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.: 56/12 Date: 2014-06-19 Ontario Court of Justice

In the Matter of the Child and Family Services Act, R.S.O. 1990, c. C.11

Between: Chatham-Kent Children's Services

And: C.P. (Mother) and W.G. (Father)

Counsel:

• L. Hodgson-Harris for the applicant society
• P. Watson for the mother, C.P.
• W.G., Father, self-represented
• J. Pascoe, Office of the Children's Lawyer, for the child

Heard: June 16, 2014

Justice: John Kukurin

Decision

[1] Introduction

This is a decision on a motion (at Tab 1, Volume 2) for summary judgment brought by the applicant society in the child protection application before this court.

[2] Issues Raised

This summary judgment motion and the child protection application raise some interesting issues:

(a) Do protection concerns relating to an access parent justify society intervention by way of a child protection application?

(b) Does a person having "charge" of a child include, for purposes of a finding in need of protection under s.37(2)(b)(i) of the Child and Family Services Act (the "Act"), an access parent during the time that such parent is exercising access?

Background

[3] Family History

The history of the family is unremarkable in the sense that it is not at all uncommon. There is one child, D.W.G., now age 8 years. His mother and father never married. However, they cohabited for a time some years ago, and perhaps even more recently. The boy lived with his mother who was his primary caregiver. The father has always been in the picture, exercising extensive access when he resided elsewhere, and even more contact when he was staying with the mother.

[4] Mother's Circumstances

The mother has a litany of physical ailments including chronic severe migraines, serious gynecological issues, gastrointestinal problems, respiratory difficulties including asthma and emphysema. In addition, she was plagued with sleep disorders (apnea) and weight problems. She is a smoker and has been reported to have fallen asleep with lit cigarettes burning, causing damage to bedding, flooring and even burns to her own chest. She took prescription medication initially to manage her pain. This devolved however into an addiction over several years of usage, mostly to oxycodone and percocets. She acquired drugs on the street or bartered with friends. She is a long time user of marijuana (the non-medical kind) and that continues to date on a fairly regular basis. Overlying these physical problems and drug use issues are bouts of anxiety, depression and occasions of lack of impulse control. Not surprisingly, she ran into financial problems. At one point, she ran up a large telephone bill and currently owes the welfare authorities $24,000 in repayment for welfare fraud.

[5] Society Involvement and Custody Proceedings

The society has been aware of much of this for several years. The father and mother have had issues, mostly over her drug (ab)use, and these led to occasions of domestic discord. The mother had been admitted to hospital on many occasions. On one occasion in late October 2011, she called the father for assistance as she was in serious medical distress. He brought her to the hospital and took the child into his care. The mother was assessed to be under the influence of drugs, possibly an overdose. The society became involved through a referral. The father, at this point, and with society encouragement, took steps to pursue a custody order through the family court in his favour. He started a Children's Law Reform Act (CLRA) claim for custody. He also entered into a Family Service Agreement with the society. This involved restrictions on the mother's contact with the child. A few days after her release from hospital, as the father, the child and the mother were driving on a Windsor street, the mother learned of these developments, lost her self control and physically attacked the father while he was driving the vehicle. This led to police involvement. She was charged with assault to which she later pleaded guilty. She was given a discharge and placed on probation for a year, one condition of which was completion of a Partner Assault Program (PAR) which she did not complete. The child remained in the care of the father throughout this time. The father lived with his parents in their home.

[6] Domestic Custody Proceedings

The domestic custody proceedings resulted in an initial 'without prejudice' consent order for maternal access, but this was to be supervised by one of several persons. The father never did obtain any domestic custody order of any kind in that proceeding. Ultimately, the proceeding faltered when the society brought its child protection application in March 2012 and the CLRA custody claim became statutorily stayed.

The Child Protection Application

[7] Timing of Events

Of more than passing interest is the timing of events. The child had been continuously in the mother's care from his birth until late October 2011, a period of almost six years. At that time, the father took D.W.G. into his care. The child has remained with him continuously since. The society started its child protection application some 4 ½ months later on March 9, 2012. The father was, by that time, well ensconced as the child's sole custodian and primary caregiver. The mother saw the child during this time as an access parent and, as I read the evidence, was never left alone with the child. The society was well aware of all of this as it remained involved in the family and was advocating the father as a sole custodial parent.

