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.

Court File and Parties

Court File No.: FO-15-0000274-0000

Date: 2015-07-22

Ontario Court of Justice

Between:

Windsor-Essex Children's Aid Society

Katelyn Wiley, for the Applicant

— And —

A.R.Y.K. and M.A.

In person with the assistance of Arabic/English translator In person

Heard: July 15, 2015

TOBIN J.:

RULING ON MOTION

[1] On this temporary care and custody hearing, the Society seeks an order that the children, S.M.A. born …, 2012 and R.M.A. born …, 2014, be placed in the temporary care and custody of the Society with access to the respondent parents three (3) times per week for two (2) hours per visit, supervised at the Society's offices.

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

Legal Considerations

[3] The legal test to be applied on this temporary care and custody hearing is set out in ss. 51(2), (3), (3.1) and (3.2) of the Child and Family Services Act ("Act") which provides as follows:

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.

(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).

(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'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.

[4] On this temporary care and custody hearing, the onus is on the Society to establish, on credible and trustworthy evidence, that there are reasonable and probably grounds to believe that there is a real possibility that if the children are returned to the respondents it is more probably than not they will suffer harm. Further, the onus is on the Society to establish the children cannot be adequately protected under Society supervision and on such reasonable terms and conditions the court considers appropriate: Children's Aid Society of Ottawa-Carleton v. T., [2000] O.J. No. 2273 (Ont. S.C.J.). This is a two (2) part test the Society must meet.

[5] The court must choose an order under s. 51(2) of the Act which is the least disruptive placement consistent with the adequate protection of the children: C.F.S.A., ss. 1(2) and Children's Aid Society of Hamilton v. B.D. et al., 2012 ONSC 2448.

[6] The degree of intrusiveness of the Society's intervention and appropriate terms and conditions are to be proportional to the degree of risk: Children's Aid Society of Toronto v. J.O. 1, 2012 ONCJ 269.

[7] Exposure to a pattern of domestic violence has been accepted as creating a risk of emotional harm to children: Children's Aid Society of Toronto v. M.S., [2010] O.J. No. 2876, citing Jewish Family and Child Services of Toronto v. R.K., 2008 ONCJ 774, [2008] O.J. No. 5856 (Ont. C.J.) (affirmed Ont. C.A. at 2009 ONCA 903, [2009] O.J. No. 5422).

[8] Subsection 51(7) of the Act permits the court to admit and act on evidence which the court considers credible and trustworthy in the circumstances.

Evidence

[9] In accordance with Family Law Rule 33(6), the evidence on this temporary care and custody hearing was given by way of affidavit. I considered the affidavits of V.B., sworn June 17, 2015; M., sworn July 9, 2015; and the reply affidavit of the Society by T.E.-S., sworn July 13, 2015.

[10] The respondent mother A.K.'s affidavit was sworn July 9, 2015. I do not find the evidence contained in this affidavit to be credible and trustworthy.

[11] Ms. K. has a basic or very limited understanding of the English language. When police officers were dispatched to her home on January 21, 2015 on a "well-being" call, they encountered Ms. K. and it appeared to the officer that she could not speak English.

[12] On May 29, 2015, Society worker, V.B., attended at the respondent mother's apartment. She was able to communicate in very basic terms with her.

[13] The affidavit sworn by Ms. K. did not include the jurat expected when the affiant does not understand the language used in it: Family Law Rules r. 1(7) and Rules of Civil Procedure r. 4.06(8). The wording used in her affidavit is strikingly similar to that found in the affidavit of Mr. A. It appears the affidavit was written by Mr. A. For example, at paragraph 72 it states, "I express that Amneh felt betrayed..." This appears to be Mr. A. speaking in this affidavit. In that same paragraph it also states, "I declare that any and all prior consents signed by Amneh were given involuntary and they were revoked." Again, this appears to be written by Mr. A. From this same affidavit, a reader would not be alerted to the fact that Mr. K. had limited facility with the English language.

[14] In Mr. A.'s affidavit, he deposed that his wife understood the Arabic language and a little English. He deposed that he correctly interpreted the contents of both Ms. B.'s and Ms. K.'s affidavit from English into the Arabic language and that his wife appeared to fully understand the contents. These statements indicate it was Mr. A. who wrote Ms. K.'s affidavit and translated it for her. In this case, where one of the reasons the Society intervened was because of domestic conflict, little weight can be placed upon an affidavit which appears to have been written by Mr. A. for his wife to swear.

