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

Court File No.: C72205/14

Date: July 17, 2015

Ontario Court of Justice

Between:

Children's Aid Society of Toronto – Applicant

and

T.T. and A.C. – Respondents

Before: Justice Roselyn Zisman

Counsel:

Sherri Smolkin for the Applicant
Lynn Bonhomme for the Respondent T.T.
A.C. not present

Heard On: June 29, 2015

Endorsement on Temporary Care and Custody Motion

Introduction

[1] This is a temporary care and custody motion regarding the children E.C, P.M.C. and S.C., in the temporary care of the society with access to the Respondents in the discretion of the society.

[2] The Respondent mother has five children: M.Y., born […], 2002 ("M."); E.C., born […] 2011 ("E."); P.M.C., born […], 2012 ("P."); S.C., born […], 2013 ("S.") and K.C., born […], 2014 ("K."). The Respondent A.C. ("father") is the biological father of all of the children except M.

Applicable Statutory Framework

[3] The statutory provisions that are relevant to this motion are as follows:

Adjournments

51.(1) The court shall not adjourn a hearing for more than thirty days,

(a) unless all the parties present and the person who will be caring for the child during the adjournment consent; or

(b) if the court is aware that a party who is not present at the hearing objects to the longer adjournment.

Custody During Adjournments

(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.

Application of s. 62

(4) Where the court makes an order under clause (2)(d), section 62 (parental consents) applies with necessary modifications.

Access

(5) An order made under clause (2)(c) or (d) may contain provisions regarding any person's right of access to the child on such terms and conditions as the court considers appropriate.

Power to Vary

(6) The court may at any time vary or terminate an order made under subsection (2).

Evidence on Adjournments

(7) For the purpose of this section, the court may admit and act on evidence that the court considers credible and trustworthy in the circumstances.

Litigation History

[4] The society commenced a Protection Application on December 11, 2014, seeking a six month order placing K. and M. in the care of the society and an order that E., P. and S. be placed in the mother's care subject to terms of supervision.

[5] The society's concerns as outlined in the Protection Application are:

(a) the mother was using prescribed medications and recreational marijuana to manage her pain from a rare central nervous disease that exposed the children to unsafe conditions in the home;

(b) the children were exposed to domestic violence between the mother and the father. As a result of the verbal, emotional, mental and physical abuse, the mother attempted, on three occasions, to commit suicide while pregnant with the youngest child and has continued to make references to suicide;

(c) the mother has not sought treatment to address the impact of the domestic violence she experienced or her suicide attempts;

(d) the mother had difficulty separating from the father and resumed contact with him until his arrest for assaulting her in September 2014;

(e) all of the children have been negatively impacted: M., who is 12 years old, has shown the most effects of harm. He is struggling with obesity, hygiene and soiling issues. He was not attending school regularly, left on his own and also left to supervise his younger siblings, including his medically fragile younger baby brother K;

(f) both parents showed poor judgment and lack of responding to the children's medical needs. They delayed in obtaining medical care for K., who needed to be admitted into the hospital for severe dehydration, with an acute gastro infection and required a blood transfusion. On a voluntary basis, K. was admitted to care upon him being discharged from the hospital, but when he was returned to the mother's care in November 2014, she was unable to meet his needs and he was re-admitted to the hospital with an exaggerated fontanel bulge for which the cause was not identified.

[6] On December 12, 2014, on a without prejudice basis, M. and K. were placed in the care of the society and the other children were placed in the care of the mother with strict terms of supervision that included terms that:

(a) she seek appropriate medical treatment for herself and the children;

(b) ensure the children attend school and or daycare regularly;

(c) not leave the children unsupervised or in the care of anyone not approved of by the society and ensure they are properly supervised by a responsible adult;

(d) keep her home free of safety and health hazards;

(e) seek counselling for herself;

(f) not expose the children to any domestic violence;

(g) not smoke marijuana in the home and not operate a motor vehicle while under the influence of marijuana and while the children are in the motor vehicle, and

(h) attend a car seat clinic to ensure that her car seats are properly installed, and she is taught how to secure the children safely.

[7] At the court attendance on March 31, 2014, the society began to express concerns about the mother's compliance with the temporary terms of supervision and her appearing to be overwhelmed with parenting the children in her care. A date was set for a temporary care and custody motion to place the three children in the mother's care into the care of the society.