[8] Circumstances at Time of Application

Why the society commenced its child protection application when it did is a bit of a mystery. What access the mother was exercising was subject initially to her bail release conditions, and shortly thereafter (by Nov 8, 2011), by an interim without prejudice order made in the domestic family court proceeding. That court order required that all maternal access be supervised. There does not seem to be any evidence that the mother was having contact with D.W.G. in contravention of this restriction. The society evidence indicates that the mother became unco-operative, was refusing to sign releases, was surreptitiously audio taping her meetings with society workers and was continuing to use non-prescribed drugs. That same evidence indicates that the mother had not exercised access for a month prior to the filing of the child protection application. As for the father, there seemed to be no issues with his parenting at that time.

[9] Grounds and Relief Sought

The grounds relied upon for a finding in the society's child protection application are those in s.37(2)(b)(i) of the Act – risk of physical harm. Its claim in its application was for placement with the father subject to a six month supervision order, and for maternal access at least once per week to be supervised in the discretion of the society.

[10] Temporary Orders and Amendment

Temporary care and custody orders were made, essentially including, on a temporary basis, precisely what the society was seeking on a final basis. The proceeding percolated along with this status quo in place. Over 1 ½ years later, on November 18, 2013, the society amended its child protection application. Its new claim was for a section 57.1 sole custody order in favour of the father. It also sought a maternal access order not less than twice monthly to be supervised by a designate approved by the father. It was no longer seeking a protection order. By this point, no finding had been made that the child was in need of protection. No such hearing had ever been scheduled. The society's ground for a finding remained s.37(2)(b)(i) – risk of physical harm.

[11] Summary Judgment Motion

This was the preamble to the present motion for summary judgment that is now before this court. This motion was not filed until May 29, 2014, yet another six months after the amended application. The society is seeking, by summary judgment, the same finding and disposition by way of custodial placement and parental access that it is pursuing in its amended application. The mother had filed an Amended Answer to the Amended Application. She opposed a finding. She wanted D.W.G. returned to herself, with a s.57.1 custody order, or alternatively with a six month supervision order. Somewhat surprisingly, the mother has not responded to the summary judgment motion which seeks the same relief that she clearly opposes in the Amended Application. She has filed no evidence in response to the summary judgment motion. She did not attend this hearing.

[12] Father's Response

The father did attend. He has filed a responding affidavit which essentially confirms or corroborates much of the society's evidence with respect to the mother and her parenting deficiencies. It is clear from his evidence that he supports the society's claims for a sole paternal custody order and a maternal access order subject to supervision conditions. He has not specifically addressed the issue of a finding. A reasonable inference is that he agrees the mother to be a source of risk of harm to the child. He does not agree that he represents such a risk. He, in fact, qualifies his endorsement of the society's evidence, somewhat enigmatically:

"…however, there are some facts about myself that I do not agree with"

The Finding in Need of Protection

[13] Legal Framework for Finding

The justification for society intervention in the lives of families is the protection of children. The society's authority is subject to a number of procedural checks and balances in the Act, and ultimately to judicial oversight. The pivotal point in a child protection case is the finding that a child is in need of protection. The court is statutorily mandated to make a determination when a child protection application is commenced. The hearing of that issue is subject to some time limits. If a finding is not made, no further orders, neither protection orders nor s.57.1 custody or access orders are permissible. The child protection case ends. Accordingly, the finding is essential. The society now seeks this finding by way of summary judgment. For the court to reach this finding, it must be satisfied on the evidence that there is no genuine issue with respect to a finding that requires that issue to be dealt with in the context of a trial. Essentially, it must be satisfied that such a finding is inevitable, or a foregone conclusion. The summary judgment provisions, in Rule 16 of the Family Law Rules, place an obligation on Respondents in summary judgment motions to put all their evidence before the court, to put their best foot forward, and to do so with facts.

[14] Consequences of Finding or Non-Finding

If a finding in need of protection is not made at trial, the child protection case is at an end. If it is not made on a summary judgment motion, the child protection case continues with the issue of a finding to be determined at trial. Exiting interim orders would continue in the meantime.

