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 Information
Court File No.: C80327/15
Date: 2015-03-02
Ontario Court of Justice
Parties
Between:
Children's Aid Society of Toronto
Michelle Cheung, for the Applicant
Applicant
- and -
C.S. and K.J.
Respondents
Lisa Baumal, for the Respondent, C.S. Angie Panzaru, agent for Jeffrey Stone, counsel for the Respondent, K.J.
Heard: February 26, 2015
Justice: S.B. Sherr
Endorsement
Part One – Introduction
[1] The Children's Aid Society of Toronto (the society) seeks an order that the subject children of this protection application, Ke. J., age 6, and Ki. J., age 4, (the children) be placed in the temporary care and custody of the society, with access to their parents, C.S. (the mother) and K. J. (the father), to be in the discretion of the society.
[2] The mother opposes the society's motion and seeks the dismissal of the protection application. In the alternative, she seeks an order that the children be placed in her temporary care and custody, subject to society supervision. In the further alternative, she asks that the court place the children in the temporary care and custody of her mother (the maternal grandmother).
[3] The father seeks an order that the children be placed in his temporary care and custody, subject to society supervision. In the alternative, he asks that the children be placed in the temporary care and custody of his mother (the paternal grandmother).
[4] The mother and father both seek as much access as possible if the court orders that the children stay in the care of the society.
Part Two – Background Facts
[5] The mother and the father are the parents of the children. The mother alleges that the father is also the biological father of her third child, who is 19 years old and lives with her.
[6] The mother is 33 years old. She is a United States citizen.
[7] The father is 35 years old. He is also a United States citizen.
[8] The parties had an on-again/off-again relationship from about 1995 until it ended in 2010. They were never married.
[9] The father was in prison from 2001 to 2008 in the United States due to drug-related convictions.
[10] The mother and father lived in New Jersey until 2011.
[11] The children were born in New Jersey. They are United States citizens.
[12] The mother and father were engaged in custody/access court proceedings in 2011 in New Jersey, when the mother moved with the children to North Carolina.
[13] The New Jersey court made an order on August 30, 2011, that the mother must remain in North Carolina with the children. The children lived with the mother and visited with the father.
[14] The mother deposed that Ke. J. advised her on October 9, 2013 that he had been sexually abused by the father.
[15] The mother reported the alleged abuse to the police and the Durham County Department of Social Services in North Carolina (DSS). Both started investigations.
[16] On October 15, 2013, the mother filed a complaint in court against the father alleging abuse of the children. The mother sought a protective order on behalf of her and the children. The mother failed to appear at court and the complaint was dismissed on November 27, 2013.
[17] On October 23, 2013, the mother filed a second complaint against the father, alleging harassment of her and the children. The mother failed to appear at court and the complaint was dismissed on December 11, 2013. The court made an order that the mother could not re-file this complaint.
[18] On December 3, 2013, the mother re-filed her initial complaint.
[19] On December 4, 2013, DSS reported to the court that the neglect alleged by the mother was not substantiated. The court made an ex-parte order granting access to the father.
[20] On December 5, 2013, the court ordered the Sheriff's Department to deliver the children to the father to facilitate visitation. It appears that this court appearance was also heard on an ex-parte basis.
[21] The mother deposed that she reported to DSS another sexual assault by the father against Ke. J., in mid-December of 2013. She said that she obtained an ex-parte restraining order on December 16, 2013, with a hearing to be scheduled for the following day.
[22] The mother produced a North Carolina Safety Assessment dated December 15, 2013. This report states that sexual abuse is suspected and circumstances suggest that child safety may be an immediate concern. The mother agreed with DSS that the children would have no further contact with the father until further notice from them.
[23] On December 18, 2013, the court dismissed the mother's complaints and ordered that she could not re-file any further complaints unless new evidence was produced. The mother states that the court ordered that the children have access to the father until December 22, 2013. She said that Ke. J. reported that the father sexually assaulted him again during this visit.
[24] On December 20, 2013, the father filed a complaint and request for a Domestic Violence Protective order against the mother. He alleged that she had issued threats and had refused to allow him to see the children.