[8] Based on the affidavit filed of Anna Maria Giordano, sworn April 15, 2015, filed in support of the society's motion, the following concerns and breaches of the terms of the temporary supervision order were outlined:

(a) The mother continued to smoke marijuana in the home. The mother admitted to smoking between 6:00 a.m. and 7:00 a.m., as "that is what takes the pain away," and then she would drive the children to daycare or school. Based on the medical opinion received by the society, since this is not the medically prescribed dosage, the length of time it remains in her system and the effects are unknown, but in any case it would not be safe for her to drive;

(b) On home visits, the home appeared to be neat and clean but several safety hazards were observed including mattresses and other items piled up in the living room;

(c) The mother neglected to follow up with attending for medical care for P.'s ear infection and used antibiotics that had been prescribed over a month ago;

(d) The society received credible information that the father was seen in the morning at the home with two of his friends making breakfast. The children reported that the father slept there. In attempts to serve the father with the court documents, the society worker was told that the father was not residing at the home of his surety as required by the terms of his recognizance. On March 16, 2015, the family society worker attended at the mother's home; the mother admitted the father was at the home. She denied he was sleeping there and stated that it was the first time he had been in the home and that he had come to see the children. The worker noted that the children were not home but in daycare or school;

(e) On the same day, the family society worker observed the mother go with her friend to pick up the children from daycare and observed that there were insufficient car seats for the children. The society worker followed the mother to the daycare, but the mother and her friend had by then returned to the mother's home. The society worker then returned to the mother's home and when she rang the doorbell, she heard one of the children shout, "Daddy's here";

(f) When the family service worker told the mother she could not transport the children to daycare the next day without proper car seats as it was unsafe and illegal and part of the court order, she responded that she take them in a cab "as it was not illegal not to have car seats"; and

(g) A few days later on March 19, 2015, the mother left the family service worker a message, cancelling her visit with M. and K. because she could not function right now. The family service worker called the mother back and tried to explain the society concerns. The mother was crying and upset and threatening to kill herself if the society took the children away. The family service worker gave the mother the name of a crisis unit. She wanted to develop a safety plan for someone to come over that evening but the mother then stated she would be fine and not do anything. Nevertheless, the family service worker contacted the paternal aunt who agreed to checkup on the mother and the children.

[9] On May 4, 2015, the society sought an adjournment of their temporary care and custody motion as the situation appeared to be improving in the mother's home. On subsequent home visits, the home no longer smelt of marijuana, the mother had begun to transport the children using public transportation and she was actively participating in programs through the YMCA and Aisling Discoveries.

[10] On consent, the mother agreed to a further term of supervision that she not permit the father any contact with the children except as arranged by the society and that he not attend at the mother's home.

Events Leading Up to the Apprehension

[11] The society apprehended the children on June 10, 2015. The following further events and concerns led to the apprehension:

(a) The family service worker contacted Wheel Trans service to obtain information to assist the mother in making arrangements for transporting the children and offered to attend with her for an appointment to advocate for the service. The mother declined as she stated she had tried before to get this service and had been denied and her car would be back in working order in a couple of weeks so she would not need any assistance in transporting the children;

(b) The father met with the family service worker to obtain information and assistance in putting together a plan to care for K. During this meeting the father told the family service worker that in the last couple of weeks he had picked up the children from the mother's home for a visit. On one occasion, his friend picked up E. and brought him to the father who spent about six hours with him. On another occasion, he attended at the mother's home with his other daughter and picked up P. and spent five or six hours with her and then returned her to the mother's home;

(c) The father stated that he was not aware he could not go to the mother's home or have unsupervised access to the children as his bail conditions had been changed. The bail order now states that the parents can have contact with each other, with the mother's written consent, and for the purpose of facilitating access. The family service worker deposed that she had told the mother this was only so the parents could see each other at the supervised access visits and there was no discussion about access being unsupervised or in the community;

(d) On June 9, 2015, the mother, who attended the society office for a supervised visits, was seen transporting E. without a proper seat. The mother told the worker that the car seat would not fit into the car she was driving. The mother was told she should have used the bus or a taxi that the society would have arranged. The mother was advised that she could not leave with E. and the family service worker then transported E. in her car. E. told the family service worker that he had visits with his father. While waiting for the mother to arrive, the family service worker observed that the mother drove up with P. and S. and that P. was not in a proper car seat. The family service worker warned the mother again about not driving the children to daycare the next day without proper car seats;

(e) With respect to the father seeing the children, the mother denied that the father ever came to her home to pick up E. and only admitted that a friend of the father's picked up E. and she did not know where they went or what they did;

(f) The next day June 10, 2015, the family service worker attended at the daycare and asked E. how he came to daycare that day and was told the mother drove him in the same car she used the day before; and

(g) The family service worker called the mother at about 4:00 p.m. that day and she sounded groggy and told the worker she was in a lot of pain and needed to go to emergency after she picked up the children from daycare. The family service worker advised her that the children were being apprehended.