[15] Evidence Regarding the Mother

In the present case, the society argument was that the risk of harm to the child emanated from the acts or omissions of the mother. Fully 99% of its evidence were allegations, many of them hearsay (or double hearsay) in nature, about the mother and her deficiencies as a parent. On reviewing the evidence of the society, even discounting its hearsay nature, and taking into account the evidence of the father with respect to the mother (much of which is firsthand), and considering the mother's complete lack of evidentiary response to the mountain of pejorative allegations made about her, I am more than satisfied that she represents a significant risk of likely harm to the child should he be in her care and custody.

[16] Statutory Language and "Person Having Charge"

Unfortunately, this is of little to no help to the society on the critical matter of the finding it seeks under s.37(2) of the Act. The language of s.37(2) is fundamentally a definition section. It has precise language that defines circumstances or criteria by which to determine if a child is a child in need of protection. The risk of likely physical harm ground requires that the risk is caused by or results from the certain failures of a specific person, namely, "the person having charge of the child". The failures of such person are also specified. These are failures to adequately care for, provide for, supervise or protect the child. Risk of physical harm caused by or resulting from someone else will not suffice for a finding under this subsection.

[17] Who Has Charge of the Child

The person having charge of D.W.G. in this case was his father, not his mother. The relevant time for determining who had charge is when the child protection application is brought. The father was well established by that time as the child's sole custodian, the child's primary caregiver and clearly the only person having charge of the child. He had been for a full four months before the application was commenced. The word "charge" has been subject to considerable judicial comment by a number of jurists, myself included. This has been in the context of s.51(2) of the Act which uses wording "… the person who had charge of the child …" virtually identical to that in s.37(2)(b)(i).

There is no cogent reason to allocate to the word 'charge' a different meaning when it appears in the context of s.37(2)(b)(i) of the Act.

[18] Relevance of Father's Conduct

Accordingly, for a finding in need of protection under s.37(2)(b)(i) in this case, it is the acts or omissions of the father that are relevant, not so much those of the mother.

[19] Society's Argument Regarding Access Parent

The society advanced the argument that the mother in this case was also a person who had "charge" of the child D.W.G. by reason of the fact that she had the child in her care during periods of maternal access. This, it argues, would make all of its evidence about the mother relevant on the issue of a finding on risk of physical harm grounds.

[20] Court's Rejection of Access Parent Argument

I disagree. The father had charge of the child continuously from late October 2011. The society does not dispute this. While two (or more) persons may contemporaneously have charge of a child, the circumstances of this case are not such to lead to the conclusion that the mother and father both had charge of D.W.G. The mother was never alone with the child after October 2011. She was always supervised when he was with her. She did not have the authority to do with the child whatever she wished to do. She could not even be alone with the child. To suggest that she had "charge" of D.W.G. during access visits is a stretch that is much too long. Charge of a child in the context of the usage in the Act has a much more comprehensive meaning.

[21] Alternative Ground – Emotional Harm

I must digress at this point to deal with another submission of the society on this summary judgment motion, namely, that it was relying for a finding on s.37(2)(g) (it is unclear whether in lieu of or in addition to s.37(2)(b)(i) of the Act). This argument, sprung with no prior notice, must fail. Section 37(2)(g) of the Act specifies grounds of risk of emotional harm. However, this subsection refers in its wording to another subsection, namely s.37(2)(f), that describes the kind of emotional harm that would be necessary for a finding of risk of such harm. The source of risk of emotional harm is different than the source of risk of physical harm. For the latter, it is the person having charge of the child. For the former, it is not only the person having charge, but also any "parent" of the child. In this case, argues the society, this would also include the mother. I agree with this submission. What is essential for a finding of risk of emotional harm, with such risk emanating from the mother, is sufficient evidence to meet the requirements of s.37(2)(g).

[22] Evidentiary Requirements for Emotional Harm

It is not simply a likely risk of some emotional harm that must be demonstrated by the evidence. The type of emotional harm is specifically described by reference to s.37(2)(f). That is harm that is demonstrated not just by anxiety, depression, withdrawal, self destructive or aggressive behaviour, or delayed development, but one or more of such symptoms that can be categorized as "serious". The mother was the child's primary caregiver for almost six years. There is virtually no evidence that he has suffered any emotional harm, much less any significant emotional harm during that time. So far as can be inferred, D.W.G. is a relatively normal child. There is no mention of any of the aforementioned symptoms in D.W.G.'s past. While risk looks to the future, the past is generally a good predictor of the future. To show the existence of risk of emotional harm of the kind required by s.37(2)(g), the society would need some fairly heavy duty expert evidence from a mental health professional, preferably one who as actually assessed, or at least spoken with the child, in order for me to be satisfied that D.W.G. is a child in need of protection on risk of emotional harm grounds. This last minute argument is poorly supported by any relevant credible evidence and goes nowhere on the issue of a finding in this summary judgment motion.