[25] On January 2, 2014, the court ordered the children into the father's custody until January 5, 2014. The case was adjourned until January 9, 2013.
[26] The mother left North Carolina with the children on January 7, 2014 and came to Canada. She made a Convention Refugee claim on behalf of her and the children. The mother left North Carolina without any notice to the father.
[27] On January 13, 2014, the North Carolina court granted a protective order of custody to the father and ordered that a law enforcement officer may take the children from the mother and deliver them to the father.
[28] On March 31, 2014, the North Carolina court ordered any law enforcement officer in North Carolina to take the children from the mother and deliver them to the father.
[29] The Canadian Central Authority opened a file, at the request of the father, on May 7, 2014.
[30] The mother was located in Canada by the Canadian Central Authority in June of 2014.
[31] The father issued an application under the Hague Convention for the return of the children, in this court, on September 30, 2014.
[32] The father had difficulty locating the mother for service. She was finally served by substituted service.
[33] The Convention Refugee Hearing for the mother and the children was held on January 17, 2015. The decision has been reserved.
[34] The mother retained counsel in the Hague application. That case came before me on January 9, 2015 for a case conference. It was adjourned, on consent, until February 17, 2015, for the mother to file her Answer and for the father to file any Reply.
[35] On February 12, 2015, the mother was charged and arrested in Toronto following an altercation with a neighbor over a parking spot. The mother was charged with assault, assault with a weapon and providing a false name to the police. She was incarcerated.
[36] The children stayed with a babysitter for one night, but she was unable to continue to care for the children.
[37] The Family Service Worker from the society (the Family Service Worker) deposed that she attended the mother's home and found it to be dirty and in disarray, to the point that much of it was uninhabitable.
[38] The children were apprehended by the society on February 13, 2015.
[39] The mother was released from jail on February 13, 2015 and is presently living in the home of a friend.
[40] The Hague application came before this court on February 17, 2015. Counsel for the mother and the father sought an adjournment, indicating that they needed to look into the recent child protection developments. The case was adjourned until March 6, 2015.
[41] The society issued this protection application on February 18, 2015. They seek an order finding the children to be in need of protection pursuant to clauses 37(2)(b) and (g) of the Child and Family Services Act (the Act), and a disposition that the children be placed in the care of the society, for a period of six months. Clauses 37(2)(b) and (g) of the Act read as follows:
Child in need of protection
37(2) A child is in need of protection where,
(b) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person's,
(i) failure to adequately care for, provide for, supervise or protect the child, or
(ii) pattern of neglect in caring for, providing for, supervising or protecting the child;
(g) there is a risk that the child is likely to suffer emotional harm of the kind described in subclause (f)(i), (ii), (iii), (iv) or (v) resulting from the actions, failure to act or pattern of neglect on the part of the child's parent or the person having charge of the child;
[42] The same day, the society brought this motion. The motion was adjourned to permit responding material to be filed. This court made a temporary, without prejudice order, that the children remain in the care of the society, with supervised access to the mother.
[43] The temporary care hearing was argued on February 26, 2015. The father was able to come to Canada from North Carolina to attend the hearing.
Part Three - Legal Considerations on a Temporary Care and Custody Motion
[44] The legal test for the court to apply on this motion is set out in subsections 51(2), (3), (3.1) and (3.2) of the Act which read as follows:
Custody during adjournment
51(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.
Terms and conditions in order
(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's 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.
[45] At a temporary care and custody hearing, the onus is on the society to establish, on credible and trustworthy evidence, that there are reasonable grounds to believe that there is a real possibility that if a child is returned to the respondents, it is more probable than not that he or she will suffer harm. Further, the onus is on the society to establish that the child cannot be adequately protected by terms or conditions of an interim supervision order. See: Children's Aid Society of Ottawa-Carleton v. T., [2000] O.J. No. 2273 (Ont. Sup. Ct.). Simply stated, this is a two-part test (the two-part test) that the society has to meet.
[46] A court must choose the order that is the least disruptive placement consistent with adequate protection of the child (subsection 1(2) of the Act). See: Children's Aid Society of Hamilton v. B.D. and F.T.M., 2012 ONSC 2448.
