WARNING

The court hearing this matter directs that the following notice should be attached to the file:

This is a case under Part III of the Child and Family Services Act and is subject to one or more of subsections 45(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:

[1] . . .

[2] (c) prohibiting the publication of a report of the hearing or a specified part of the hearing,

where the court is of the opinion that publication of the report would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.

45(8) Prohibition: identifying child.

No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.

45(9) Idem: order re adult.

The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

85.— (3) Idem.

A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Court File and Parties

Court File No.: C71285/14A1 Date: November 12, 2014

ONTARIO COURT OF JUSTICE

Re: Catholic Children's Aid Society of Toronto – Applicant

V.S. (mother) - Respondent

M.C. (father) - Respondent

Before: Justice Roselyn Zisman

Counsel:

• Karen Ksienski - for Applicant
• Lauren Israel - for Respondent mother
• Colin Tobias - for Respondent father

Heard On: October 30, 2014

ENDORSEMENT ON TEMPORARY CARE AND CUSTODY MOTION

1. Introduction

[1] The three female children, L.M.M.C. born […], 2007 ("L."), M.E.C. born […], 2010 ("M.") and E.C. born […], 2014 ("E.") were apprehended from the care of their mother on July 17, 2014.

[2] The mother briefly cared for the children prior to their apprehension. Previously the children had been cared for by both parents with the father being the primary parent.

[3] The parents separated on July 5, 2014 when the father was arrested due to an incident of domestic violence between the parents. The father was not permitted contact directly or indirectly with the mother.

[4] On July 22, 2014 on a without prejudice basis the children were placed in the care of the society with access at the discretion of the society at a minimum of twice a week as long as such access was positive. The parents are exercising supervised access separately twice a week. The matter was adjourned to permit the parents to obtain counsel and file responding materials.

[5] A temporary care and custody motion was heard on October 30, 2014. The society relied on the affidavits of Gabriela Ivan sworn July 22 and October 27, 2014. The father relied on his affidavit sworn October 10, 2014. The mother did not file an affidavit for this motion.

2. Position of the Parties

[6] It is the society's position that the children should remain in the care of the society with access in the discretion of the society to continue. The society is currently assessing a kinship plan put forward by the paternal grandmother.

[7] The mother supports the children remaining in care at this time and is considering putting forward an alternate plan. The mother submits that the father's plan is premature.

[8] The father is seeking an order placing the children in his care. The father is currently living in the paternal grandmother's home. It is submitted on behalf of the father that he has the support of the paternal grandmother, other family members and community supports and any risk of harm can be alleviated with this support and appropriate conditions of supervision.

3. Statutory Framework and Applicable Legal Principles

[9] Temporary care and custody hearings are determined pursuant to s. 51(2), (3), (3.1), and (3.2) of the Child and Family Services Act, R.S.O. 1990, c. C.11 (hereinafter referred to as "CFSA") the relevant portions which state as follows:

Custody During Adjournment

(2) Where a hearing is adjourned, the court shall make a temporary order for care and custody providing that the child,

(a) remain in or be returned to the care and custody of the person who had charge of the child immediately before intervention under this Part;

(b) remain in or be returned to the care and custody of the person referred to in clause (a), subject to the society's supervision and on such reasonable terms and conditions as the court considers appropriate;

(c) be placed in the care and custody of a person other than the person referred to in clause (a), with the consent of that other person, subject to the society's supervision and on such reasonable terms and conditions as the court considers appropriate; or

(d) remain or be placed in the care and custody of the society, but not be placed in,

(i) a place of secure custody as defined in Part IV (Youth Justice), or

(ii) a place of open temporary detention as defined in that Part that has not been designated as a place of safety.

Criteria

(3) The court shall not make an order under clause (2)(c) or (d) unless the court is satisfied that there are reasonable grounds to believe that there is a risk that the child is likely to suffer harm and that the child cannot be protected adequately by an order under clause (2)(a) or (b).

Placement with Relative, etc.

(3.1) Before making a temporary order for care and custody under clause (2)(d), the court shall consider whether it is in the child's best interests to make an order under clause (2)(c) to place the child in the care and custody of a person who is a relative of the child or a member of the child's extended family or community.

