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.

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 File and Parties

Court File No.: FO-15-0000180-0000

Date: 2015-07-27

Ontario Court of Justice

Between:

Windsor Essex Children's Aid Society

Karen M. Robertson, for the Applicant

— And —

A.O., R.C.

Stephanie Johnson, for the respondents A.O. and R.C.

Br.R. and B.L.

Rayleen Cantin, for the respondents Br.R. and B.L.

Heard: July 8, 2015

TOBIN J.:

ENDORSEMENT

[1] In this temporary care and custody hearing, the Society asked for an order placing the child J.D.O., born …, 2015 ("J.D.O." or "the child") in the care of his paternal great aunt, Bo.R. and her partner, W.H., subject to its supervision.

[2] The respondent, Br.R., the paternal grandmother, and her partner, B.L. asked the child be placed with them. In the alternative, they sought expansive access to the child. They are supported in their request by the respondent parents, A.O. and R.C.

Facts

[3] The respondent parents did not ask that the child be placed in their care. They requested access. Both parents have developmental delays, mental health issues and are without proper parenting skills. The mother's ability to care for the child is also compromised by reason of paralysis to her left side.

[4] The parents came to the attention of the Society when called by an employee of Windsor Regional Hospital following a prenatal visit there.

[5] Prior to the birth of the child, the plan established by the Society and the respondents was that the parents and child would reside in Br.R.'s home for approximately two weeks and then she would move with them to their home to assist. A safety plan was developed whereby Br.R. would be the primary caregiver of the child and the parents would never be alone with him.

[6] Before making this plan with the Society, Br.R. disclosed to the Society worker that she had rods in her back but this would not impact her mobility. She reported to the Society worker that she is "bi-polar" but is stabilized on medications. She further told the worker that none of the medications which she took would impact upon her ability to wake up for night time feedings. She let the Society worker know that B.L. and Bo.R. would support her.

[7] The child was born February 17, 2015. He was discharged on February 19, 2015 and placed with Br.R. in a kinship out-of-care placement.

[8] In the first few weeks following the child's release from hospital, R.C.'s behaviours with regard to wanting access were disruptive, disturbing and on occasion undertaken in the presence of the child. Br.R. was appropriate in her response to R.C.'s behaviours. She contacted the Society to report and the police for assistance. She made every effort to protect the child from exposure to R.C.'s inappropriate behaviours.

[9] Following Society worker, Ms. St. Louis', first visit to Br.R.'s home on February 27, 2015, she was satisfied that Br.R. "appeared well equipped to care for the infant and very committed to his needs." At this time B.L., though not living with Br.R., had been staying there to provide her with assistance. Br.R. was aware of the follow-up appointments related to the child as well as particulars pertaining to him, including his eating and sleeping patterns. B.L. and Br.R. were aware they needed to supervise the parents carefully during their access. They also spoke with Ms. St. Louis about their respective life histories and financial plan to care for the child.

[10] With the knowledge of the intake worker initially assigned to this family, each week the child spent from Sunday until Tuesday in Bo.R.'s home.

[11] When the Society file was transferred from the intake worker to Ms. St. Louis, the evidence upon behalf of the Society is that Br.R. was instructed not to send the child to Bo.R.'s home for extended periods of time. This instruction was given by Ms. St. Louis, the Society's resource worker, and Jennifer Walker, an employee of the Society's Kinship Services Department.

[12] Br.R. and B.L. deny they were given this instruction.

[13] I find the evidence of the Society workers on this issue is both credible and trustworthy. They are required to keep records of their conversations. The workers were consistent in the advice given. The intake worker acknowledged that he did speak to his supervisor who approved contact with Bo.R. but that he understood this assistance was needed for only the first few weeks while Br.R. "got certain things in order." He did not expect it would be an indefinite arrangement. Notwithstanding the Society's direction, the child was in Bo.R.'s care each Sunday to Tuesday except when he was in hospital because of a urinary tract infection from March 16 to March 25, 2015.

[14] Beginning early March 2015, Society workers became concerned about Br.R. and B.L.'s plan to care for the child. This concern culminated in the child being apprehended from Br.R. on April 17, 2015.

[15] Since the apprehension the child has resided in the temporary care and custody of Bo.R. and W.H. on a without prejudice basis pursuant to the order of Justice Ross dated April 22, 2015.

[16] Following the placement of the child with Bo.R. the relationship between the sisters has become strained. Br.R. was upset that Bo.R. had not come forward to support her request for the return of the child to her care.

[17] The particulars of the concerns which gave rise to the Society apprehending the child were as follows:

(1) A Masters of Social Work student at the hospital observed Br.R. to be confused about the names of people who would be attending at her home to provide supportive services.

(2) On occasion, the nipples on the child's bottle came to an access visit in an unclean state.

(3) Br.R. was not feeding the child often enough. On two occasions, with access starting at 11:00 a.m., Br.R. advised access workers through notes that the child was last fed between 7:30 a.m. and 8:00 a.m.