[47] The degree of intrusiveness of the society's intervention and the interim protection ordered by the court should be proportional to the degree of risk. See: CCAS of Toronto v. J.O.1, 2012 ONCJ 269.
[48] Subsection 51(7) of the Act permits the court to admit and act on evidence that the court considers credible and trustworthy in the circumstance. In determining what evidence is credible and trustworthy, the evidence in its entirety must be viewed together. Evidence that may not be credible and trustworthy when viewed in isolation might reach that threshold when examined in the context of other evidence. See: Family and Children's Service v. R.O., 2006 O.J. No. 969 (Ont.C.J.).
Part Four – Charge of the Child
4.1 Legal Considerations
[49] The Act gives priority under clauses (a) and (b) of subsection 51(2) of the Act to the person who had charge of the children prior to society intervention under Part III of the Act.
[50] The mother submits that she was the sole person having charge of the children at the time of the apprehension. The father says that he also had charge of the children. The society agreed with the father.
[51] In paragraphs 22-32 of Children's Aid Society of London and Middlesex v. S.D., [2008] O.J. No. 3796, Justice R.J. Harper does a thorough review of the case law related to who has charge of a child as follows:
22 The structure of s. 51(2)(a) and (b) directs the court to return a child to the "care and custody of the person who had charge of the child immediately before intervention" without supervision or with supervision and terms and conditions. The court cannot keep the child in the care of the Society "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)." [my emphasis]
23 The term "charge" is not defined in the CFSA. It has been interpreted in at least three cases. In Children's Aid Society of Algoma v. Teena G. et al., 125 A.C.W.S. (3rd) 1020 (Ont. C.J.), Kukurin J. considered the definition of "charge." He made the following comment at para. 15: "... 'Charge' has connotation of authority and responsibility. 'Charge' of a child suggests some established relationship, not something transient or temporary. ..."
24 Kukurin J. did not think that simply having possession of a child was sufficient to bring that person within the meaning of the term "charge".
25 In Children's Aid Society of Ottawa v. H.C. and C.C., 127 A.C.W.S. (3d) 1159 (Ont. Sup. Ct.), Blishen J. also considered the meaning of the term "charge" in s. 51. Blishen J. found that "charge" was linked to the term "care and custody" within s. 51:
[14] In order to apply the appropriate test on this care and custody motion, it is necessary to determine who was "the person who had charge of the child immediately before intervention". The word "charge" is not defined under the Child and Family Services Act. However, a close reading of the legislation makes it clear that the term "charge" is linked to the term "care and custody" as outlined in clauses 51(2)(a) and (b), which state that the child
... remain in or be returned to the care and custody of the person who had charge of the child immediately before intervention.
26 Blishen J. stated that questioning who had "charge" of the child is akin to questioning who had "care and custody." Like Kukurin J., Blishen J. was of the opinion that there had to be an active relationship of care and not mere possession of the child.
27 Most recently, in Children's Aid Society of Toronto v. S.A., 2008 ONCJ 348, [2008] O.J. No. 3110 (Ont. C.J.), Spence J. considered the same issue. In that case, Spence J. splits the idea of "charge" and "custody." He adopts a definition of "charge" that is grounded in actively caring for the child and potentially distinct from the legal notion of "custody." Spence J. ultimately determines "charge" to mean an active, caring relationship. He states:
[48] However, clause 51(2)(a) of the Child and Family Services Act does not talk about returning the child to the person who had "custody" but rather, returning the child to the person who had "charge" of the child. There clearly is a difference between the meaning of "custody" and "charge". There could be many instances where one person has custody of the child and another person has "charge" of that child.
28 Spence J. gives an example of his reasoning to demonstrate the difference. He describes a situation whereby a single mother, who has custody and charge of a child, informally relinquishes that child to an aunt for care purposes. After several months in the aunt's care, for example, the child would no longer be in the mother's "charge" but rather the aunt's. Spence J. was of the view that for a person to have "charge" of a child there must be evidence of active care and responsibility.
29 I agree with the reasoning of Spence J. I am of the view that there must be evidence that a person has an active relationship with the child that includes care and responsibility. It is something more than physical possession or limited incidents of care.