(3.2) A temporary order for care and custody of a child under clause (2)(b) or (c) may impose,

(a) reasonable terms and conditions relating to the child care and supervision;

(b) reasonable terms and conditions on the child's parent, the person who will have care and custody of the child under the order, the child and any other person, other than a foster parent, who is putting forward a plan or who would participate in a plan for care and custody of or access to the child; and

(c) reasonable terms and conditions on the society that will supervise the placement, but shall not require the society to provide financial assistance or to purchase any goods or services. 2006, c. 5, s. 8(3).

[10] The onus is on the society to establish, based on credible and trustworthy evidence, that there are reasonable grounds to believe that there is a real possibility that if the children are returned to the parents, it is more probable than not that they will suffer harm. Further, the society must establish that the children cannot be adequately protected by terms and conditions of an interim supervision order.[1]

[11] As indicated, the mother is not at this time putting forward a plan to have the children returned to her care.

[12] The onus of proof on the society does not change regardless of the order being sought.

[13] As the children were apprehended from the care of the mother, the plan presented by the father must be considered under section 51(2)(c) and section 51(3.1) applies that is, the test is the best interests of the child.

[14] Section 37(3) provides guidance in relation to determining a child's best interests:

37(3) Best Interest of Child

Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall take into consideration those of the following circumstances of the case that he or she considers relevant:

1. The child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.

2. The child's physical, mental and emotional level of development.

3. The child's cultural background.

4. The religious faith, if any, in which the child is being raised.

5. The importance for the child's development of a positive relationship with a parent and a secure place as a member of a family.

6. The child's relationships and emotional ties to a parent, sibling, relative, other member of the child's extended family or member of the child's community.

7. The importance of continuity in the child's care and the possible effect on the child of disruption of that continuity.

8. The merits of a plan for the child's care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent.

9. The child's views and wishes, if they can be reasonably ascertained.

10. The effects on the child of delay in the disposition of the case.

11. The risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent.

12. The degree of risk, if any, that justified the finding that the child is in need of protection.

13. Any other relevant circumstance.

[15] I have considered these criteria and that section 37(3) 5 and 6 in particular supports the father's plan.

[16] I have also considered that the overarching principle of the Child and Family Services Act is to promote the best interests, protection and well-being of children and that any decisions that are made should consider whether a less intrusive order, than a society plan for temporary care, can be made. The court should protect the autonomy and integrity of the family wherever possible and respect a child's need for continuity of care and for stable relationships within a family.[2]

4. Background and Involvement of the Children's Aid Society

[17] The society became involved with the mother in 2002 and 2003 with respect to two other children due to concerns about the mother's inability to care adequately for the children. The children were subsequently made crown wards for the purpose of adoption.

[18] The society became involved with the mother and father during the mother's pregnancy with their first daughter L. who was born on […], 2007. Both parents have some cognitive limitations. Both parents worked co-operatively with the society and other service providers. Both grandmothers were involved and assisted the parents. Although there were some concerns about adequate supervision, appropriate attachment between the mother and child, lack of interaction with the child by both parents and lack social interaction for the child, in April 2008 the file was closed.

[19] In 2010, the file was re-opened due to concerns about the care the mother was providing for L. and because the mother was pregnant with another child. M. was born on […], 2010.

[20] The society remained involved due to concerns about L.'s appearance as she was thin and had several bald patches in her head. The society was also concerned as her speech and social development appeared delayed. Further, L. was not yet toilet trained though she was almost 3 years old.

[21] In early 2011, the society arranged for both L. and the baby M. to be seen at the Hospital for Sick Children's SCAN unit. No concerns were expressed about either child's overall development. Recommendations were made regarding L.'s diet which the parents followed.

[22] The family lived in a one bedroom apartment. The society worker and a community worker who visited the home expressed concerns about the overcrowding, the clutter and strong cat odour. The health specialist who visited the home expressed concerns about M.'s weight and development and the lack of the children attending any community groups or programs. But the family doctor did not express any concerns about the parents' ability to care for the children or any concerns about the children's development.

