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 Information
File No: 122/14
Date: 2016-05-19
Ontario Court of Justice (West Region, at St. Thomas, Ontario)
Parties
Between:
Family and Children's Services of St. Thomas and Elgin
- and –
JPG & RLG
Endorsement of Justice M.P. O'Dea
Heard: May 9, 2016
Decision Delivered: May 19, 2016
Counsel
- Dana Hacklander, for the Applicant
- Mervin L. Riddell, for RLG
- Karen King, for JPG
- P. Allen Skuce, for the OCL
Background
The mother, JPG, and the father, RLG, cohabited and then married on October 4, 2008. Three children resulted from this union: GJG (born 2006); JPG (born 2008); and JJG (born 2010).
GJG experiences global developmental delays including speech deficits and various medical issues, namely seizures and weak muscle support resulting in coordination difficulties.
JPG experiences global developmental delays marked by an expressive language delay and a learning disorder. Like her brother, she also experiences weak muscle support. She is also diagnosed as anxious.
The family remained intact until May 27, 2014, when the parents separated. The mother commenced a domestic family law proceeding in July of 2014.
An order for an OCL social work assessment was granted on consent on September 12, 2014.
The mother refused access to the father until a court order issued. The first access order was made on October 10, 2014. After arguments, the court ordered that the mother would retain primary care and control of the children and that the father was to have secondary care and control of the children every Saturday and Tuesday and Thursday for fixed hours to be supervised in the father's home.
On October 24, 2014, the parties executed minutes of settlement that maintained primary care and control with the mother and that the father would have care and control on alternate weekends and a few hours every Thursday without supervision.
Following their separation, both parents began calling the Applicant to complain about the parenting weaknesses of the other. These calls were handled at first by the Applicant's intake department; however, due to the apparent depth of the conflicts between the parents, the Applicant decided in April of 2015 to formally open a protection file. Opening the file translated into a formal "intervention" by the Applicant into the circumstances of the family.
This file initially focused on providing services to the parents to improve their parenting skills. The evidence is unclear what services were offered to the mother. Services offered to the father will be described below.
Notwithstanding that the Applicant had intervened, the domestic family law case proceeded.
In September of 2015, the father moved to vary the October 24, 2014 care and custody order. He sought a week-on/week-off custodial arrangement. This motion was dismissed on December 4, 2015, given the father's failure to prove a significant change in circumstances since the last order. The father had a lot of complaints about the mother's compliance with supplementary terms of the October 2014 order and the court indicated he was free to move for more appropriate relief focused on these alleged shortcomings.
As a result of an accumulated series of events between October of 2015 and January 5, 2016, the Applicant reached the conclusion that the children were at risk of harm while in the care of their father. His next visit was scheduled after school on January 7, 2016. The Applicant took care and control of the children at the end of the school day on January 7th. This constitutes an apprehension as defined in the CFSA.
Upon apprehension, the Applicant placed the children in the mother's care and control. Its application seeks placement with the mother subject to supervision and significant restrictions on the father's access that was defined in the October 24, 2014 domestic order.
The father has moved to dismiss the protection application as an abuse of process; or, alternatively, that the children be placed in his care and control without any participation by the Applicant.
Both motions were argued today. Before addressing these submissions, the court needs to consider the father's procedural motion.
Motion to Strike
This motion has two components: to strike the whole of the affidavit supporting apprehension or, alternatively, to strike specific paragraphs of the same affidavit.
The motion to strike the whole of the affidavit supporting the apprehension is based on defectiveness and unfairness. The father argues it is a rambling narrative and devoid of focus wherein facts are unorganized as to issues. He argues that the sentiments articulated in CAS of Toronto v. M.A., 2002 ONCJ and in Catholic Children's Aid Society of Toronto v. S., 2008 ONCJ 274 apply in support of striking the entire affidavit.
With respect, while both cases chastised the respective societies for the affidavits filed, neither ever considered striking the entire document. Both cases addressed the deficits as an issue of weight.