30 I am of the view that s. 51 is structured in the manner that it is because the statute establishes a priority to the person who may have had the most active and responsible involvement with the child immediately before the apprehension.
31 If the court determines that the evidence discloses that there is a person who had the charge of the child immediately before intervention, then the court must return the child to that person unless 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 that provides for a return on terms (s. 51(3)).
32 It is possible that more than one person had the charge of the child immediately before intervention and they subsequently compete for the return of the child to them at a temporary care hearing. In that case the court must consider the risk of harm of returning the child to either person.
[52] The test in subsection 51(2) is designed to set up a rigorous standard for society intervention in the life of a person who has charge of a child. The court does not and should not lightly eliminate the subsection 51(2) rights of the person who may have had charge of the child. See my comments in: Catholic Children's Aid Society of Toronto v. W.I., [2014] ONCJ 62.
[53] The first part of the two-part test under subsection 51(3) of the Act only has to be met against one of two parents who had charge of the child. Either will do. It is a low threshold. See: Children's Aid Society of Algoma v. S.M.M., 2014 ONCJ 12.
4.2 Analysis
[54] The court finds that the mother had charge of the children as of the date of their apprehension. The children have always lived with her. She has been the caregiver actively caring for them.
[55] The court finds that the father also had charge of the children as of the date of their apprehension, despite the fact that he was not actively caring for them. He was granted temporary custody of the children by the North Carolina court on January 13, 2014. On March 31, 2014, that court ordered law enforcement officials to deliver the children to the father.
[56] The father had legal custody of the children as of the date of the apprehension. He had not relinquished those rights. To the contrary, his rights were frustrated by the self-help remedy exercised by the mother. His ability to be placed on an equal footing with the mother in a subsection 51(2) hearing should not be compromised by her actions.
[57] This court agrees with the comments of Justice Robert Spence, who writes in paragraph 50 of Children's Aid Society of Toronto v. S.A., 2008 ONCJ 348:
[50] In the present case, I have found as a fact that the mother acted unilaterally to go underground with the child. She intentionally prevented the father from seeing the child and from exercising his parental authority or custodial rights over the child. In my opinion, one parent cannot acquire "authority and responsibility" over a child, to the exclusion of the other parent, by extra-legal, unilateral means, without the consent or acquiescence of the other parent.
[58] Justice Spence found that both parents had charge of the child. He said that it would be contrary to public policy to exclude the father from this status, based on the mother's unilateral action. This analysis also applies to this case.
Part Four - The First Part of the Two-Part Test
[59] The society met their onus of establishing that they had reasonable grounds to believe that if the children are returned to either of the parents, it is more likely than not that they will suffer physical harm or emotional harm. With respect to the mother, this finding was not based on any one incident or risk factor, but rather on an accumulation of risk factors. Simply put, there are too many "red flags" that these children are presently at risk of physical harm (due to neglect) or emotional harm if placed in her care.
[60] The evidence that supports this finding against the mother is as follows:
a) The mother's residence was in a state of disarray, with much of it uninhabitable for the children. Ke. J. told the Family Service Worker, "Mom doesn't really like cleaning". The mother explained in her affidavit that the residence was in this condition because she was planning to move. For reasons that will be set out later, the court did not find the mother's evidence to be reliable.
b) The children's school had reported concerns about neglect of the children in November of 2014. The school was concerned about Ki. J. attending at school with a bruised, scraped and swollen eye. The school called the mother as Ki. J. was falling a lot and it was concerned that he had a concussion. The mother did not come to the school as requested, stating that she was busy at work. She also did not provide the school with an explanation about Ki. J.'s injury.
c) The school reported that Ki. J. often came to school dressed inappropriately for the weather, did not wear socks, and that his shoes had holes in them, causing his feet to get wet.
d) The school reported that the children did not bring nutritious lunches to school and Ki. J. had complained about being hungry. There were three occasions when a teacher opened Ki. J.'s backpack and found rotting food inside.
e) The school reported that there was an occasion where Ki. J. soiled his pants and the dirty clothing had been left in his backpack for several days.
