District Child and Family Services technically apprehended RRH at her placement home due to fresh allegations of another child about sexually inappropriate behaviour by R.M.
[9] Currently, R.M. has commenced an expungement hearing to have his name removed from the Child Abuse register relating to the first allegations of abuse which resulted in RRH being removed from M's home and placed at her current location. Three days of hearing has concluded with another three days are scheduled for September 2014.
Legal Issue
[10] The issue is where this child should be placed until there can be a full hearing on this proceeding and on reasonable grounds is there risk to believe that the child is likely to suffer harm and that the child cannot be protected adequately by an order pursuant to s. 51(2)(a) or (b) of CFSA.
[11] The M's are requesting custody of RRH as ordered by Hoshizaki J.
[12] On April 14, 2014, Bishop J. ordered supervised access to M's as follows:
(i) Two hours on Thursday, April 17, 2014 and Easter Sunday at their Shoal Lake home.
Court's Analysis
[13] The court reviewed the video statement and transcript relating to the most recently disclosed allegations from a five year old child J.T.
[14] At first blush it appeared that KRRDCFS held back these proceedings with protection concerns as the most recent allegations were known prior to Hoshizaki J's order of March 19; however on further examination it is clear that KRRDCFS only became involved after the child was to be returned to the M's care pursuant to Justice Hoshizaki's custody order. It is disturbing that the disclosure of this new allegation was made approximately seven to ten days prior to Justice Hoshizaki releasing her order and neither Treaty Three Police nor Anishinaabee Abinooji Child and Family Services made that known to the Court which may or may not have influenced her decision.
[15] This is not a custody proceeding, but a fresh Protection hearing. I do not sit in review of Justice Hoshizaki's decisions. The custody order of Justice Hoshizaki of March 19, 2014 is stayed pursuant to s. 57(c) CFSA. I find that KRRDCFS acted professionally and expeditiously to protect RRH. There were five prior allegations of sexual abuse by R.M., one of which has been verified and subject of an expungement hearing on the Child Abuse Register. The most recent allegations are serious, disclosed by a five year old girl.
[16] At the request of L.M. and R.M.'s counsel I have reviewed the case of W.N. v. C.G., [2012] B.C.J. No. 661 and find that it has no application to this case; as it is distinguished on the facts and the legislation. The trial court intra alia on public policy reasons ordered custody to the birth father and did apply the best interests test. The BC CA overturned the trial decision and ordered a new trial.
[17] This case cannot be decided on a temporary basis by affidavit material. The investigation has not been completed by Treaty Three police or KRRDCFS.
Court's Order
[18] For the above reasons a Temporary Order will issue as follows:
(a) KRRDCFS shall have temporary care and custody of RRH.
(b) L.M. and R.M. shall have supervised access to RRH at their home as follows:
(i) Each Monday, Wednesday and Friday from 4:00 p.m. to 7:00 p.m. at M's Home so long as it does not interfere with her schooling or extracurricular activities.
(ii) Each Saturday or Sunday from 10:00 a.m. to 6:00 p.m. at M's home in Shoal Lake the day to be chosen by the M's.
(iii) Any other time as agreed upon by the parties.
(iv) Unlimited telephone access which may be monitored by KRRDCFS.
[19] An order that the Office of the Children's Lawyer appoint new counsel for the Child pursuant to s. 38 CFSA.
Justice Peter T. Bishop
Released April 25, 2014