WARNING

The court hearing this matter directs that the following notice 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 48(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:

45.— (7) Order excluding media representatives or prohibiting publication.

The court may make an order,

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

Ontario Court of Justice

Date: January 26, 2015

Court File No.: C8001/15

Between:

Children's Aid Society of Toronto Applicant

— and —

C.D. and S.F. Respondents

Before: Justice Roselyn Zisman

Heard on: January 20, 2015

Reasons for Judgment released on: January 26, 2015

Counsel:

Nicole Horowitz — counsel for the applicant society
Barry Nussbaum — counsel for the respondent C.D.
S.F. — self-represented

Zisman J.:

Introduction

[1] This is a temporary care and custody hearing wherein the society is seeking to place the children N.D.F. born […], 2013 ("N.") and H.D.F. born […], 2014 ("H.") on the temporary care and custody of the society with access to the parents with access at the discretion of the society.

[2] The parents seek an order returning the children to their care subject to supervision.

Background

[3] The respondent C.D. ("mother") who is 27 years old is the mother of the children. She has another child D.D. who is 10 years old who resides with the paternal grandmother but visits with the mother.

[4] The respondent S.F. ("father") who is 27 years old is the father of the children.

[5] The parents reside together and the mother is the children's primary caregiver.

[6] The society became involved with the family in June 2014 due to a referral from the maternal grandmother expressing concerns about the state of the home and about N.'s well-being and development.

[7] The society worked with the parents over the next 6 months due to ongoing concerns about the state of their home, concerns regarding N.'s developmental delays, the lack of stimulation and due to him being underweight. Although there were improvements in the state of the home these were not consistent and there continued to be concerns about the parents not providing ample stimulation for the children.

[8] On December 21, 2014, the police executed a search warrant due to concerns of drug trafficking by both parents. The police reported to the society that they had attended the family home and found 42 grams of marijuana, scales, drug paraphernalia and packages marijuana ready for sale in locations accessible by the children. The police recovered $300 in cash. The police also reported that the home was cluttered and very dirty, there were dog feces on the floor and extremely foul odours in the home and the children appeared dirty. Only the father was charged with possession of marijuana and possession for the purpose of trafficking and possession of the proceeds of crime as he took sole responsibility.

[9] On January 2, 2015 I made a without prejudice order placing the children in the care of the society with access to the parents at the discretion of the society at a minimum of two times a week and to be semi-supervised.

[10] The temporary care and custody motion was argued before me on January 20th, 2015. The following are my reasons for judgement on that motion.

Statutory Framework and Applicable Legal Consideration of a Temporary Care and Custody Motion

[11] 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

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.

(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).

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

[13] The court must make an order that is the least disruptive placement consistent with adequate protection of the children in accordance with subsection 1(2) of the CFSA.[2]

[14] The degree of intrusiveness of the society's intervention and the temporary protection ordered by the court should be proportional to the degree of risk.[3]

[15] Subsection 51(7) of the CFSA permits the court to admit and act on evidence that the court considers credible and trustworthy in the circumstances. In determining what evidence the court considers to be credible and trustworthy, the evidence must be viewed together. Evidence that may appear not to be credible and trustworthy when viewed in isolation might reach that threshold when examined in the context of other evidence.[4]

[16] A Society seeking an order for temporary Society care at this early stage of a case has only to demonstrate that it has reasonable grounds to believe that there is a protection risk for the children that justify Society intervention.[5] The burden on the Society at this stage does not go as high as showing that on the balance of probabilities there is an actual risk to the children in the parent's care.[6]

[17] It is important not to judge a parent by a middle-class yardstick, one that imposes unrealistic and unfair middle-class standards of child care upon young parents, provided that the standard used is not contrary to the children's best interests.[7]

[18] Subsection 51(3.2) of the CFSA applies to an order being made in accordance with clause 51(2)(b) for a temporary supervision order.[8] The onus of proof or criteria are the same when the society is requesting a non-removal order pursuant to clause 51(2)(b) of the Act or a removal order pursuant to clauses 51(2)(c) and (d) of the CFSA. The issue to be determined in making the non-removal order under clause 51(2)(b) is whether or not the society has reasonable grounds to believe that there is a probable risk that the children will suffer harm if reasonable terms and conditions of a supervision order are not imposed.[9]

Application of Facts to the Law

[19] As indicated there is a two part test on a temporary care and custody motion that must be met by the society, namely whether or not there is a likely risk of harm and if so, can the children be adequately protected by terms and conditions in a temporary supervision order.

Is there a risk of likely harm?