f) The school reported that Ki. J. was frequently late for school. They asked the mother to come in to discuss this. The mother, in their view, was defensive and asked that Ki. J. be removed from the teacher's classroom. The mother then decided to change the children's school.
g) Ke. J.'s current teacher reported to the society that Ke. J. reported conflict in the home between the mother and his older brother (Ke. J. repeated this to the Family Service Worker). Ke. J. reported that this conflict upset him. The teacher also reported that Ke. J. was frequently late for school, without explanation, his homework is not always completed and he often appears unhappy at the beginning of the school day.
h) The Family Service Worker deposed that the children are very anxious that she not let the mother know what they say to her. When the Family Service Worker asked the children what she should say to their mom when she spoke with her, Ke. J. asked her not to tell the mother that they had spoken because "she'll be really mad and punish us". It is very concerning that the children feel this vulnerable about their mother. The Family Service Worker had to redirect the mother at an access visit as the mother aggressively questioned the children about what had been said to them about their father. She told the children that they did not have to speak to their father or answer any questions that anyone asked them. The mother also wanted to discuss adult matters with the Family Service Worker in front of the children.
i) The evidence, at this point, indicates that there are reasonable grounds to believe that the mother's level of aggressiveness and confrontation create a risk of emotional harm to the children. Examples include:
a. The recent assault charge. The police reported that the mother choked and assaulted the neighbor. They also reported that the mother was highly uncooperative and initially provided a false name to them. The children reported to the Family Service Worker that they witnessed this incident. Ke. J. told her that the incident made him feel sad.
b. The current school principal reported to the society that the mother can be aggressive in her tone and constantly threatens to involve lawyers.
c. The prior school of the children also reported to the society that the mother was defensive and difficult to deal with.
d. The mother claimed that she had no criminal record in the United States. The father produced evidence (that needs to be further investigated) that the mother was jailed for 3 days for an assault in New Jersey in 2009.
e. Ke. J. reported to both the Family Service Worker and teacher about conflict and cursing between the mother and his older brother. He reported his distress about this.
f. The father was granted a Domestic Violence Protective Order against the mother in North Carolina.
g. The mother advised a society worker that Ki. J.'s former teacher was a "psycho" who was obsessed with Ki. J. and was setting her up. She expressed that there was a conspiracy against her.
j) The evidence creates concerns about the mother's judgment. It is one thing when it is her word against the father's. However, the mother sets out a long list of people who she believes have tried to wrong her, including:
a. Durham Child Protective Services.
b. The Durham Police Department.
c. The North Carolina Judge. The mother claimed that the judge is involved in corruption, with the implication that this is what happened in her case.
d. The children's previous teacher.
e. The father and his girlfriend.
f. The woman she is charged with assaulting.
[61] The first part of the two-part test has also been made out against the father. The children express fear of him – they view him as a bad man. They are consistently stating that they want no contact with him.
[62] Ke. J. attended for therapy at Aisling Discoveries in Toronto for 13 sessions during 2014. The mother had expressed concern that Ke. J. was caught rubbing inappropriately against his younger brother. Ke. J. reported to the Aisling therapist inappropriate sexual conduct by the father towards him. He told the therapist that the father had told him not to tell his mother about it. It appears that Ke. J. made similar reports to DSS in December of 2013, as on December 15, 2013, in their Safety Assessment, they asked the mother not to permit the children to have contact with the father without notice to them.
[63] Ke. J. also told the therapist about his fear of the father. He told her that he thinks that his father will come and hurt them again. The therapist reported that she provided him with coping strategies for his worries.
[64] Whether or not the father acted in a sexually inappropriate manner to Ke. J., the reality is that Ke. J. now believes this. Both children, whether justified or not, believe that the father is dangerous. Ke. J. recently said to the Family Service Worker, "My dad is not allowed to come here because he's not good. He's never going to bother us again. That's what mommy doesn't want to happen. He does bad stuff". He also told the Family Service Worker, "We moved because he did something gross to me"…..he did the nastiest thing ever".
[65] The evidence indicates that there would be a significant risk of emotional (at a minimum) harm to the children if they were returned to the father, without a therapeutic reintroduction.