[12] A temporary without prejudice order was made on June 15, 2015, placing the children in the care of the society and the temporary care and custody motion proceeded on June 29, 2015.

The Mother's Evidence

[13] It is the mother's position that the children should be placed in her care and that the level of intervention should be proportionate to the risk and that an order removing the children from the mother's care is not necessary. The mother willing to abide by terms of supervision.

[14] The mother relies on the following facts in support of her position:

(a) Although she did permit the father access to E., it was in the community and therefore the child was not exposed to any domestic conflict between the parents; the mother denies that father came to her home. In the mother's March 16, 2015, affidavit she admits that in her Answer, dated March 16, 2015, she stated that her last contact with the father was when he was charged with assaulting her and that he had no contact with the children aside from supervised access. The mother admits in her affidavit sworn April 27, 2015, that, despite her statements in her Answer, the father did come to her home a few weeks prior to March 16, 2015, and she allowed him into the home as the children were not there and he stayed with his two friends for a few hours;

(b) The mother attended a program for women who have suffered abuse and attended from February to March 26, 2015, and is currently attending another program from April 9 continuing to June 25, 2015, and she deposes that she has found the programs empowering;

(d) The mother wishes to move so that the father will no longer know where she is residing. The mother deposes that she will have to leave her current residence in any event as the house she is living in has been sold and she will move into a shelter while she looks for new accommodations;

(e) The mother admits to using marijuana in the mornings to manage her pain but deposes that it does not interfere with her ability to function or manage the children. The mother is attempting to obtain a prescription for medical marijuana and her family doctor has referred her for an MRI to determine if she qualifies. The mother admits that in the winter she smoked at the door of the home as it was too cold to go outside, but she stopped doing this when warned by the family service worker;

(f) The mother admits that she had trouble caring for M. when he was in her care and would spend time with the maternal grandmother. She was not aware that his needs were not being met in that home;

(g) The mother denied that she was not meeting K.'s needs and that he was ill only on an off for two weeks before she sought medical care. The mother does agree that upon his release from the hospital she agreed that she could not care for him as she was overwhelmed with dealing with the father, the other four children and her health;

(h) The mother admits that she gave P. antibiotics that had been prescribed a month earlier, but she deposes that it was for a similar ear infection and she was not aware she should not use the medication and that she will not do it again;

(i) The daycare reports that the children attend regularly and appear to be well cared for;

(j) The mother admits that she drove E. to daycare without a proper car seat but he was buckled up. The mother deposes that some of the taxis sent by the society are not equipped for car seats and that the society only pays for the taxi one way. She admits that after being warned and telling the family service worker that she would not drive the children to daycare without proper car seats, as she was in so much pain she "had to crawl down the stairs" and used her friend's car to take the children to daycare as she had no other solution;

(k) The mother deposes that she will be in a financial position to pay for the insurance on her own car shortly and transporting the children with proper car seats will no longer be an issue; and

(l) Despite the fact the mother does not believe she has any mental health issues, she has made an appointment with a psychiatrist as suggested by the society. The mother also deposes that although she was devastated when the children were removed, she knows she has to stay strong.

Analysis

[15] I find the evidence presented by the society to be credible and trustworthy with respect to the statements made to the family service worker by the mother, father and the children. I also find the society observations at this stage of the proceedings to be credible and trustworthy.

[16] I do not find mother's explanations regarding her contact with the father credible. I find it very troubling that the mother justified her false statement in her Answer, that she had no contact with the father and that he had not seen the children, by submitting that, "when it counted," she told the truth. In other words, she could make a false statement because it was not a sworn document, but when she swore an affidavit then she told the truth. I find that the mother was forced to admit she lied in her Answer because she was found out and if the society had not received the third party information about the mother's contact with the father then the mother would not have admitted the father had contact with the children or saw the children in breach of the court order. I find that even the admission made by the mother is not credible. Based on the children's statements and reactions, none of which were denied or explained by the mother, I find that the father was coming to the home and had more contact with the children than admitted by the mother. This is concerning both with respect to the history of domestic violence between the parents and also because of the mother's breach of the terms of the court order.