Facts

[15] M.A., formerly known as M.C., is 46 years of age.

[16] A.K. is 23 years of age.

[17] The respondent parents married in 2011 when the respondent father was 41 and the respondent mother was 19. Ms. K. came to Windsor on June 20, 2011 from Jordan.

[18] They are the parents of the children S., now 3 years of age, and R., now 15 months old.

[19] The respondent father earned a Bachelor of Science degree in electrical and computer engineering from Wayne State University. The police report filed indicates he is employed at … Hospital as a C.P.U. Consultant. The respondent mother completed high school. She remained at home with the children prior to their apprehension.

[20] Windsor Police Service referred the respondents and their children to the Society on January 21, 2015. The reason for the referral is as follows. The respondent father was detained at Canadian Customs for allegedly assaulting an officer. (The respondent father deposes that no charges were laid.) During the process of his arrest, the respondent father indicated he needed to be released to care for his family as all the food in the house was locked up. He was the only one with a key. On receiving this information, two (2) police constables were sent to the home of the respondents, as stated above, for a "well-being" call. The only food observed by the officer was a tomato in the refrigerator. The key, which unlocked the door to the room with the food, was brought to the premises. When the door was opened, food was observed in the closet. Baby food along with miscellaneous types of foods was observed in this closet. Following the referral, the Society met with this family on a regular basis.

[21] Workers from the Society recommended services to the parents to deal with domestic conflict and to assess and meet S.'s special needs. Initially the respondent parents did work with the society and service providers.

[22] When at the home of the respondents Society workers consistently observed that the children appeared well cared for. The only concern registered with respect to their home was the need for proper beds for the children. The parents attended to this quickly.

[23] After a period of time the respondent parents refused to participate in services recommended by the Society to address concerns identified. They refuse to continue their involvement with Children First. This organization was enlisted to assist S. The respondent parents were not willing to work with Islamic Social Welfare Association ("I.S.W.A."), a social service association engaged specifically that would be sensitive to the parents' religious and cultural concerns. They did not want to work cooperatively with the Children's Aid Society.

[24] The children were apprehended on June 15, 2015 because the respondent parents would no longer engage with the society and service providers.

Reasonable Grounds to Believe

[25] I find that on the record before this court there are reasonable grounds to believe there is risk the children are likely to suffer harm while in the care of their parents. The basis of this risk is the domestic conflict between the parents and the need for S. to engage in services to address her special needs.

[26] The evidence relied upon to support this finding is as follows:

(a) According to the respondent mother, the respondent father is a "little jealous" and "gets mad" when a man comes near or looks at her. The respondent mother reported to the Society worker that the respondent father had told her he was seeing a psychiatrist as a result. (The respondent father deposed that it was a counselor he saw.) On April 13, 2015, the Society worker attended with a representative of Children First and an interpreter from the Multi-Cultural Council. At that meeting, the respondent father described his wife as having a concerning history in Jordan and that it upset him when she is out in the community and seemed to look at men. He spoke about his expectations that she not look around when she is outside and she should keep her eyes straight ahead. The Society worker then described that the respondent mother became upset saying she felt like a statue as she does not look around when she is out. She stated her husband would cut her head off if she was to look at another man and she ensures she does not. Both agreed to participate in counselling through the I.S.W.A. and other relationship issues. Some time later, they refused to work with this association.

(b) The police reported food was kept in a locked closet and only the respondent father had a key.

(c) There were holes in the bedroom door, consistent with it being hit. Neither the mother nor father would tell Society workers how and when the damage was done. In an intake interview at Hiatus House, the respondent mother reported the respondent father punched a hole in the wall approximately a year prior after she locked herself in her bedroom as a result of being upset with him.

(d) The respondent mother resided at Hiatus House on two (2) occasions during the winter and spring of 2015.

(e) The respondent father acknowledges he yells and screams when he is upset.

(f) There was sufficient discord in their marriage that the husband said he divorced his wife by saying to her, "You are divorced." On May 12, 2015, the respondent father advised the Society worker that he and the mother were divorced and living together but had their own separate lives. The divorce, he stated, was according to Islam and not through the court.