[23] The parents made minimal progress with respect to their home environment and stated that the issues would be resolved once they found a bigger apartment but they were not pro-active in doing so. The issue of the overcrowding and clutter were especially a concern as it was impeding M. from reaching her milestone of crawling.

[24] The parents co-operated with the society and with various community services to strengthen and reinforce the parents' skills and abilities to meet the children's physical, emotional and developmental needs.

[25] As of May 2012, L. who was 5 years old appeared to be improving. L. had begun to attend school a few months earlier, her speech improved, she gained some weight and she was almost toilet trained.

[26] Despite the family doctor continuing to maintain he had no concerns about M.'s development, she was assessed at Bloorview Centre and diagnosed with "global developmental delay". At that time she was 2 ½ years old and was delayed both with respect to her walking and talking. With the help of occupational therapy she made some gains with respect to her speech and language. But the parents did not follow up with recommendations to enroll her in daycare.

[27] Although the children appeared to be clean and alert, the home continued to be cluttered, untidy and unsafe. The parents made minimal progress in remedying their home environment and continued to attribute the clutter to the small size of the apartment.

[28] The society worker and the community supports continued to encourage the family to follow through with services and recommendations. However, progress was slow and required ongoing monitoring and assistance due to the parents' limitations. The parents also had extensive assistance from extended family members. The mother relied on the father to attend for appointments.

[29] By the summer of 2013, concerns were expressed because the parents were missing, canceling and then rescheduling appointments for M. at Bloorview Centre that resulted in the speech and language services being discontinued and then reinstated.

[30] A case conference was held in September 2013 with the parents and a parent educator and support worker from the Macauley Child Development Centre to work out a plan to assist the parents with following up with M.'s appointments and to enroll her in daycare.

[31] On […], 2014 the mother gave birth to another baby girl.

[32] Another case conference was held to develop a plan to assist the parents to follow up with M.'s appointments at Bloorview that were still being missed, to follow up with daycare for M. that had still not been arranged, to follow up with a school meeting for L. as counselling had been recommended for her and to follow up with obtaining a pediatrician for the baby. There was a concern that the family doctor had monitored M. and not noticed that she was delayed and had not referred her for any assessments. The parents were not in agreement with obtaining a new doctor as the family doctor had always been the father's doctor.

[33] L. was missing a lot of school and the parents blamed this on the fact they had to take M. to Bloorview and so no one was able to pick L. up from the school bus so they took her with them to M.'s appointments.

[34] The state of the parents' apartment continued to be concerning. It was dirty, unkempt and extremely disorganized. On a scheduled visit, it was reported that there were puppy pads with urine and feces left in several places where M. was playing unsupervised and that baby E. was left unbuckled in a car seat.

[35] The society worker helped the parents with a referral for subsidized daycare.

[36] A Family Centred Conference was held on June 18, 2014. The parents, the paternal grandmother, the paternal aunt, the mother's adult support worker, the support worker from the Macauley Centre and various society workers were in attendance. A plan was developed to address the multi issues of concern namely, the issue of E.'s well-being including a referral to a pediatrician and for a health specialist to continue to attend the home and for referrals to community programs to help with infant stimulation. The plan also tried to address L.'s lack of regular school attendance and help with doing her homework; to address M.'s needs including arranging for daycare; to address the parents' ongoing need for more appropriate housing, to improve the state of the home and eliminate the safety concerns; and to support the parents with reminders about appointments.

[37] A short time after the meeting, the society was advised that L.'s school attendance was highly concerning and that there were concerns about her hygiene and appropriate lunches. The health specialist attended at the parents' home and assessed E. as being vulnerable to delays in several areas of communication, and in her gross and fine motor skills. The parents had not followed through with the many activities and recommendations that had been made for E. The parents were again encouraged to take both E. and M. to community programs and that E. be assessed and followed by a pediatrician.

[38] On July 3, 2014 a society worker visited the parents' home and advised the parents to clean and de-clutter the home. The family had 2 dogs and 3 cats and their 3 children in a one bedroom apartment.