[23] Evidence Regarding the Father

The evidence required to support a finding on risk of physical harm grounds must be evidence that relates to the father as the person having charge of the child. The society does argue that there is some evidence to support a finding on this basis. Moreover, it argues that such evidence is sufficient to meet the requirements of Rule 16. Specifically, it contends that there is no genuine issue for trial with respect to a finding on risk of physical harm grounds.

This merits a closer look at what the evidence actually is. The father has never inflicted physical harm on the child. Risk of this is remote. On the evidence it is unlikely that he will do so in the future. Accordingly, the evidence has to relate to risk of physical harm resulting from the father's failure to adequately care for, provide for, supervise or protect the child. There is scant or no evidence that he has at any time not cared for, provided for or supervised the child adequately. The only other basis for inferring risk of physical harm is from the father's failure to protect the child adequately.

[24] Domestic Violence Incidents

The society relies on historical incidents of domestic discord including violence between the father and the mother. One incident in February 2010, which required police attendance, involved parental arguments with the child present. This incident was sufficiently significant to warrant the father and child leaving the home to stay with a relative elsewhere. Another incident in August 2010 involved "fighting" between the parents, with the child present and intervening, telling the father to stop hitting the mother. The father later denied hitting the mother and claimed he was pushing her away. Whatever the version, the fact of domestic strife with overtones of physical violence in the presence of the child is a reasonable inference. The parents entered into a Voluntary Service Agreement on August 17, 2010, signed by both of them, which recited the fact of incidents of domestic violence in their relationship, with the child present to witness these.

[25] October 2011 Assault Incident

The parental relationship was clearly strained and involved separations and reconciliations. The assault incident at the end of October 2010, although instigated by the mother is significant in many respects. First and foremost, the child was present when this incident took place. The father was well aware of the mother's circumstances at the time. He was driving on a public street when the assault took place. He was the driver of the vehicle. It was his discussions with the mother that apparently precipitated the assault. There is certainly some concern about his judgment at the time and whether he was adequately protecting the child.

[26] Confusion Regarding Access Restrictions

The father consented to a Voluntary Service Agreement with the society dated Oct 28, 2011. This contained some undertakings by him to ensure adequate supervision of the mother's contacts with the child. It was only two days later that the assault occurred. Thereafter, there seems to have been some confusion as to what restrictions or conditions applied to the mother's contact with D.W.G. as a result of:

(a) her bail release conditions

(b) the family court interim without prejudice maternal access order (under the CLRA)

(c) the family court interim maternal access order in the child protection case (under the CFSA)

(d) the conditions of the mother's probation order dated March 23, 2012

There is evidence to infer that the father was permitting maternal contact, perhaps inadvertently or perhaps not, that was in contravention of outstanding conditions or restrictions. He admitted that in January 2012, while the mother's bail recognizance condition of no contact with the father or the child was still in force, he and the child spent a weekend together in the mother's home. This may have been addressed eventually, but does indicate some degree of failure on his part to ensure compliance with such court imposed conditions and, as a corollary, failure to adequately protect the child.

[27] Maternal Grandparents as Supervisors

There was also a belief on the part of the father that the maternal grandparents could supervise the mother's access. He, in fact, consented to an order to this effect. The society did not approve the maternal grandparents as maternal access supervisors. There is some credible evidence to support the position taken by the society in this regard. He had agreed earlier that maternal access supervisors would be either himself or the child's paternal grandparents. Eventually, the father came to agree with the society's position. However, his initial position and his consent to a domestic order with questionable provisions also call into question his ability to adequately protect the child.