(4) Br.R. did not follow the Society worker's directive to keep the child in her care and not send him to Bo.R.'s home for extended periods.

(5) The responsibility of caring for the child was overwhelming to Br.R. In one instance, she was not attending to a severe rash the child had in his genital area. Br.R. appeared dazed during the March 19, 2015 visit with Ms. St. Louis. Br.R. shared with her she was not sleeping well.

[18] The Society workers viewed these concerns in the context of the child being an infant and consequently most vulnerable.

[19] Br.R. denies that the Masters of Social Work student was correct in her observations and that she presented as overwhelmed. With respect to sleep deprivation, she said she was up with the baby. She also denies that Ms. St. Louis was correct in her observation that she appeared dazed, agitated, tired and overwhelmed.

[20] Counsel agreed two letters filed on behalf of Br.R. could be considered on this motion.

[21] The first letter was from Br.R.'s family physician, Dr. Mohammed T. Hussain, dated June 12, 2015. He has been treating Br.R. for about nine years for a chronic pain due to scoliosis and fibromyalgia, migraines, depression and anxiety. He describes Br.R.'s diagnosis as major depression, anxiety, migraine, scoliosis with back surgery, fibromyalgia and chronic pain due to scoliosis and fibromyalgia. It is Dr. Hussain's belief that Br.R. "...will be sincere in looking after the infant and will not be negligent. At this point, I do not have any concerns regarding [Br.R.'s] ability to care for and provide for a newborn child." Further, Dr. Hussain believes that, "... [Br.R.'s] ailments do not pose a risk to the child. Her medicines however, dangerous if taken by a child, should be stored safely and responsibly."

[22] The second letter was written by Bo.R. and is dated June 29, 2015. Bo.R. describes that her part in the plan for the care of the child was to take him for three days and two nights a week. She also writes that she witnessed Br.R. sterilizing bottles, bathing the child and making sure he was fed and cared for and greatly loved. Currently, she describes that the child is flourishing in her care. He is becoming more aware of his surroundings with every day that goes by. She adds, "...however I do feel my sister, his grandmother, has every right to question and try to regain custody of him." Bo.R. is prepared, if need be, to have the child stay in her care.

Legal Considerations

[23] The 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 which provided 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.

51(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).

51(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.

51(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.

[24] The onus is on the Society to establish, on credible and trustworthy evidence, that there are reasonable grounds to believe there is a real possibility that if a child is returned to the person who had charge of the child immediately before the intervention he or she is likely to suffer harm. If that is the case, then the onus remains on the Society to establish the child cannot be adequately protected by terms and conditions of an interim supervision order: Children's Aid Society of Ottawa-Carleton v. T., [2000] O.J. No. 2273 (Ont. S.C.J.)

[25] The degree of intrusiveness of a Society's intervention and the interim protection ordered by the court must be proportional to the degree of risk: Catholic Children's Aid Society of Toronto v. O.J., [2012] ONCJ 269 (Ont. C.J.)

[26] Any order made by the court must result in the least disruptive placement consistent with adequate protection of the child: C.F.S.A. ss 1(1) and Children's Aid Society of Hamilton v. D.B., [2012] ONSC 2448 (Ont. S.C.J.)

[27] Counsel put in issue on this hearing who had charge of the child immediately before the apprehension.

[28] Both counsel agree that Br.R. had charge of the child. The Society argues that so did Bo.R. If the Society is correct, then I am to consider the risk of harm of returning the child to either Br.R. or Bo.R. rather than first considering Br.R.

[29] Though not cited by counsel, I have considered Children's Aid Society of London & Middlesex v. D.(S), [2008] O.J. No. 3796 (Ont. S.C.J.). In this decision, Justice Harper considered the issue of who had charge of a child. His analysis, at paras 29 to 32 is as follows:

29 ...I am of the view that there must be evidence that a person has an active relationship with the child that includes care and responsibility. It is something more than physical possession or limited incidents of care.

30 I am of the view that s. 51 is structured in the manner that it is because the statute establishes a priority to the person who may have had the most active and responsible involvement with the child immediately before the apprehension.

31 If the court determines that the evidence discloses that there is a person who had the charge of the child immediately before intervention, then the court must return the child to that person unless there are reasonable grounds to believe that there is a risk that the child is likely to suffer harm and that the child cannot be protected adequately by an order that provides for a return on terms (s.51(3)).

32 It is possible that more than one person had the charge of the child immediately before intervention and they subsequently compete for the return of the child to them at a temporary care hearing. In that case the court must consider the risk of harm of returning the child to either person.

Charge of the Child

[30] I find that Br.R. alone had charge of the child as that term is contemplated in the Act when apprehended.

[31] It was Br.R. who had the day-to-day active care of the child and was responsible for his wellbeing. According to the safety plan established when the child was born Br.R. was the child's primary caregiver. Bo.R. assisted her sister by caring for the child weekly from Sunday until Tuesday, a period of approximately 48 hours. I understand the evidence to be that this was Bo.R.'s way of assisting or supporting her sister. It was not, as Justice Harper put it, "something more than physical possession or limited incidence of care." Bo.R. provided weekly respite care.