[39] On July 5, 2014 the society's emergency after hours worker received a report about an incident of domestic violence between the parents. The police reported that the parents had a fight about taking the puppy to the paternal grandmother's house and the mother wanted to keep the puppy. The argument escalated and according to the mother the father pulled her hair. The father was charged with assault and the terms of his release prohibit him for communicating with the mother. The father admitted there was an argument with mutual yelling and shoving and that he may have pulled the mother's hair but nothing else happened.

[40] The society worker interviewed the mother who reported that there were other incidents of abuse by the father, that he had slapped L. on the face several months ago and swore at her and the children. She also reported that the father spanked the children numerous times. The mother also reported that the paternal aunt and grandmother had also assaulted her. The mother did not previously report the assaults as they threatened to take the children away from her.

[41] L. was interviewed and reported that she was happy her father was out of the house and that when he was home he did not care that she was there and he spent all of his time on the computer. L. also reported that she has witnessed her father assaulting her mother and he had slapped her on the face when she did not want to go to school but she was not afraid of him. During another interview L. disclosed that her father spanked her 20 times in her bum while her sister M. gets spanked just 15 times.

[42] Over the next several weeks, the society attempted to ensure the mother was able to meet the needs of the children with the assistance of the society and one of the mother's friends. The father's family refused to offer any assistance if the children remained in the mother's care. Although there was some improvement regarding the state of the home, overall there were concerns about the mother's ability to ensure the children were safe and properly cared for while in her sole care. The society determined that the mother needed someone in the home full-time something the mother's friend could not arrange due to her own family responsibilities.

[43] The children were apprehended on July 17, 2014.

5. Events Subsequent to the Apprehension

[44] The father has exercised supervised access. The father has consistently attended the visits. Generally, the visits have been positive. The society has pointed out several concerns with respect to the father ignoring L. during the visit and not being able to meet the needs of the children such as not changing E.'s diaper and not properly feeding her and not properly supervising the children which created some safety concerns. Father's counsel, on the other hand, points out the positive interaction during the visits and the father's ability to meet the children's needs. Generally, there are times when the father seems to be able to interact and anticipate the needs of the children appropriately and avoid situations where their safety is compromised and there are other times when he is not able to do so.

[45] The society has held separate Family Centred Conferences for the mother and the father to explore their plans for the children to be returned to their respective care and to explore how each parent can be assisted.

[46] The society has noted that the father seems to have some difficulty in remembering appointments or changes in the access schedule.

6. Father's Plan

[47] The father is residing with the paternal grandmother in her home. The society has inspected the home and the bedroom that L. and M. would share is clean and appropriately furnished. E. would share a bedroom with the paternal grandmother and the crib in her room met the safety requirements.

[48] The father has begun to participate in the PARS program as part of a resolution of the outstanding criminal assault charge. He is looking into a parenting program regarding alternative forms of child discipline.

[49] The father deposes that he will continue to take M. to her appointments at Bloorview and will also be able to connect E. to those services and will ensure that L. attends school. He plans to arrange daycare for M. and E. once he is able to change the childcare subsidy from the mother's name into his name. He is also planning to enroll the children in extracurricular activities and blames the mother for the children not previously being involved in such activities.

[50] The father is willing to work co-operatively with the society, the community supports and he will continue to have the assistance of his family.

[51] The children will continue to have their medical needs met by the family doctor.

7. Analysis

[52] The society has easily met its onus of proof that if the children were returned to the mother's care there are reasonable grounds to believe that there is a risk that the children would likely suffer harm. There have been longstanding concerns about the inability of both parents to meet the physical, developmental and emotional needs of the children and within a short time of being the sole caregiver of the children the mother was overwhelmed and the children needed to be apprehended from her care. She has not at this stage asking for the children be returned to her care and acknowledges that any terms of supervision would be inadequate to protect the children.

[53] The next issue and the focus of this motion is whether or not it is in the best interests of the children, before making an order placing them in the temporary care of the society, to make an order placing them in the care and custody of the father.