[28] Father's Failure to Respond

The father does not respond to these several allegations about himself. Likely this is because he supports what the society is seeking in terms of placement and access. His response is devoid of factual detail, stating at best that he doesn't agree with some things that the society has said about him. This is the type of response that is specifically addressed by Rule 16 of the Family Law Rules. This Rule requires summary judgment motion respondents to respond with specific facts and not rely on general denials. The father's evidence fails to attack that evidence of the society that portrays him as a source of risk of physical harm to the child.

[29] Conclusion on Finding

The end result is that I can conclude that there is not any genuine issue with respect to a finding in need of protection that requires a trial of that issue. I am prepared to make a finding under s.37(2)(b)(i) of the Act. The risk and the harm contemplated by this subsection need not be substantial. Neither the level or degree of harm required is set out in this subsection. It cannot however, be trivial quantitatively or qualitatively. What is clearly set out in this subsection is that the harm is likely to result. It is not necessary that risk of physical harm continue to exist at the time a court is asked to make a determination on a finding. Risk of physical harm in the past is sufficient for a s.37(2)(b)(i) finding.

Disposition

[30] Custody

The finding in need of protection represents the main issue in the summary judgment motion and, in fact, in the trial. Disposition is much easier to determine. The evidence is overwhelming that the mother ought not be the child's caregiver and custodian. She has dramatically failed to respond with any credible evidence to the many allegations of fact tendered by both the society and by the father that support this conclusion. Currently, her access has become sporadic. Whether she has dealt with her myriad medical and drug problems cannot be determined. Her refusal to submit to drug testing supports an adverse inference that test results would show she is still using. Her family is apparently no longer supportive of her. Her claims for sole custody or for care and custody under a supervision order are untenable in the circumstances.

It is equally apparent that the father should have sole custody and be the child's caregiver. He has demonstrated that he is capable in his parenting. Moreover, the child has been in his care for quite some time without any incidents, and seems to be doing quite well. Section 57.1 permits an alternative to a continuing protection order where the best interests of the child warrant such order. This is the case with this family. The society has effectively had a supervision order in place for well over two years. Its involvement in this family is no longer required by way of a court order. The father is sufficiently capable of ensuring protection of the child from whatever risk the mother may currently represent.

[31] Maternal Access

As for maternal access, the continued involvement of the society is no longer required and its present claim seems to confirm this. It is opposed to an order that is silent as to maternal access and I can understand why that would be so. With the evidence before the court, it is appropriate that the mother's access be supervised but the decision as to this will rest with the father as the custodial parent. He will decide whether all or what part of any maternal access be supervised, and by whom. He will also have the discretion to set the times, frequency, duration, location and any other aspects of maternal access subject to a minimum of twice monthly visits at a supervised access centre in the mother's city of residence, with arrangements with such facility to be made by the mother.

The child wishes to see and spend time with his mother. The intent is to continue a minimum of maternal contacts with the child, in a setting that minimizes risk of harm, with the flexibility to adjust and expand access as circumstances change. This can be done by decisions of the father, and in the event of any dispute on maternal access, can be dealt with in an application by either parent to vary the terms of the order being made this day.

Order

Accordingly, there will be an:

Order to Go:

1. That the Respondent father, W.G., shall have sole custody of the child D.W.G., born […], 2005 pursuant to s.57.1(1) of the Child and Family Services Act.

2. That, pursuant to s.58 of the Child and Family Services Act, the Respondent mother, C.P., shall have reasonable access to the said child, supervised in the discretion of the father, W.G., by a person or persons approved by the said father as maternal access supervisors from time to time.

3. That the time, frequency, duration, location, place of exchange or any other conditions of any maternal access shall be reasonable having regard to all of the circumstances, and shall be in the sole discretion of the Respondent father, W.G.

4. That, despite any provisions herein contained, the Respondent mother, C.P. shall, at minimum, be entitled to maternal access to the said child on two days each month for a minimum duration of two hours per visit, at a Supervised Access Facility in or near to her city or town of residence, arrangements for such access to be made by the mother.

5. That maternal access to the child may include reasonable contact by telephone, letter or other electronic means always subject to reasonable conditions or restrictions imposed thereon by the father.

6. That the provisions with respect paternal custody and to maternal access contained in this order shall, in accordance with s.57.1 of the Child and Family Services Act be deemed to be made pursuant to s.28 of the Children's Law Reform Act.

Released: June 19, 2014

Signed: "Justice John Kukurin"