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,
(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.
(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.
(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.
ONTARIO COURT OF JUSTICE
CITATION: Catholic Children's Aid Society of Toronto v. M.B., 2015 ONCJ 37
DATE: January 26, 2015
COURT FILE No.: C72105/14
BETWEEN:
Catholic Children's Aid Society of Toronto
Applicant,
— and —
M. B., J.K., and R.H.
Respondents
Before Justice Roselyn Zisman
Heard on January 20, 2015
Reasons for Judgment released on January 26, 2015
Rachel Buhler……………………………………………………counsel for the society
Karmel Sinclair……………………………counsel for the respondents M.B. and J.K.
Mary Reilly…………………………….counsel for the Office of the Children's Lawyer, legal representative for the child
Respondent R.H………………………….not yet served as whereabouts are unknown
Zisman J.:
Introduction
[1] This is a temporary care and custody hearing wherein the society is seeking to place the child A.B. born […], 2001 (“A.” or “the child”) in the care and custody of the society with access at the discretion of the society.
[2] The respondent M.B. (“mother”) is the child’s biological mother. She also has another child N.B. born […], 1995 (“N.”). The respondent J.K. (“step-father”) is the child’s step-father. They seek an order placing the child in the care of the mother pursuant to the supervision of the society.
[3] The respondent R.H. (“father”) is the child’s biological father but as his whereabouts are unknown he did not participate in this motion.
[4] The child’s counsel supports the position of the mother and step-father.
[5] The mother has had extensive involvement history with the Winnipeg Child and Family Services commencing in 1999 with respect to concerns that the mother was living with the father R.H. who was a convicted child sex offender and who was assessed as high risk to re-offend as he has not received any treatment. The relevant incidents are as follows:
a) In August 2009, N. was apprehended after the mother had been warned to allow no further contact between N. and the father and the child was seen alone with the father. N. was then returned subject to a supervision order;
b) In January 2000, N. was apprehended again when it was confirmed that the father was living with the mother. After the mother attended therapy and her therapist reported that the mother had improved her attitude and understanding of the risk posed by the father N. was returned to the mother’s care subject to a supervision order;
c) On […], 2001, A. was born but the mother did not list the father on the birth certificate. The file was closed as there were no community reports of concerns and no evidence to confirm an ongoing relationship between the mother and the father;
d) In June 2003, the file was re-opened as there was a referral regarding bruising on N. During the investigation it was learned that N. has slept over at the father’s home alone. N. was uncomfortable discussing her body parts or touching but reported the father had touched her front over her shirt and touched her back. Both N. and A. were apprehended. The children were placed with family members and the mother had access supervised by family members. A parenting capacity assessment was done that cautiously recommended the children be returned to the mother; the children were returned to the care of the mother in April 2004 subject to a one year supervision order;
e) In April 2005, the file was closed as it was reported that the mother had completed the therapy ordered as a condition of the supervisions order, the mother reported she had not had contact with the father since 2003 and there were no other protection concerns.
[6] The family moved from Winnipeg to the Peel region and soon after the Peel Region children's aid society received complaints and opened a file. The relevant incidents are as follows:
a) In December 2005, concerns were reported by a school/daycare provider of neglect of the children and also that N. reported that her sister A. was beaten by her mother and grandmother whenever she urinates in her clothes. After an investigation the file was closed but the society has not yet received any details about this investigation;
b) In January 2006, the file was re-opened due to N. reporting that her mother threw keys at her and they hit her head and a daycare provider noted a red mark and blood on her head. The incident was deemed an accident and the file closed.