The father has not identified a single precedent wherein an entire affidavit in support of interim placement has been struck thereby undermining an apprehension. The court seriously doubts such a precedent exists having regard to the well-established rule that process does not trump best interests.
In context of the motion to strike the whole of the affidavit, it needs to be recalled that on January 12, 2016, the court made a finding that the same affidavit identified a prima facie case for an apprehension without a warrant as defined in subsection 40(7) of the Child and Family Services Act. Having made that finding, it would be difficult now to accede to the father's request.
On the alternate motion to strike specific paragraphs, the father's submissions are based on hearsay, vagueness and unfairness.
The Family Law Rules (s.s. 14(17) to (19)) permit the use of hearsay in motions. The case law is extensive that this rule applies to child welfare proceedings. The purpose of identifying the source of the information as well as other information that specifically identifies an occurrence is to allow a responding party the ability to recall the occurrence and respond to it. These obligations are framed on the principles of fairness.
However, not everything that appears to be hearsay is hearsay as defined by the evidentiary rule.
Several of the paragraphs complained of do contain hearsay as they are offered solely to identify why and what the affiant went to investigate or as a summation of the investigation (see #'s 20, 36, & 39).
The informant in paragraph 48 was identified by her first name only. However, reading the father's responses to the incident described, he knew exactly who she was and the particulars of the incident she reported. Notwithstanding the failure to fully identify the informant, no prejudice resulted and the court will consider this paragraph as to weight.
The father's complaints respecting paragraphs 19, 23, 24 and 90 are based on vagueness and unfairness. These paragraphs are clearly the affiant's conclusions and the court had no difficulty finding the paragraphs she believed supported her conclusions.
The father's complaint respecting paragraph 83 is confusing. A comment from the father respecting his belief he is not required to cooperate with the Applicant is reported. The father argues the affiant did not identify who told him. The inanity of this submission is clear and requires no further discussion.
It was for these reasons that the court refused the request to strike the above identified paragraphs at the close of submissions on point.
As advised at the close of submissions, the court has excised paragraph 37 and the attached exhibit. The reference was to the results of an OCL social worker assessment in the domestic proceeding and the report was attached. The statutory test today is significantly different from what the social worker might deem necessary to investigate with the result that the report is irrelevant. Further, the only real value of the report or its results is to support the Applicant's suggestion that it was correct in apprehending and placing the children with the mother. That is for the court to determine – not a social worker.
Lastly, the father generally referred to the issue of bias on the part of the Applicant as he discussed the affidavit as a whole. This issue will be discussed below.
Interim Motions: General Legal Issues
The father has laid a significant number of general principles before the court and attempted valiantly to connect them to his client. It is difficult to determine from his submissions exactly how far he intends these principles to be applied but since it appears he believes they should be applied across all of the evidence, the court will address them fully.
His issues include the court's individual obligation to find and strike offending information in an affidavit delivered by the Applicant; alleged bias of the Applicant and its workers; the Applicant's obligation to track the domestic proceeding and apply facts arising within it to its investigation and decisions; the Applicant's placement decision; past parenting evidence and procedural fairness; abuse of process in context of the Applicant's gathering of evidence; and, the test for assessing evidence.
In addition, the father made a number of broad references to "Charter principles" but was unspecific which evidence or issues they might apply to. In the result, the court will address these Charter issues as broadly as the submissions appeared.
The court will address each of the father's issues but not necessarily in the order set out or individually.
The Court's Gatekeeping Role
The father mentions the court's "gatekeeping role" as support for the proposition that he need not object to every offending sentence in an Applicant's affidavit. By extension, the court infers he also would suggest the gatekeeping role imposes on the court a significant number of functions normally undertaken by counsel.
The gatekeeping role attributed to the Bench focuses the application of rules of procedure and evidence in context of how and why they have developed over the years for the purpose of assuring the most fair and just result following a hearing: Moge v. Moge, [1992] 3 S.C.R. 813.
The gatekeeping role is therefore broad and in the child welfare context, it imposes on Judges an obligation of oversight. The role is most frequently exercised in relation to broader evidentiary issues such as ordering and admitting assessments and regulating their use; the admission and use of expert evidence; the admission and use of third party records; and, the admissibility and use of hearsay evidence.