[54] The father submits that it is in the children's best interests to be placed with him and that with family assistance and terms of supervision, any risk to the children can be minimized. He also submits that many of the risk outlined by the society are diminished now that he is no longer living with the mother.

[55] It is submitted on behalf of the father that the society has an onus to provide services to assist a parent, that the society has the duty to continually re-assess and evaluate the father's plan and that the standard of care is not perfection but adequate care.

[56] I find that that the children cannot be adequately protected by terms of supervision and that at this time, it is not in their best interests to be placed in the sole care of the father for the following reasons:

a. Domestic Violence

The father admits that there was some conflict in the relationship between the mother and him but that now that they are separated the risk no longer exists. He minimizes the extent of the abuse and does not have any insight into the effect on the children of being exposed to such conflict. The father has just commenced the PARS program which presumably will provide him with some insight into the effects of domestic violence and better ways to control his temper and learn a more appropriate way to deal with partner conflict. Whether or the father is currently residing with the mother, without such understanding and insight the children will be at risk if the father becomes involved with another partner.

b. State of the Home

Since 2010 the state of the home has been an issue. The father was the primary caregiver of the children and maintains that he was the parent responsible for cooking and cleaning. Yet he has been incapable of ensuring that the home was clean, uncluttered and safe for the children. In view of the developmental delays in the children's motor skills, the ability to have an uncluttered space to move around in was essential. The father has not been able to arrange for larger accomodations. The father submits that this is no longer an issue as he will be living in the home of the paternal grandmother but the fact that he did not recognize the impact on the children of the living conditions and his inablity to improve those condtions raises questions of his ability to continue to be the primary caregiver of the children.

c. Inability to Meet the Developmental Needs of the Children

The father did not take any initiative to ensure that the children were meeting their developmetnal milestones. In fact, it appears that he was not even aware that any of the children had any development delays until the society had the children assessed and arranged for the assitance they required. The father was the parent responsible for ensuring that M. attended her appointmets at Blooview to asssist her with development delays. The father blamed the missed appointments on the fact he was in the hospital. However, the father was only in the hospital for 10 days in December 2013 and M.'s appointments were missed in July 2013 and February 2014. The father did not take any proactive steps to ensure L.was meeting her developmental milestones. There are concerns that E.is also not meeting her developmental milestones but the father has not followed through with activities or programs that were recommended for her. The father submits that he now has the help of his family to ensure that the the children attend all of the appointments and he will now be able to arrange programs. But according to the father and the evidence of the society, the extended family has always helped the parents and yet they could still not manage to help the father ensure the children's developmental needs were met.

d. Inability to Ensure L.'s School Attendance

The father was again the parent responsible for ensuring that L.attended school. In view of her early delays and lack of stimulation such attendance should have been a priority but again the father could not manage to arrange for both M. to attend her appoinments at Bloorview and for L. to be picked up from the school bus. Again despite help from various family members this could not be arranged and instead the parents just kept L. out of school and took her with them to M.'s appointments. The father did not use the support offered by the Macauley Centre support worker to assist in dealing with L.'s struggles at school, to help attend a school meeing or to arrange counselling that had been recommended. The father now wishes the court to believe that he can handle these committments.

e. Inability to Arrange Appropriate Services for the Children

The father was not able to organize daycare for the children despite this being recommended since 2012. Despite the family doctor not diagnosing M.'s developmental delays and despite the recommendations of the society that the children be seen by a pediatrician, the father's plan is to continue to have the children's medical needs monitored by the family doctor.

f. The Parents' Limitations

Both parents have intellectual limitations although the father appears to be the more capable parent. The father also has stated that the mother has some mental health issues. The mother is in receipt of ODSP and has an adult protection worker. The father also has an adult protection worker and has applied for ODSP but the father has not provided any information or a medical report as to the nature of his disability and the impact on his ability to parent. Based on the evidence, it is clear that the father has difficulties manging multiple tasks and cannot seem to remember to attend appointments if they were rescheduled. This impacts on his ability to manage the children's needs but the full extent of the impact of his limitations are not known at this stage.