[7] The Catholic Children's Aid Society became involved with the family in 2007. The relevant incidents are as follows:
a) In March 2007, the after-day care reported that A. who was then 5 years old and toilet trained was often having urination accidents, that the mother was frequently late picking up the children and would not respond to calls from the daycare. The file was closed in June 2007 at intake as the mother responded to the daycare concerns and responded positively to the society’s involvement;
b) In May 2008, the file was opened as N. had been absent from school for 60 days and late 16 days in 2008 school year, the mother refused to sign consents to work with the school social worker or have N. assessed despite the school’s recommendations. The children reported that the mother was working two jobs and they were being cared for by the mother’s boyfriend when the mother worked but they reported no concerns about the boyfriend. The children also reported that they had seen their father, R.N. the previous summer but denied being left alone with him. The file remained open but the worker was unable to contact the mother other as she was unresponsive to her efforts, the children were removed for the school before the end of the school year and the family moved from the jurisdiction. The file was transferred to the Peel Region children's aid society as the family was located when the children were registered for school in Peel region.
[8] The Peel children's aid society re-opened their file due to the transfer from the Catholic Children's Aid Society. The relevant incidents are as follows:
a) In September 2008, the Catholic Children's Aid Society had reported their continued concerns to the Peel children's aid society, namely the school’s concerns about N. and A.’s bedwetting. The Peel children's aid society could not verify the concerns and closed their file;
b) In December 2012, the file was re-opened when the society was notified by the police that N. had disclosed that she had been sexually assaulted by her step-father from the ages of 15 to 17. A. was interviewed and did not make any disclosures of sexual assault and denied being physically disciplined. The mother was interviewed and reported that she and the step-father have been in a relationship for 5years and were married in 20013. The police reported that they had been unable to obtain a statement from the step-father. As of February 2013, neither the school nor the Peel children's aid society was unable to locate the family. As the mother stated that she was protective of A. and A. had not disclosed any abuse the file was closed.
Events leading to apprehension
[9] On November 18, 2014 the society received a referral from Renee Phillips, a child and youth worker at N.’s high school that she had disclosed that she had been abused sexually, physically and emotionally by her step-father and that her mother did not believe her and had been calling her a “liar”. N. also reported that her younger sister A. had nightmares and had bedwetting issues.
[10] On November 19, 2014 Valerie Leece, a society intake worker contacted Ms Phillips who reported that she had spoken to N. that morning and N. told her that she did not want to speak to anyone about the abuse she reported. N. told Ms Phillips that when she returned home she was planning to go to a shelter but her mother and step-father took the things she wanted to leave with including her identification, told her she would never see her sister again if she left and that they would get a restraining order so that her grandmother would be arrested if she went to live with her grandmother.
[11] On November 20, 2014 Ms Leece attended a joint interview of N. with the police that was video recorded. N. reported that she had previously reported this abuse to the Peel police and at that time, in around December 212 she went to stay in Winnipeg with her maternal grandmother and that she returned to Toronto in about April or May 2014 and returned to live at her mother’s home when the sexual abuse began again.
[12] N. provided detailed information regarding significant and repeated sexually abuse by the step-father since she was 13 years old.
[13] N. also reported that the step-father had beaten her and her sister A. with a belt causing injuries. She reported a recent incident when the step-father became angry with A. because she wet her clothes and he physically assaulted her.
[14] After the interview, N. was assisted in finding a shelter where she could stay until the investigation was completed.
[15] In Ms Leece’s affidavit sworn November 25th, she deposed that as there was an ongoing criminal investigation the society had been asked to withhold details of the investigation from their protection application.
[16] Later in the day of November 20th, Ms Leece along with a police officer attended at A.’s school. They met with A. and the school principal and A. was told that they needed to speak to her about concerns that had been reported and would be taking her to another location where they conduct interviews with the children regarding their safety A. responded that she was not comfortable leaving her school and she wanted to call her mother. A. stated that her mother told her never to speak to society workers or police and that she should never go anywhere with society workers or police as she would end up in a foster home.
[17] A. was able to be convinced to leave the school with the society worker and police. The school principal asked if she could advise the mother of the apprehension and was given permission to do so and to give the mother the society’s contact information. The police also advised the mother of the apprehension and the criminal investigation. The worker was advised by the police officer that the mother advised him to speak to her lawyer, that she believed N. and her maternal grandmother were conspiring to cause trouble for her family.