In this case, however, the father appears to suggest the gatekeeping role exists independent of counsel in that the court should, notwithstanding that no objection is raised, simply ignore any statement in the affidavits that the court considers to be unfair or that the court considers might create an unfairness.
With respect, that is not the court's role where parties are represented.
In the identified area which counsel believes the court should exercise a role independent of counsel and ignore evidence because it is hearsay, the court believes it is trite to say that not every statement that appears to be hearsay is in fact hearsay. As with most rules of evidence, there are exceptions, the exceptions are plentiful and to ignore a piece of evidence because it appears on its face to be hearsay without calling on counsel for submissions would create another and deeper level of unfairness.
If the father believes a piece of information is inadmissible, he must raise it and give all parties the opportunity to argue the question.
On these facts, the court believes the father raised the gatekeeping issue as a means of stressing his broader submissions respecting fairness. On the whole, most of his fairness issues go to the court's assessment of the evidence presented, not that the evidence being considered is, in and of itself, a breach of a rule of procedure or evidence. Many of these general fairness issues will be addressed below.
Allegations of Bias
The father's position respecting the Applicant's bias toward him is based on three factors: his allegation that the Applicant denigrated the role of counsel to his client; the Applicant's response to the father's refusal to cooperate with it; and, broadly put, the decision to place the children in the care of the mother.
As to the Applicant's denigration of counsel, this allegation is drawn from a single note made four months before apprehension in which the writer expressed an opinion that the father was using his lawyer to bully the workers.
People are entitled to their personal opinions; they are even entitled to note their opinions in writing. But, whether the opinion results in a biased position depends on something more than the mere recitation of the opinion.
The opinion focused the father's use of the fact that he had counsel rather than counsel itself. There is no evidence the opinion had any impact on the father's opinion of his counsel or the level of counsel's representation of the father's interests. There is no evidence of a course of conduct following the note evidencing a change in attitude by the workers toward counsel or the father or the fact the father had hired counsel. There is no evidence the workers attempted to interfere with the effectiveness of counsel's representation or the willingness of the father to seek out counsel's advice.
The father cross-examined two of the workers and no evidence arose from it that might support this particular allegation of bias. In the end, a finding of bias on this point is entirely speculative.
As to the father's cooperation, these submissions covered a lot of ground as a result of the father's focus on Charter principles. He appears to suggest if a constitutional problem is found to exist in the evidence, the court has the authority (and duty) to dismiss the motion as a consequence. In the result, the court's sense is the father believes a Charter right exists that can be breached and in the event of a breach, evidence can be excluded.
The weight of authority a society might exert is as significant as is the inability of most families to effectively respond to it. A society poses a fundamental threat to familial security whenever it appears at the door and as such the family and individuals within it are entitled to constitutional recognition and protection; New Brunswick v. G.(J.), [1999] S.C.J. 47.
However, the protection afforded in G.(J.) focuses principles of fundamental justice founded on procedural fairness but does not extend to parents the sort of protection the Charter rights defined in sections 8 to 12 extend to suspects in criminal proceedings: Winnipeg Child and Family Services v. W. (K.L.), 2000 SCC 48. As such, a parent facing a child welfare investigation does not have the same Charter right to be secure against unreasonable search and seizure, to the immediate advice of counsel and to remain silent as does a person facing investigation by police.
In the child welfare arena, the Applicant is statute bound to investigate allegations that a child may be in need of protection; and, there appears to be no corresponding statutory duty on the part of a parent to cooperate with an investigation. In the result, a parent is entitled to fall back on principles of fundamental justice in support of his/her right to refuse to cooperate with an investigation.
What constitutes an investigation is unclear but based on experience, investigations normally begin the first day a worker calls on a family for any reason and it continues until the society closes its file or terminates an order. In the result, the ability to withhold cooperation during an investigation appears to be quite extensive.
However, this right has its limitations.