[17] Based on the evidence, I find the society has proven that there are reasonable grounds to believe that there is a risk that the children would likely suffer physical harm if placed in the mother's care for the following reasons:

(a) The mother neglected the physical needs of her two children M. and K. that resulted in them being placed in care. Since then she has neglected to obtain prompt medical attention for P. and put her at risk by using medications that were previously prescribed and not used without seeking any medical advice;

(b) The mother has a history of suicidal threats and of being overwhelmed with caring for her children. The mother has only begun to seek psychiatric assistance;

(c) The mother has completed several parenting programs, but it is not yet clear that she has benefited from those programs with respect to her ability to understand and manage her children's needs;

(d) There is a history of domestic violence between the parents. Despite completing programs dealing with domestic violence and the mother stating that she felt empowered by those programs, the mother permitted the father to come into the home knowing that this was in breach of his bail recognizance and permitted him contact with the children in violation of the terms of the temporary without prejudice supervision order;

(e) The mother continues to use marijuana to manage her pain without any medical monitoring and without a prescription. Based on the only evidence available at this stage of the proceeding, her driving the children within several hours of using marijuana puts the children at risk of harm;

(f) Despite many warnings by the society and offers of taxis, the mother continues to drive the children with either no car seats or unsafe or improper car seats. The mother minimizes the risk to the children and offers many excuses such as, the terms of the temporary order did not state she had to drive the children with car seats only that she needed to have the car seats inspected and properly installed in her car, that she had no other choice but to use a friend's car, that she used taxis without putting the children in their car seats and the society only paid for the taxi fare one way and she was in too much pain to use public transportation. The mother now deposes that she has the funds to put her own car on the road so this will not be a problem in the future. No proof was provided that the mother's car is now able to be driven and is properly insured; and

(g) Overall, the mother has shown a lack of judgment in meeting the medical and safety needs of the children.

[18] The next step is to determine if the society has met its onus of establishing that the risk to the children cannot be adequately protected by terms of a supervision order.

[19] It is submitted on behalf of the mother that she will abide by any reasonable terms of a supervision order and that the removal of the children for these minor breaches is not necessary. It is submitted that although the mother may have permitted the father access to the children, there is no evidence that the children were exposed to any further conflict between the parents. The issue of transporting the children without car seats can be addressed as the mother will have the use of her own car that will be equipped with proper car seats. The mother now knows that she cannot use medications without the doctor's approval and will ensure the children are seen by the doctor.

[20] However, as submitted by the counsel for the society, all of the conditions to meet the risk to the children were in place in the temporary without prejudice supervision order.

[21] The society supplied the mother with proper car seats, and despite numerous attempts to discuss the safety issues and warnings to the mother, she persisted in transporting the children unsafely.

[22] In view of the mother's inability or unwillingness to follow the direction of the society around issues of safety, her lack of sharing information and her lack of honesty with respect to her relationship with the father and his contact with the children, there are serious concerns about the mother's judgment and her willingness and ability to comply with terms of a supervision order.

[23] The mother was aware since March of 2015 that the society was concerned about her care of the children and her breaching the temporary supervision order, despite these breaches and concerns, the society gave the mother another opportunity to care for the children and adjourned their motion in May 2015. The mother almost immediately again breached the terms of the supervision order. At this time there are no other terms of supervision that will ensure the children in her care are not at risk of harm.

[24] I find that the society has met its onus of proving that the children cannot be adequately protected by any terms and conditions of supervision.

[25] I recognize that the mother is beginning to take positive steps to learn better parenting skills and to understand the effect of domestic violence both on herself and the children and that she is also taking steps to understand her own challenges. However, at this time her lack of honesty and candour with the society and her inability to follow through and abide with the terms of supervision require the children to remain in the care of the society.

Order

[26] Order as follows:

The children E.C., born […], 2011, P.M.C., born […], 2012 and S.C., born […], 2013, shall be placed in the care and custody of the Children's Aid Society of Toronto.
Access to the children by both respondents shall be at the discretion of the society at a minimum of twice a week as long as it is consistent with the children's schedules and their best interests.

Justice Roselyn Zisman