[18] The police conducted a videotaped interview with A. and Ms Leece observed from another room. A. provided the following information:
a) She lives with her mother, her step-father who she refers to as her “dad” and her sister N.;
b) They live in a two bedroom apartment, she has her own room and her parents have the other room. N. came home this summer and sleeps either on the couch in the living room or in her bedroom;
c) N. gets along with her mother and step-father. Sometimes N. has little arguments with their mother;
d) She does not know what N.’s relationship is like with the step-father as she is involved in a lot of after school activities and does not spend much time at home;
e) Her relationship with her mother and step-father is fine and she could not answer about a time her step-father made her unhappy;
f) She does not like when her step-father helps her with her homework and sports and stuff because he is really precise and tells her the way she should do things; and
g) She denied that anyone had ever touch her in a way that made her feels uncomfortable.
[19] Ms Leece observed that A. presented as bright, articulate and well-spoken, however, when responding to questions about her step-father, her demeanour and speech pattern changed significantly from her response to other questions. In response to questions about her step-father, she was unable to provide a clear answer, her sentences stopped and started, ended without being finished and moved quickly to unrelated topics.
[20] While being transported to the foster home, A. told Ms Leece about her school and the activities she enjoys. She told the worker that she loves her school and that several staff members at her school are relatives of her step-father.
Court proceedings
[21] On November 25th there was a temporary without prejudice order placing A. in the care and custody of the society with access at the discretion of the society. An order was also made appointing the Office of the Children's Lawyer to represent A.
[22] The matter was adjourned to December 3rd for a temporary care and custody motion. At the request of the mother the motion was adjourned to January 20th, 2015 as she had just retained counsel.
[23] On the return date, the mother relied on Cross- Motion and affidavit sworn January 13th. The step-father did not file any materials. The society relied on their Notice of Motion and the affidavit of Ms Leece sworn November 25th and sought leave to file the responding affidavit of Idalina Luis sworn January 16th. Counsel for the mother objected to the filing of this affidavit as did child’s counsel on the basis that only a few paragraphs of the affidavit were in response to the mother’s affidavit and the remainder of the affidavit referred to information that was either available to the society on November 25th when Ms Leece swore her affidavit or was updating information.
[24] Upon review of the affidavit I agreed with counsel that much of the information contained was not properly responding evidence. However, in view of the seriousness of the decision a court is asked to make on a temporary care and custody motion it is vital that the court have updating and current information. Further, I note that the police had requested that the society not reveal the details of their ongoing investigation when Ms Leece prepared her affidavit. Given the nature of the allegations made by N. I found that all of the details of her allegations should be before the court as well as any further updating information. The society was granted leave to file the affidavit of Ms. Luis. I advised the respondent and counsel for the child that if they wished to respond to the new information in Ms Luis’s affidavit an adjournment would be granted. However, the respondents wished to proceed with the motion.
Further society evidence
[25] The criminal investigation is now completed and the step-father has been charged with 3 counts of sexual assault, 3 counts of sexual interference during various time periods from 2008 to November 2014 and a count of assault.
[26] Ms Luis deposed that she reviewed Ms Leece’s notes of the police interview with N. with A. and also with the mother and believes them to be true.
[27] During the videotaped statement of N. provided on November 20, 2014 she reported the following:
a) Ongoing incidents of sexual abuse from the time she was 13 years old;
b) Her step-father began by touching her breasts and vagina with his hands and that within a year the abuse escalated to vaginal and anal penetration. Her step-father instructed her how to stimulate his penis with her hand or with her mouth to “make him hard”;
c) These incidents took place either when her mother and sister were not home or sleeping in another room;
d) She had previously reported this abuse to the Peel police and at the time, in about December 2012, she went to stay with her maternal grandmother in Winnipeg;
e) She decided to report to the Peel police when her uncle asked her if anything was going on between her and her step-father when he observed their interaction. She broke down and told her uncle ad also spoke to her mother about the abuse. She thought her mother believed her at first. But when the mother confronted her step-father and he cried and swore that what N. said was not true, her mother believed him instead;
f) In 2012, her step-father arranged for her to get birth control pills that he kept hidden so her mother would not find them and he would give her one a day. About a month ago he arranged for her to get the birth control patch and then he began to ejaculate inside her;
g) Her step-father threatened that if she reported the abuse he would hurt her and her loved ones; and
h) There was ongoing physical assaults by her step-father of her and A. She described a recent incident when her stepfather was angry with A for wetting the bed and he put his hands around A/s neck and shook her.