[20] I find that there is overwhelming evidence that there is a risk of physical and emotional harm to the children based on the following evidence that I find is trustworthy and credible:

a. At the time the society first became involved it confirmed that the family's apartment was extremely cluttered, unsafe and unhygienic. The home was observed to have ashtrays full of cigarettes, animal feces on the floor and was excessively cluttered with bags, boxes and other items that made movement difficult.

b. The society has attempted to work voluntarily with the family since June 2014 to address concerns about the conditions of their home. Although on scheduled visits the society worker noted improvements, on unscheduled visits many of the same issues persisted. There is an ongoing risk that the parents cannot sustain any improvements in the condition of their home. For example, when the society worker attended at the parents' home on December 10th she had no concerns about the condition of the home but when the police attended at the home on December 21st they described the condition of the home as a "pig pen". There was little food in the refrigerator, cockroaches everywhere, dishes piled up in the kitchen and baby bottles half full of formula. A dog, described as a Doberman, had been locked in the bathroom and one of the bedrooms had feces all over the floor and the stench of dog feces was overwhelming.

c. Based on the mother's affidavit and the number of times that the society worker needed to warn the parents about the risk to the children, I find that the parents do not appreciate the risk to the children of living in a home with such clutter, infestations by ants and rats and with dirty counters and dirty dishes that can attract insects. I reject the submission made by mother's counsel that the mother should not be judged by middle class standards as the condition of this home, is by any standard, simply unacceptable.

d. The mother in her affidavit states that she has been "a great caregiver" to the children and that she kept her home clean and made sure the children were living in a hygienic environment. Nothing could be further from the truth. Her comments show a concerning lack of appreciation of the emotional and physical needs of the children and in particular the needs of the N. that were clearly not being met.

e. The mother admitted to use of marijuana on a daily basis including when in a caregiving role as a coping mechanism. She stated that she had been diagnosed with depression in the past and had been prescribed medication but did not like how it made her feel. The father denied use. The society worker previously had expressed suspicions about the number of people coming and going from the parents' home. The father has now been arrested for drug trafficking and possession of marijuana. Despite the drugs and drug paraphernalia being in plain view and within locations accessible to the children the mother denies any knowledge of drug trafficking from their home. In the mother's affidavit she is focused on the police taking her $90 and the father intends to challenge the search warrant that the police executed to gain entrance to their home. There is no acknowledgement of the potential danger to the children of leaving drugs around the home or the potential risk of danger from a drug transaction going badly or from a multitude of unknown people attending at the home.

f. At the time of the society's initial involvement, N. was not up to date on his immunizations; N. who was then 14 months was developmentally delayed and functioning at a 6 to 8 month old level and he was underweight. The parents admitted that he was spending 2 to 3 hours a day watching television. The parents seemed unaware that they were not stimulating him. He also had a flat head that is attributable to being left for lengthy periods of time in one position.

g. The parents did co-operate to some extent with service providers and follow directions to provide more nutritious meals for N., establish a routine for feeding, follow through with the recommendations to obtain a paediatrician and provided more opportunities for stimulation. N. made gains rapidly which the society worker deposes suggests that his delays may be related to a lack of stimulation.

h. However, the parents were repeatedly warned about the children not receiving enough stimulation but the children have been found in the bedroom with monitors facing them. Despite being warned about not propping a bottle and holding H. to feed her, she was found with a propped bottle in her crib. The parents did not follow through with taking the children regularly to an Ontario Early Years Centre and only attended two times since it was recommended in June 2014. The mother did not follow through promptly with arranging for N. to attend daycare, to be assessed for speech and language delays and for physiotherapy. She has cancelled appointments for the occupational therapist and the public health nurse. At times, the parents have been resistant to the various service providers attended at the home.

i. At the time of the society's initial involvement the mother advised had not filed her income taxes that in turn impacted on her ability to obtain subsidized daycare for N. or to obtain the child tax benefits that impacts on her ability to meet the children's needs for proper food, clothing etc. It is not clear at this time the source of the father's income or his employment.

Can the children be adequately protected at this point in time by terms and conditions of supervision?

[21] I find that the children can be adequately protected by strict terms and conditions of supervision based on the following facts:

a. N. is now up to date on his immunizations, he has gained weight and the parents followed through with the society worker's recommendation to obtain a paediatrician.

b. The mother deposes that she has stopped smoking marijuana and has arranged to begin counselling to help her deal with her stress and to find better ways to cope. She also states that she has told the society worker that she is willing to have a hair follicle test but the worker has not arranged it.

c. The mother deposes that they have given away one of their dogs and the other one is not allowed in bedrooms or closets but there is no information about what steps the parents have taken to ensure the dog does not defecate in the home. However, this concern can be managed with a condition that the parents not have any pets in the home.

d. The parents are capable of ensuring their home is clean and free of clutter some periods of time and the challenge is to ensure that they sustain the improvements they make. The parents have removed or had repaired some of the safety concerns previously noted by the society.

e. The father is facing criminal charges for possession and trafficking in drugs. I make the reasonable assumption that while on bail he would not jeopardize his freedom by engaging in any illegal activities. Any concern about ongoing drug use can be managed by a term of supervision including drug testing. Any concern about the people coming and going from the parents' home or concerns about who is caring for the children can also be dealt with by terms of conditions.

f. The mother deposes that she has been responsive to directions for changes in N.'s care and has followed recommendations to attend the Ontario Early Years Centre and was taking steps to enroll him in daycare. The mother deposes that N. is on a wait list for speech therapy and he has seen an occupational therapist. However, the mother has not consistently followed up on these recommendations but again terms of supervision could require regular attendance and follow up on services.