Likely Risk of Harm

[32] I am satisfied that there are reasonable grounds to believe that there is a risk that the child is likely to suffer harm if returned to Br.R.

[33] This risk arises from the following factors:

1. The child, as an infant, is particularly vulnerable. He is completely dependent upon his caregiver being able to provide for and protect him at all times.

2. Br.R. has serious medical conditions; major depression, anxiety, migraines, fibromyalgia and chronic pain, which require her to take medications. Though treated with medications, any one of these conditions can compromise her ability to care for the child. The medical letter does not address the effect of the stresses faced by Br.R.; the child's illness and Robert's behaviours.

3. Br.R. was observed by three different health care professionals to be overwhelmed, confused or dazed at times. If a concern had been registered by a single worker on one occasion, the explanations offered by Br.R. would suffice but this is not the case.

[34] It is in the context of the vulnerability and needs of the child, Br.R.'s medical conditions and observations by others of her impaired ability to function and consequently provide for and protect the child that gives rise to reasonable belief there is a risk the child is likely to suffer harm if returned to her care.

Can the Child be Adequately Protected if Placed with Br.R. Under Terms of Supervision?

[35] I find that at this time terms of supervision will not adequately protect the child.

[36] The extent of the support needed by Br.R. to adequately care for the child has not been established.

[37] As this case proceeds, the Society can investigate if the child can be transitioned back to the full time care of Br.R. with the help of B.L. and how this transition will take place.

[38] I accept Br.R.'s and B.L.'s evidence that they will work cooperatively with the Society and that her home is a proper one with all of the amenities necessary to care for the child.

[39] Being overwhelmed, as described earlier in these reasons, occurred when the child was a newborn, had to be hospitalized and R.C. had not yet accepted restrictions on his time with the child. Weekly respite care did not sufficiently ameliorate a risk of harm.

[40] The child's need for calm, stable and familiar surroundings together with significant time with his now primary caregiver must be taken into account. As Bo.R. wrote, the child is "...becoming more aware of his surroundings with each day that goes by."

[41] J.D.O. is a most fortunate child in that his grandmother and great aunt want to ensure his wellbeing and that he remains in the care of family members. The two sisters demonstrated an ability to work together to that end. Their partnership in this will most certainly benefit the child in meeting his need for love, stability, care and guidance. Allowing the Bo.R. to work with Br.R. in caring for the child will address, in a proportionate way, the evidence of Br.R. being overwhelmed.

[42] The Society workers did not want the child sharing his time between Br.R. and Bo.R. They told Br.R. that it was not good for the child to be uprooted every week. However, it was acceptable to the society that immediately after the birth of the child this weekly support be provided and there is no evidence that the time spent with each sister caused upset to the child. Respite provided by Bo.R. was of help to Br.R. However, as described by the health professionals the amount of respite did not appear to be enough for Br.R.

Order

[43] For these reasons, the child shall be placed in the temporary care and custody of Bo.R. and W.H. However, they will share responsibility for ensuring the child's medical needs are met including attending all medical and other appointments for the child.

[44] The child shall be in Br.R.'s care with the assistance of B.L. each Sunday at 12:00 p.m. (noon) until Tuesday at 5:00 p.m. In addition Br.R. may spend time with Bo.R. and the child at any time as arranged by them.

[45] This placement is subject to the following terms and conditions:

1. Br.R. and Bo.R. shall allow the Society to attend at their respective homes on scheduled and unscheduled occasions and to have access to the child;

2. Br.R. and Bo.R. are not to allow access to the child by A.O. or R.C. except as provided for in this order;

3. Br.R. and Bo.R. shall not allow any other persons to care for the children except B.L. or W.H. unless approved in advance by the Society;

4. Br.R. and Bo.R. shall keep the Society advised of their current addresses and telephone numbers;

5. Br.R. and Bo.R. will meet the medical needs of the child;

6. Br.R. will remain compliant with medical treatment and medications prescribed by her doctor(s); and

7. Br.R. shall keep all medications securely and safely stored out of the reach of the child.

[46] The respondent parents shall have access with the child for three (3) two hour visits per week supervised by the Society or third parties approved by it.

[47] The Society's investigation in this relatively recently started case is to continue. Information is needed to clarify the extent of the parents' abilities to parent, including any and all supports they may require. It must also continue its investigation of the plans which Br.R. and Bo.R. wish to put forward.

[48] The application is adjourned to a case conference August 31, 2015 at 10:00 AM in courtroom number 4 (45 minutes). If this date is not suitable to counsel or the parties alternate arrangements may be made through the trial coordination office.

[49] At the case conference, it is expected that counsel will address the following issues:

(i) whether expert evidence is needed to assist in the resolution of this case and if so by whom and on what timetable will be provided;

(ii) the services and supports the Society recommends;

(iii) the services and supports the respondents propose be provided; and

(iv) the timetable to have this case resolved as expeditiously as possible.

Released: July 27, 2015

"original signed and released"

Barry M. Tobin Justice