[66] The court was concerned about the father's position on reintroduction. He submitted that the children would have no problem resuming contact with him. This demonstrated a lack of insight into what the children feel and have experienced.
[67] The court was also concerned about whether the father has been forthcoming about his criminal history. He advised the society worker on February 18, 2015, that he had been jailed for approximately four years for drug possession and that he had no other criminal history.
[68] The mother's counsel was quite resourceful in quickly obtaining evidence that these statements were false. The evidence indicates that the father was convicted of selling cocaine and heroin. He was sentenced to seven years in jail. He appealed his conviction and the appeal was dismissed.
[69] The mother also provided evidence that, in 2014 alone, the father was convicted in North Carolina of DUI, Aggressive driving and twice for speeding. There was also evidence produced of a prior conviction in New Jersey of operating a motor vehicle under the Influence of Liquor or Drugs.
Part Five – The Second Part of the Two-Part Test
[70] The next issue is whether the children can be adequately cared for by either parent with terms of supervision.
[71] There are presently no terms of supervision that could protect the children from emotional harm if placed with the father. At this point, the evidence indicates that they would likely suffer emotional harm if placed in his care without a therapeutic process. The real issue at this stage is whether they should have any contact with him.
[72] In assessing this part of the test with respect to the mother, the court considered that:
a) The children have expressed their love for the mother and desire to return home to her.
b) The mother has been observed as being loving and affectionate with the children on the access visits.
c) The children may suffer emotional distress being separated from the mother and their older brother.
d) The mother has some family and community supports. She also has employment in Ontario. She is awaiting her Convention Refugee decision.
e) The mother did not leave the jurisdiction when served with the Hague application. She retained a lawyer and defended it.
f) The evidence has not been tested in cross-examination. The court is very aware that this can often provide greater clarity of what is actually happening with a family. The mother tells a very different narrative than the society and the father.
g) We are at very preliminary stage in this case. The society has had the case for a limited amount of time and there are multiple allegations between the parties that the society will need to investigate further.
h) A child protection case cannot be used as a pretext to keep children in care while a Hague Convention case is pending. The decision to keep children in care must arise from the child protection issues alone.
[73] The mother says that she would comply with any terms of supervision. The society and the father argue that it is more probable than not that the mother would not comply with terms of supervision. They submit that there is a real possibility that the mother will once again remove the children from the jurisdiction and the society will be unable to protect the children from the protection concerns set out above. They submit that the need to enforce the supervision order arises independently from the Hague Convention case.
[74] The evidence, at this point, supports the position of the society and the father. Supervision orders should not be made if the parent is ungovernable. See: Windsor-Essex CAS v. L.H., 2004 ONCJ 196, [2004] O.J. No. 3889 (OCJ).
[75] The mother has already demonstrated that she will use self-help to accomplish her objectives. When she didn't agree with the decisions of the North Carolina court, she did not appeal them. Instead, she chose to disobey the court orders and fled with the children to Canada.
[76] It is clear that a major reason that the mother chose to come to Canada was because she believed the father could not enter Canada, due to his criminal record.
[77] The mother argued that she has shown good faith by participating in the Hague Convention process. While she did not leave the jurisdiction when served with the application, the court notes that the pressure on the mother has increased significantly since she was served with the Hague application. She is now facing criminal charges and is involved in child protection proceedings. The motivation for her to leave the jurisdiction is now much higher.
[78] The mother states that she is prepared to deposit the children's birth certificates with the court. This gives the court little assurance that the children will remain in the jurisdiction. The mother has proven to be resourceful. She was able to bring the children to Canada despite neither her nor the children having passports.
[79] The mother's extended family lives in the United States. Her mother, who she proposes as an alternative plan, lives in New Jersey. The mother deposed that she is receiving advice from a friend who is a police officer. He resides in Pennsylvania. These appear to be logical destinations where she might take the children.
[80] The evidence indicated that the mother is generally not cooperative when dealing with service providers, unless they accept her point of view. She accused the Durham authorities of conspiring against her and left the jurisdiction. She accused the children's school of conspiring against her and moved the children from their school. She provided minimal cooperation to the society when they investigated the school's report. She gave a false name to the police when arrested. The Family Service Worker reported that in the first seven days of her investigation, the mother was uncooperative for the first 4 days and then became cooperative.