[28] During the videotaped statement of A. on November 26, 2014, she reported the following:
a) After she wet the bed, on November 17th, her step-father was upset because she had not washed her sheets before leaving for school. She described that he was standing in front of her and he “put his hands on my neck”. A. demonstrated how he wrapped both hands around her neck. She was scared and crying;
b) N. was yelling at her step-father telling him not to choke her and that she was going to tell their mother;
c) She did not tell her mother or anyone else about the incident;
d) She would be afraid to go home because she believes that her step-father may do the same thing again; and
e) In the past, her step-father caused injuries to both her and N. by hitting them with a belt.
[29] During the interview A. did not make any disclosure regarding sexual abuse.
[30] The mother agreed to provide a videotapes statement on November 26, 2014. The mother provided the following information:
a) She met the step-father in the winter of 2007 and began dating him in the spring of 2008; He would sometimes be alone with the children while she ran some errands. They moved in together when she moved back to Mississauga from Toronto (about September according to society records);
b) The step-father has one biological daughter who is currently 17 years old. He is estranged from his daughter;
c) With respect to A.’s bedwetting she reported that A. has been seen by doctors, but could not provide any details, and that she just has a small bladder and they manage this by reminding her not to drink too much water before bed;
d) She was aware that the step-father was upset with A. for not cleaning her sheets right away when she wet the bed, but does not believe that he physically assaulted A. that day or at any other time;
e) With respect to N.’s disclosures of sexual abuse, she stated that she “absolutely” believes that her daughter is lying and described N. as “troubled”. She further stated that, “I know my husband has not committed any of these offences”;
f) She stated that she and the step-father had made the decision that he would stay with his family in Mississauga until the situation resolved; and
g) She stated that she wanted A. home with her and would do whatever is required of her for A. to return home.
Evidence in support of the mother’s plan
[31] The mother deposes that A. wishes to come home and misses her school, her friends, her activities and her regular routines.
[32] The mother stated that the step-father has voluntarily left the home despite that his bail conditions that would allow him to remain there as long as there are no the children in the home. She deposes that she is committed to having the step-father out of the home as long as it is deemed necessary by the criminal and family court. She advises that the step-father is in the process of attempting to vary his bail conditions to permit contact with A. but she would only facilitate access conditional on the terms of a family court order or with the consent of the society.
[33] The mother states that A. never showed any signs of being mistreated or neglected and that she is confident that if A. had been enduring any abuse her attendance and performance would reflect this. A.’s report cards for the last two years are attached as an exhibit and indicate she received good grades, attends regularly and is a well-behaved student that participates in both her academics and extra-curricular activities.
[34] The mother also states that A. never expressed any concerns regarding her home environment and feels there was no justification for A. being removed for her regular environment as she has express an interest and commitment to co-operating and acting protectively.
[35] The mother is concerned that A.is not attending her faith based school and that she is not being challenged in the new school she is attending.
[36] The mother deposes that the child’s religion is Seventh Day Adventist, not Catholic, and that she was baptised on June 14, 2014. She deposes that they are an extremely faith based family and are active members of their church. She is concerned that the child is not being exposed to her faith.
[37] The mother deposes that she has a close and loving bond to A. and that she has made every effort to ensure that A. is able to express any concerns or fears to her but to date she had never made any concerning allegations. The mother also deposes the A. is close to several third parties and to her teacher and that she would have been comfortable expressing any fears or concerns to any of them. An unsigned letter from her teacher and a letter signed by the school principal were attached as exhibits but given the allegations that the step-father has relatives at the school and the nature of the evidence I put no weight on these letters.[1]
[38] The mother denies the allegation of the society that she instructed A. not to speak to society workers or the police and as a protective mother only instructed her not to speak to strangers but once she can identify someone as a professional she is knowledgeable and mature enough to express any concerns.