A parent is not entitled to withhold a worker's access to a child for the purposes of an investigation and it appears the Applicant's right of access to the child has no apparent boundary: Children's Aid Society of Hamilton-Wentworth v. C., [1993] O.J. No. 2360; Family and Children's Services of St. Thomas & Elgin v. F.(W.), [2003] O.J. No. 717 and affirmed at [2005] O.J. No. 88. Further, this principle may also extend to a right of access to a child's residence if there is a causal connection between the alleged risk and the condition of the child's home.
Notwithstanding this limitation, the court is of the view that a parent who chooses not to cooperate with those aspects of an investigation that may tend to show he/she caused or contributed to a risk of harm to a child should not be weighed against him/her when cooperation is considered in context of subsection 51(2)(b).
The more difficult limitation is found in defining what aspects of a society's intervention is investigatory and open to a refusal to cooperate and what aspects are intended to "help" a parent in caring for his/her child (CFSA, s. 1(2).2) and therefore open to a claim of refusing to cooperate in the interests of a child.
The standard for State intervention into a family's circumstances is based on a societal interest in the protection of children. As stated in Re: D. (M.G.L.) by the Ontario Court of Appeal at, 41 R.F.L. (2d) 176 at p. 186, interference should only occur when the level of parental care falls below the minimum level of care to which all children are entitled. This is a very subjective standard and is assessed objectively.
The standard is fairly low and often is what initially gets a society's foot in the door. Where a society finds a parent is or is at risk of falling beneath the societal standard, it is statute bound to offer remedial services. These offers of service often occur long before a specific risk is identified and even though a risk investigation may be ongoing, an early offer of services may negate to an extent a parent's right to refuse to cooperate with the result that he/she may be at considerable risk of an adverse finding under s. 51(2)(b) at the interim stage.
The father's submissions appear to suggest that until the s. 51 assessment is concluded with a positive identification of a risk, the Applicant has no dispositional authority over him and the court should not consider a refusal of services any differently than a refusal to cooperate with the investigation.
With respect, to apply this suggestion would gut the paramount purpose of the legislation. It would clog the courts with unnecessary applications and motions whose only purpose would be to identify a risk so a reluctant parent might receive help. It is a best interest issue which is a standard every parent must respect and achieve. It is the standard whereby a right of a parent to protection under the law is trumped by the child's right to protection from harm.
There is support for the proposition that the best interests standard applies before a risk is identified by the court: Catholic Children's Aid Society of Toronto v. M.(C.), [1994] 2 S.C.R. 165; Children's Aid Society of Hamilton v. C.(M.), 36 R.F.L. (5th) 46.
On the whole, the submissions on this point of bias reflect the father's main theme that strongly suggests the court should prefer his rights, in this and the domestic proceeding over those of the children.
As to a factual basis for a finding of bias on the issue of failure to cooperate, none exists. The focus of these submissions was the father's rights and a factual basis is left to speculation.
As to the allegation of bias based on the placement decision, this factor will be addressed in the next heading.
Placement Decision
The father has raised the Applicant's decision to place the children with the mother as part of his abuse of process and bias allegations.
On an apprehension of a child, a society has some discretion where the child should be placed but its discretion is limited by statute. Subsection 37(1) broadly defines the locations where a child might be placed and subsection 37(5) focuses its obligation to consider placement "in a person's home if…. the person is a relative of the child or a member of the child's extended family or community".
Subsection 37(5) focuses the purposes of the CFSA identified in subsection 1(2) which include consideration of a parent as a least disruptive course of action, the autonomy and integrity of the family unit and continuity of care.
The father claims the decision to place with the mother constitutes an abuse of process since the decision gives the mother an advantage in the domestic custody/access proceeding. He claims the abuse also entails the Applicant's failure to fully inform itself of the positions of both parents and their strengths and weaknesses identified in the affidavit evidence in the domestic action.
With all due respect, these submissions are made without consideration of the statute governing the child welfare proceeding and the status quo existing in the domestic proceeding immediately before the apprehension - both of which, as will be made apparent in the discussion of the evidence - support the placement decision made by the Applicant. These submissions are an example of asking the court to apply a general principle of law independent of the facts of the case.