g. The Father's Discipline Techniques

The father admits that he spanked the children and that he needs to learn more appropriate ways to discipline them. He denies that he slapped L. across the face however, in view of her age, manner of disclosure, consistency of disclosure and lack of any reason to lie, I find that this is credible evidence. There are also concerns about the father's lack of attention to the children that potentially places them at risk because of his pre-occupation with playing computer games. L. reported that her father spent most of his time playing on the computer and a society worker also observed this during a home visit.

h. Ability to Utilize Services

The parents have had the benefit of a multitude of services provided by the society and community service providers but the same issues to a greater or lesser extent that required the society becoming involved in 2007 continue to exist. Since at least 2012 a parent educator and support worker from Macauley Centre has been involved with the family. Her role is to provide information and support about parenting and assist with programming for the children. The father proposes to use her services but he has in the past never been able to utilize those services and appropriate programs have never been put into place for the children. Prior to the apprehension, the society held a Family Centred Conference to ensure that extended family members and community supports understood the risk to the children and collectively worked on a plan to keep the children in the care of the parents. Father's counsel submits that if not for the incident of the assault, the children would have remained in the care of the parents in accordance with the plans made at the Family Centred Conference held on June 9, 2014. But several weeks after the conference, nothing had changed and the same concerns were still evident. It is not useful to speculate as to whether or not the society would have continued to permit these children to remain with their parents despite the lack of any progress in their care.

[57] I find that despite the years of support this family has received from the society and the number of services put in place, the parents have not been able to utilize these services and supports to the extent that the needs of the children were met on even a minimal standard of care. The fact that the same concerns have existed for over 7 years and the children had not apprehended does not minimize the risks when scrutinized by the court. In hindsight, it may have been prudent for the society to apprehend the children shortly after it became apparent that L.'s needs were not being met or after M. was born when it became clear that her needs were also not being met or again after E. was born. But the society worked with the parents to attempt to keep the children in the care of their parents. The fact that throughout this time, it is the father, who has been the primary parent responsible for the children's needs, reinforces his ongoing inability to continue to be the primary caregiver now that he is living separate from the mother.

[58] To the father's credit he has begun to taking some programs to improve his parenting and understand his anger management issues. However, all of these steps are only at the beginning stages and the father needs to demonstrate that he can now complete the programs and put into practice the information he learns. It is unclear at this stage what other assistance he will require to manage the multiples needs of his children. What is clear is that he has historically been unable to do so and there are no other services that could be put into place that will minimize the risks to these children if placed in his care.

[59] I have considered that the father is now living in the home of the paternal grandmother and he has deposed that he will therefore have her assistance and the assistance of the people living in that home and of his sister. However, neither the paternal grandmother nor any other support person has filed an affidavit on this motion. The society is in the process of assessing the paternal grandmother as a kinship plan. At this motion, there is insufficient evidence to assess the extent of family assistance that can be offered to the father, how it is different from the assistance previously offered and why the paternal family members were not aware of the deplorable state of the home, the lack of stimulation for the children, their developmental delays and the general neglect of their needs.

[60] I have no doubt that the mother, father and all members of their extended family love these children and that the children love them. I am aware that it will be disappointing for the father and his family that the children cannot at this stage be placed in the father's care. However, these children have multiple needs that have not been properly or consistently addressed for many years and the court cannot simply rely on the father's word that he will now be able to manage all of the children's needs.

[61] No submissions were made with respect to the terms of access but in view of the needs of these three young children and the concerns that have observed during access visits, I find that supervised access should continue.

8. Order

[62] There will be an order as follows:

1. The children will continue to remain in the temporary care and custody of the society.

2. Access to the mother and father shall continue to be at the discretion of the society and to be supervised by the society.

Justice Roselyn Zisman

Date: November 12, 2014

Footnotes

[1] Children's Aid Society of Ottawa-Carlton v. T., [2000] O. J. No. 2273 (Sup.Ct.)

[2] Children's Society of Toronto v. Lois P. and Nathan P., 2010 ONCJ 320, [2010] O.J. No 3508 (OCJ); Catholic Children's Aid Society of Toronto v. M.R., [2003] O.J. No. 3965 (OCJ).