[39] In summary, the mother deposes that she is committed to co-operating with the society and as such a supervision order is appropriate.
Statutory framework and applicable law on a temporary care and custody hearing
[40] 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).
[41] 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 child is returned to the mother, that it is more probable than not that she will suffer harm. Further, the onus is on the society to establish that the child cannot be adequately protected by terms of conditions of an interim supervision order.[2]
[42] The court must make an order that is the least disruptive placement consistent with adequate protection of the child in accordance with subsection 1(2) of the CFSA. [3]
[43] 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.[4]
[44] 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.[5]
[45] 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 child that justifies Society intervention[6]. 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 child in the parent’s care.[7]
Analysis
[46] I find that the evidence presented by the society workers with respect to the history of the society involvement to be trustworthy and credible. The history was not disputed in the mother’s affidavit. Counsel submitted that the court should note the number of times the allegations were not verified and the file closed. I agree that there were times that various societies could not verify concerns or were satisfied that the mother was complying or that she had understood the risk to her children. But it is important to view the entire record and not each individual opening and closing of the file. I find that historically the records indicate that the mother has had difficulty protecting her children and meeting their needs. It is also submitted that any concern about the mother moving out of the jurisdiction can be dealt with by terms of a supervision order. Although I agree that the court can include a condition in a supervision order that the mother not remove the child from this jurisdiction. But these moves should be assessed in the context of the mother’s ability to protect her children and meet their needs. I find that the mother has move to avoid the involvement of the society and this is another indication of a concern about her ability to protect her children.
[47] I find that the statements made by both N. to be trustworthy and credible at this stage of the proceeding. N. reported her allegations to the Peel police, later to her youth worker at school and then made a detailed statement to the police. I have considered that father is presumed innocent of the criminal charges and that the evidence has not been tested by any cross-examinations. But in view of the consistency of the allegations and the details provided I find that the statements are credible.
[48] I also find that the videotaped statement by A. regarding the physical assault by her step-father is credible and trustworthy. It is corroborated by N. and also the manner and detail provided by A. adds to its credibility.
[49] Based on the evidence, I find that the society has proven that there are reasonable grounds to believe that A. would likely suffer harm if returned to the care of the mother for the following reasons:
a) The mother has a history of previous involvement with various child protection agencies. During these previous contacts, there have been serious concerns about her failure to recognize the risk to her the children of her relationship with the father of the children who was convicted of sexual offences against children. Her ongoing contact with the father resulted in the children being removed from her care several times. There were also concerns about her failure to recognize and appropriately address concerns about the children’s emotional, developmental and medical needs or concerns regarding physical injuries to N.;
b) During two previous contacts, the mother abruptly moved and could not be located by the society;
c) N. has disclosed ongoing physical and sexual abuse by her step-father that began when she was 13 years old which is the same age as A. is now;
d) Although A. has not disclosed any sexual abuse but she stated that she was told not to speak to society workers or the police. A. did also not disclose any physical abuse and deny any such abuse but within 7 days of being removed from the family home, she has now disclosed a recent incident in which the step-father put his hands around her neck and proceeded to choke her;
e) A. continues to have issues with bed-wetting at the age of 13, and there is no known medical reason for these issues at this time;
f) The mother is adamant that the step-father has never physically assaulted either child; and
g) The mother is adamant that the step-father did not sexually assault N. and she has historically not protected her children and has repeatedly believed the alleged perpetrator and not her daughter.
[50] The next step is to determine if the society has met the onus of establishing that the risk to A. cannot be adequately protected by terms and conditions of a temporary supervision order.
[51] It is submitted by both mother’s counsel and the child’s counsel that A. wishes to return home. The society does not dispute that A. is now saying she wishes to go home and that she misses her school and her friends.