These submissions also fail to consider the differing statutory focus of today's proceeding and what is left to determine in the domestic proceeding.
These submissions also ignore the limited role the statute expects the Applicant to assume in the affairs of this family. It is expected pursuant to s. 15 of the Act to identify the risk(s), protect children from the risk(s), provide services to the family to prevent the recurrence of the risk(s) in the future; and, when these duties have been completed, terminate its involvement. Since remediation of the alleged risk(s) is entirely within the control of the father, he will dictate how long before the status quo in the domestic proceeding can be resumed.
Evidence of Past Parenting
The point of the submissions under this heading is unclear. The cases cited by the father are all trial decisions and, in the face of the nature of the proceeding today, they are all distinguishable.
Further, the Applicant has not alleged historic parenting evidence but rather evidence of the conduct of both parents since their separation in May of 2014 and which conduct the Applicant was called upon to deal with. The evidence the court is asked to consider today is evidence that will define the decision to intervene and apprehend. The evidence before the court today does not attract consideration under s. 50.
The only connection between the evidence and s. 50 that the court can discern from the submissions is that the father takes the position there is only one incident which the Applicant relies upon to justify the apprehension with the result that everything before it constitutes evidence of past parenting. With respect, the court does not agree.
Between June of 2014 and January of 2015, the Applicant's intake department had been called upon to investigate four incidents of deficient parenting alleged by either the mother or father. As a result, the Applicant decided to open a file for ongoing family services and a child protection worker was assigned to the file. Although the notes and records identified deficits on the part of both parents, what caught the Applicant's eye was the father's inability to manage his emotions while caring for his children.
Between April of 2015 and January of 2016, the Applicant alleges it observed continuous outbursts by the father and many involved circumstances in which the children were in his care. There were a few specific incidents wherein the father allegedly did not take steps to protect the children. The last incident disclosed, wherein a child was excessively disciplined for using foul language, was the incident that suggested to the Applicant it needed to intervene in a far more intrusive manner. In addition to its observations of the father, the Applicant made observations as the father rejected services and observations of his aggressive attitude toward the workers.
For the same reasons expressed in Children's Aid Society of Hamilton v. C.(M.), supra why a society was not limited at trial to the risks identified at the interim hearing, a society is not limited at the interim hearing to the specific incident that tipped the scales in favor of an apprehension. All evidence that relates to the best interests, protection and well-being of children is presumptively admissible: Durham Children's Aid Society v. P. (B), [2007] O.J. No. 4183.
The Interim Test
The test is defined in subsection 51(3). The father appears to submit that the test is to be assessed on a balance of probabilities. The Applicant submits the test is lower since the assessment is based on reasonable belief.
In Children's Aid Society of Ottawa-Carleton v. T, [2000] O.J. No. 2273, Justice Blishen described the interim test as follows:
"The Children's Aid Society must establish, on credible and trustworthy evidence, reasonable grounds to believe that there is a real possibility that, if the child is returned to his or her parents, it is more probable than not that he or she will suffer harm".
This test has withstood the passage of time and has been cited by all levels of courts in Ontario without subsequent attempt by courts at variation or modification.
Parsing the definition, Justice Blishen explains at paragraphs 7 to 9 that since experiencing "harm" must be likely, the harm alleged must be more than possible, it must be "more probable than not"; that while risk entails a chance or possibility, the chance or possibility must be real, not speculative; and, that the "risk of likely harm" does not have to be proved on a balance of probabilities but instead can be proved on evidence that is credible and trustworthy.
The "pathway" for interim relief is defined in subsection 51(2). Each step in the pathway must be addressed consecutively and it is not disputed that the Applicant bears the onus throughout. The term "pathway" is utilized to assure that all lesser intrusive orders are ruled out before the court considers the most intrusive order – placement with a society. Provided the court respects each step in the pathway, the interim process is deemed to meet the principles of fundamental justice and procedural fairness: Catholic Children's Aid Society of Toronto v. M.(C.), supra.