(g) The Society worker reported that the respondent father in denying domestic violence in their relationship stated, "...there had been arguments, pushing and shoving, but nothing that would leave a scar." The respondent father denies he said the foregoing. I do not accept the respondent father's evidence on this point as there are internal inconsistencies in his affidavit as it relates to this evidence. At one point he acknowledges there was pushing and shoving. He then qualified that by saying it took place in their bedroom while the children were asleep in their bedroom. He added that had there been, "...any pushing and shoving of the domestic violence kind there would have been bruises and scars." The respondent father reported to the worker that he could not tolerate his wife being disrespectful.

(h) While at Hiatus House the second time, in May 2015, the respondent mother reported their respective families had mediated and resolved their marital issues. She was told there would be no further domestic violence including arguing, pushing or shoving in the home. The respondent mother felt it was then safe to return home and that she would only give him one last chance. If he returned to the former behaviour, she would phone the Windsor Police and re-attend at Hiatus House and not return to him again.

[27] All of these events and disclosures, despite the respondent father's denials, give rise to reasonable and probable grounds to believe that there is a real possibility the children are at risk for physical and emotional harm due to domestic conflict if returned to the respondents.

Can Terms of Supervision Adequately Protect the Children?

[28] I find that with terms of supervision to be set out below, the children can be protected adequately. The evidence relied upon in support of this finding is as follows:

(a) The children have been observed by Society workers to be well cared for throughout their time of involvement.

(b) Other than needing proper bedding, which was attended to quickly, the home was observed to be appropriate.

(c) The children are observed to be bonded with the mother and comfortable with the father.

(d) The parents are concerned about Sandra's diagnosis and what assistance she may require. They did take some steps to address this.

(e) There is distrust by the respondent father of Society workers and the services recommended by it including Children First. This should be addressed by the recent change in family support worker assigned to the family.

(f) The respondents have family members who they respect enough to have them help with their domestic challenges.

(g) The services this family needs relate to domestic conflict and ensuring Sandra's needs are met. The parents have demonstrated a willingness to deal with both issues, albeit in their own way and not yet successfully.

Order

[29] The Act requires that the least intrusive intervention by the Society which is consistent with the children's best interests be ordered. I find the appropriate degree of Society intervention at this time will be placing the children in the temporary care and custody of the respondent parents subject to Society supervision and on the following terms and conditions:

1) The children shall reside in the County of Essex.

2) The respondents shall keep the Society advised of their address and all telephone numbers and report any changes within two (2) days of such change.

3) The respondents shall sign all releases requested by the Society, including and not limited to:

(i) all medical doctors or other health care practitioners seen by the parents and the children (a) within the last three (3) years and (b) until this case is resolved; and

(ii) criminal record checks including Canada and the United States.

4) The respondents shall allow announced and unannounced attendance at their residence by workers from the Society and allow them to be alone with the children as well as in the presence of either or both parent.

5) The respondents are to ensure that Sandra continues to be assessed and receives services from doctors and service providers as agreed by them and the Society and if no agreement then as directed by the Society.

6) The respondents are to engage in relationship counselling with such persons as may be agreed to by them and the Society and if no agreement then as directed by the Society.

7) The respondents are to separately participate in domestic violence counselling as directed by the Society and to continue for as long as recommended by the counsellor.

8) The respondent father is to engage in anger management counselling as directed by the Society and to continue with this counselling as long as recommended by the counsellor.

9) The respondents are to ensure that neither child is exposed to domestic conflict.

10) Should there be any domestic conflict between the parties, it is to be reported immediately to the Society.

11) The respondents are to work cooperatively with the Society workers and service providers recommended by them.

12) The children shall not be removed from the Province of Ontario without the prior approval of the Society.

[30] The case is adjourned to a case conference on August 17, 2015 at 10:00 a.m. in courtroom #4 (45 minutes). An Arabic/English interpreter is required for the respondent mother.

[31] The respondents are granted leave to file their Answer and Plans of Care by July 30, 2015.

[32] It is early in this proceeding. The Society must be given an opportunity to fully investigate this matter more fully to determine risks, if any, services required and appropriate service providers. It is expected that these issues will be addressed in a comprehensive manner at the case conference.

[33] The respondent parents must recognize that the Society has a statutory duty to investigate allegations or evidence that children may be in need of protection and to provide guidance, counselling and other services for families for protecting children or for the prevention of circumstances requiring the protection of children: See C.F.S.A., ss. 15(3).

Released: July 22, 2015

Barry M. Tobin Justice