[52] It is submitted that as the step-father is no longer in the home that any concern regarding A. being physically or sexually assaulted is alleviated. It is also submitted that any risk can be alleviated by a term that the mother attend counselling to assist her wit gaining insight into protecting her child and creating an environment where the child feels free to express her concerns. It is submitted that further terms such as announced and unannounced visits and that the child can be interviewed outside of the home would also be protective.
[53] I find that the society has met its onus that the child cannot be adequately by any terms and conditions of supervision for the following reasons:
a) The mother has not learnt from the past that she needs to protect her children from her relationships with men that put her the children at risk;
b) The mother has not been able to foster an environment where her children feel free to express their concerns. The mother did not believe N.’s allegations choosing to believe the step-father. A. did not feel free to tell her mother about the incident where the step-father choked her;
c) Based on the mother’s past history of non-compliance or avoidance of the society there is a realistic concern that the mother will not comply with an order of supervision especially since she is convinced that the step-father is innocent of all of the allegations and the criminal charges;
d) The mother has no insight into how her past or her current relationship has put the children at risk of harm;
e) I question the usefulness of counselling with A. in the home as the mother does not accept that the need to protect the child since she states many times in her affidavit that if A. had any concerns or fears she would have told her or told someone in her community;
f) The mother is aware the A. has made a disclosure about the step-father’s physical abuse of her and in view of the mother’s strongly held belief that the stepfather has never hurt A. there is a reasonable concern that she will be tempted to convince A. to recant this allegation; and
g) The mother deposed that she, the step-father and A. have a close knit community. The mother did not dispute that the step-father has relatives that work at A.’s school or that the step-father is an influential member in the family’s religious community. Therefore there is a reasonable fear that this means that there is a lack of any independent people in A.’s life and that she may not feel comfortable making any further disclosures.
[54] Counsel for the child submitted that if the court was not prepared to return A. to the mother’s care that the mother’s access to permit the child to spend every week-end with the mother in her home. For the same reasons that I find a supervision order would not be adequate to protect A. the same concerns arise if A.is permitted unsupervised access to the mother.
[55] At the end of the submissions, the mother and step-father raised concerns A. was not being allowed to practice her faith as she was placed in a Catholic home. I asked the worker if the child was being permitted to practice her faith and was advised that although she was placed in a Catholic home, the foster mother took the child to a Seventh-day Adventist service every Sunday.
[56] When I advised the parties that I would not be returning the child to the mother’s care and briefly outlined my reasons and stated that I would release more detailed written reasons as quickly as possible, the step-father stormed out of the courtroom yelling that he was being persecuted for his religious beliefs. I have no understanding of this comment but accept the representation of the society that the child is being permitted to practice her faith.
[57] Order as follows:
The child A.B. born […], 2001 shall be placed in the temporary care and custody of the Catholic Children's Aid Society of Toronto pending disposition of the Protection Application;
The Respondent M.B shall have access in the discretion of the society at a minimum of once a week with the length, location and level of supervision being in the discretion of the society;
The Respondent J.K. shall not have any access to the child except pursuant to a further family court order.
Released: January 26, 2015
Signed: “Justice Roselyn Zisman”
[1] LiSanti v. LiSanti 1990 CanLII 4229 (ON CJ), [1990] O.J. No. 3092 (Ont. Prov. Crt-Family Div.)
[2] Children’s Aid Society of Ottawa-Carleton v. T. 2000 CanLII 21157 (ON SC), [2000] O.J. No. 2273 (SCJ).
[3] Children’s Aid Society of Hamilton v. B.D. and F.T.M. [2012] O.J. No. 1775 (SCJ)
[4] Children’s Aid Society of Toronto v. J.O.I. [2012] O.J. No. 2016 (OCJ)
[5] Family and Child Services v. R.O. [2006] O.J. No. 969 (OCJ)
[6] L.D. v. Durham Children’s Aid Society and R.L. and M.L. 2005 CanLII 63827 (ON SCDC), [2005] O.J. No. 5050 (Div.C.)
[7] Catholic Children’s Aid Society of Toronto v. M.L.R. [2011] O.J. No. 5552