g. The mother deposes that she is interested in attending parenting courses but blames the worker for not providing her with any referrals.

h. The mother deposes that she has a large support group to assist her. She attaches to her affidavit a letter from a couple who she proposes can assist her but that letter states among other things, that "A messy house is a happy house". Although I put no weight on such letters as they should not be attached to affidavits,[10] it does raise the concern about the standards that seem to be acceptable to the people that may be caring for the children when the parents are not available. However, this concern can also be dealt with by terms of supervision.

i. Prior to the arrest of the father, the society was planning to commence a Protection Application seeking a 6 month supervision order. The state of the home as described by the police is concerning and should not be minimized but the parents now facing the reality that the children have been apprehended and this may be the wake-up call they need to maintain a proper home environment.

[22] I have considered that the children are extremely young and the emotional impact of being removed from their parents and interrupting their bonding with the parents needs to be balanced against concerns about the risk to their safety in the care of their parents. Although the parents have had difficulty complying on a voluntary basis with the expectations of the society, they will now be aware that these recommendations will now be part of a court order. At this stage of the proceeding and based on the multiple concerns regarding the care of the children and their living conditions, I find that strict terms of supervision are necessary to protect these young and vulnerable children. With the passage of time and depending on how events unfold, it may be possible for that the conditions can be loosened.

[23] However, at this time I expect both parents to fully comply with all of the conditions. I caution the parents that any breach of this order could result in the children being again removed from their care with the long term prognosis that another return may be unlikely. This is the parents' opportunity to put their energy into proving that they can meet the needs of the children on a consistent and long term basis.

[24] I have considered that terms of a supervision order should be proportionate to the risks and wish to comment on the necessity of some of terms that I will be imposing.

[25] In this case, the mother who is the primary caregiver of the children has expressed her inability to cope with caring for the children full-time and caring for the pets in the home. The long standing concerns about the dogs not being properly cared for, defecating and the stench of the dog feces and urine are health hazards for young children just learning to crawl or walk. Although the parents have given away one dog, at this time I find that there should be no pets in the home as this will be one less issue the mother has to deal with.

[26] There is a concern that the parents and particularly the mother who is their primary caregiver have not provided N. with the stimulation he requires as a result he is exhibiting developmental delays and there is evidence that she is already not providing H. with the stimulation she requires. As the mother is not working outside of the home, I see no reason why she cannot take the children to an Early Years Centre several times a week until daycare is arranged or ensure that the mother attend every scheduled meeting with any service providers that are recommended.

Conclusion

[27] I find that there is a risk that the children are in need of protection. But pending the final determination of this matter, the least disruptive placement is with their parents and that the risk can be adequately protected by terms and conditions of supervision.

[28] There will be a temporary order as follows:

Temporary Order

The children N.D.F. born […], 2013 and H.D.F. born […], 2014 shall be placed in the care of their parents, C.D. and S.F. subject to society supervision, with specified terms and conditions, including:

(a) The society shall have the right to make announced and unannounced visits.

(b) The parents shall sign all necessary consents for the release of any third party information pertaining to the children and themselves including but not limited to, the children's paediatrician, the children's daycare provider, when applicable, service providers and any counsellors for the parents.

(c) The children shall continue to be cared for by their current paediatrician. The parents will ensure that the children's immunization is kept current and that they are seen on a regular basis by the paediatrician.

(d) The parents shall ensure that their home is, at all times, kept in an uncluttered, hygienic and safe manner. If there are any such concerns the society worker shall immediately notify the parents in writing of any concern and the parents will rectify that concern within 3 days.

(e) The parents shall provide the society with a list of any proposed caregivers. The children shall not be left with any caregiver unless that person has been pre-approved by the society.

(f) The parents shall ensure that both children attend an Ontario Early Years Centre, or any other similar program approved by the society or until daycare is arranged for the children, at a minimum of 3 times a week.

(g) The parents shall take immediate steps to apply for subsidized daycare and enroll the children in daycare. The society shall provide the parents with any supporting letters or other assistance they may require.

(h) The parents shall enroll in a parenting program dealing with child development for infants as approved by the society. The society shall immediately provide the parents with a written list of appropriate program with the necessary contact information.

(i) The parents shall fully co-operate with the public health nurse, occupational therapist or any other service provider that the society recommends. The mother shall ensure the children attend any scheduled appointments with any service provider for the children in or outside of the home. If an appointment needs to be re-scheduled due to illness of the children or the mother a make-up appointment shall be schedule within 1 week, depending on the availability of the service provider.

(j) Neither the parents nor anyone in the children's presence shall smoke or use any illegal substances. The parent shall not be under the influence of any illegal substance while in a caregiving role for the children. The parents shall co-operate with any drug testing requested by the society.

(k) The parents shall immediately make arrangements to remove all pets from the home and shall not bring any further pets into the home pending further court order.

Released: January 26, 2015

Signed: Justice Roselyn Zisman