[81] The mother's lack of cooperation is exacerbated by evidence of dishonesty. For example:
a) She admits giving the police a false name when she was arrested.
b) She claimed to have no criminal record in the United States. The preliminary evidence indicates that she had a criminal conviction in 2009 in New Jersey for assault.
c) She advised the children's school that she was in the Witness Protection Program. This is not the case.
d) She claimed that the children did not witness the incident where she was arrested. Both children said they saw it and their mom "was really mean, even though she really doesn't act like that".
e) The mother told the Family Service Worker that she had spoken to staff at the children's present school and they had denied making statements that the Family Service Worker had attributed to them in her affidavit. The Family Service Worker contacted the school principal. The principal confirmed to her that no staff had told the mother that statements attributed to them in the court documents were incorrect.
f) She told the Family Service Worker that she had been present at the Hague Convention court appearance on February 17, 2015. The mother did not attend in court that day.
[82] The court, at this stage, does not trust the mother to comply with supervision terms or to remain in the jurisdiction with the children if they are placed in her care.
[83] The court finds that the society has met the second part of the two-part test against both parents. Unfortunately, the least intrusive alternative at this time, consistent with the safety and protection of the children, is to place them in the temporary care of the society.
Part Six – Community Options
[84] Prior to placing children in society care, the court must first decide if it is in the best interests of the children to be placed in the care of a family or community member.
[85] The mother and father have both proposed their mothers as alternative caregivers.
[86] The court finds that it is not in the best interests of the children to place the children with either grandparent today. Both grandparents live outside of Canada. The society has not had any opportunity to assess if they are appropriate caregivers for the children or to evaluate their insight into the risk concerns and their ability to protect the children. There is a real concern that they may merely serve as conduits for the parents to have unsupervised contact with the children. The children have already experienced too much instability in the past year and it is important that the next placement be the right one for them. This finding is without prejudice to a future determination by the court after the grandparents' respective plans have been properly assessed.
Part Seven – Access
[87] Subsection 51(5) of the Act provides that where an order is made under clause 51(2)(b) or (c), the court may order access on any terms that it considers appropriate. In determining what order is appropriate, the court should consider the paramount purpose of the Act, being the best interests, protection and well-being of the children and the secondary purposes of maintaining the integrity of the family unit, assisting families in caring for their children and recognizing the least disruptive action consistent with the best interests of the children (subsections 1(1) and (2) of the Act). In assessing best interests, the court should consider the relevant factors set out in subsection 37(3) of the Act. I have done this.
[88] The court finds that due to the protection and flight concerns about the mother, it is imperative that her access remain fully supervised at this time. The court strongly suggests that access be supervised by experienced society staff that have the skill to redirect the mother if she begins to inappropriately question the children at visits. Access shall take place a minimum of two times per week for two hours each visit.
[89] The issue of access for the father is problematic. It is important that courts respect decisions from reciprocal jurisdictions. There are limited exceptions to this principle set out in the Children's Law Reform Act. The North Carolina court has made orders, first granting the father access to the children, and then when the mother left the jurisdiction, granting him temporary custody of them. However, the evidence presented to this court at this stage indicates that there have been material changes in circumstances since the North Carolina orders were made. The children are consistently saying that they are afraid of their father and do not want to see him.
[90] The court recognizes that the father's relationship with the children may have been unjustifiably compromised by the mother's actions. However, courts have to determine access from the perspective of the children, not the parents. Blindly starting access at this time runs the risk of causing severe emotional harm to the children. It is very likely that a therapeutic approach will be required to reestablish the relationship with the father.
[91] It would be very helpful for the court to have expert assistance on this issue. The court would like the society to expedite obtaining a psychological assessment for the children and expert guidance as to when, how, or even if, access should be reestablished with the father.
[92] The court emphasizes that it is important to obtain this information as soon as possible. If the children's feelings about the father prove to be unwarranted, the court is concerned about these perceptions becoming further entrenched.
[93] There will be an order that the father have no access to the children pending further court order.
[94] The society will have the discretion to permit supervised access by any other family members.
Part Eight – Conclusion
[95] A temporary order will go on the following terms:
a) The children shall remain in the temporary care and custody of the society.
b) The mother's access to the children shall be fully supervised at the society offices. The visits shall take place a minimum of twice per week for two hours. The society will have permission to terminate any visit early if the mother, in their opinion, is acting inappropriately with the children.
c) The father shall have no access to the children pending further order.
d) The society has the discretion to permit supervised access by any other family member.
e) The case is adjourned until March 6, 2015 at 2 p.m. for a case conference.
[96] The court recognizes that we are at a very early stage of this case. The society has just begun their investigation. As the case proceeds, more information will be obtained which will clarify many of the issues presented. This information may reduce or increase the court's protection concerns.
[97] There is a lot of work for the society to do, including:
a) It needs to work with the parents and develop a better understanding about them.
b) It needs to contact DSS and obtain far more detail about their investigation.
c) It needs to understand the sequence of the DSS investigations and what was reported to the mother and to the North Carolina court. The North Carolina court indicated that it was advised on December 4, 2013 that DSS did not verify abuse concerns. However, there is the DSS Safety Assessment dated December 15, 2013, telling the mother not to permit the children to have contact with the father.
d) It needs to contact the police in North Carolina and obtain details about their investigation. It appears that the mother dealt with the police departments in both Durham and Raleigh.
e) It needs to ascertain the criminal histories of the mother and the father in the United States.
f) It needs to ascertain if the mother or the father have had any prior child protection history in the United States.
g) It needs to speak with the Aisling therapist who saw Ke. J.
h) It needs to develop a better understanding of the children and obtain expert assistance to address the issue of access with the father.
i) It needs to evaluate the kin plans of the maternal grandmother and the paternal grandmother.
[98] The society should also contact DSS and determine if they are prepared to have the children placed in their care, pending a hearing in North Carolina (if the court eventually determines that the children should be returned to North Carolina in the Hague Convention case). Whether or not the society supports this position, the trial judge should know whether this is an option.
[99] There is much that the mother can do. The mother needs to establish that she can be trusted. She should:
a) Demonstrate that she can work cooperatively, openly and honestly with the society.
b) Demonstrate that she can act appropriately on access visits. She shouldn't be questioning the children at visits about the father or their foster home. She should not engage in discussions about the case in front of the children.
c) Engage in counseling to understand the impact of aggressive behaviour on children.
d) Establish stable and suitable accommodation for the children.
[100] The father will need to have patience. It would also be helpful for him to attend with a skilled parenting professional to develop some insights into the challenges he may face in developing a relationship with the children and strategies he may use to facilitate that relationship once it is started.
[101] The goal in this case should be to have the children returned to their family.
[102] I will case manage both this case and the Hague Convention case. Any final hearing in these actions will be heard by another judge, as I have expressed strong preliminary views, including about the parties' credibility. On the next appearance, I will want counsel to address the following issues:
a) In the Hague Convention case, was the father exercising custodial rights under the laws of North Carolina at the time of the children's removal? If not, the application has no merit and the father will have to decide whether he should exercise different remedies under the Children's Law Reform Act. Counsel should provide the court with the relevant law from North Carolina.
b) If the father was exercising custodial rights at the time of the children's removal from North Carolina, how should the court proceed with the respective cases? In particular:
1) Is the Hague Convention case stayed by virtue of section 57.2 of the Act?
2) If the Hague Convention case is stayed, should leave be granted for it to continue pursuant to section 57.2 of the Act?
3) Since the children are in the care of the society, should the society be added as a party in the Hague Convention case? If not, what role, if any, should it have in the Hague Convention case?
4) Should the Hague Convention case be heard before the child protection case?
5) Are there any restrictions to both cases proceeding together, or consecutively, with the evidence on one case applied to the other?
c) Despite the young age of the children, should counsel be appointed for them?
d) Should the court arrange a telephone conference call (with all counsel present) with a judge from the North Carolina court to discuss procedural issues?
[103] Lastly, the court appreciates the excellent presentations by counsel on this difficult motion.
Justice S.B. Sherr
Released: March 2, 2015