The first step in subparagraph (a) is the focus of the Blishen test described above. It is within this step that the society's motion can be dismissed in its entirety which is the least intrusive determination. In the result, if the court finds the alleged risk is speculative or the harm suffered is improbable or the evidence otherwise does not support the reasonableness of the affiant's belief related to incidents giving rise to the allegations of risk and harm, the motion may be dismissed and the status quo for the children restored.
Dismissals under subparagraph (a) are rare and when they have occurred, it was usually in circumstances of a single incident without possibility of ongoing harm such that a court order is unnecessary to protect the child in the future.
The second step in the pathway is defined in subparagraph (b) and it broadly defines the next level of intrusiveness, namely, a supervisory order. Subparagraph (b) defaults to a supervision order in favor of the person from whom the child was apprehended unless the society presents credible and trustworthy evidence supporting a probability based belief that, with even the most well-crafted terms, a child cannot be protected from harm in the care of that person.
This is the most difficult step in the pathway for a society and rightfully so in context of s. 1 of the Act. It is the crucial step basing the finding that the pathway meets principles of fundamental justice since it gives the person with the prior status quo an extensive arsenal with which to defeat a more intrusive order. Any term that might protect will usually defeat going on to step 3 as long as the term is "reasonable" and the word reasonable affords significant flexibility for both a parent and a court.
In his submissions, the father has not asked the court to consider placing the children in the care and custody of any other person defined in step 3 at subparagraph (c). In the result, the court has no need to discuss the balance of the subsection 51(2) pathway.
Assessment of the Applicant's Evidence
The court will identify the evidence it considers to be credible and trustworthy together with its reasons for so finding.
The historical evidence from Chatham-Kent and Algoma may very well be credible but as written, it has no real connection to the family's circumstances giving rise to this apprehension. In the result, the court gives this information no weight.
The historical evidence identified on page 1 related to the domestic proceeding is not challenged.
That the Applicant decided to open a protection services file in April of 2015 and its reasons are not directly challenged. The only challenge to this evidence, coming from the father, is that the Applicant's workers did not fully inform themselves of the allegations in the pleadings and affidavits in the domestic proceeding.
It is credible and trustworthy that the Applicant believed the domestic proceeding was high conflict and that it needed to intervene to protect the children from the conflict.
It is logically credible that the Applicant would believe that the developmental delays experienced by the two older children made them more vulnerable to their parents' conflict. The father does not dispute this fact.
It is credible and trustworthy that at some point after April of 2015, the father received advice that he was not obligated to cooperate with the Applicant. This finding is borne out by his conduct that will be reviewed below.
It is credible and trustworthy that within weeks of her appointment in October of 2015, the father was demanding a transfer of the file from the affiant to a new worker. It is equally credible and trustworthy that the father had no logical reason for this demand at that early stage apart from exhibiting his refusal to cooperate with services. The demand for a change has continued and in his exchanges since October of 2015 with the present worker, the father's intent to disrupt any form of relationship, no matter how helpful it may be, is most obvious.
The court finds the report of the father's rough handling of his oldest child in October of 2015 is both credible and trustworthy. The incident is not truly challenged; rather, its importance is dismissed. This incident involved a citizen watch the father, in an angry mood, forcibly pick up his son by the waist as the child was refusing to attend a visit with him. The father explained his need to be rough in that the mother was not properly disciplining the children, that the subject child was his mother's "suck" and that the mother was likely coaching the child to refuse to attend. That these comments were made is not challenged by the father and they add support to the conduct alleged.
The father does, however, challenge whether this sort of conduct is wrong or illegal. His position is that such conduct is appropriate parental discipline. This does not detract from the evidence referred to; it merely raises a legal argument.
Around the time of the above complaint, the Applicant was notified by the local hospital of a suspicion that the oldest child had been sexually abused. The doctor reported the child's comments to him and reported an injury to the child's penis.
The Applicant investigated the allegation with an interview of all three children as all were present during the event. They each identified the offender as the 13 year old child of their father's neighbor. As a result of the investigation, the Applicant verified that all three children had been inappropriately touched by the neighbor's child.
The Applicant immediately notified the father and he attended a meeting with his new partner to discuss the matter. He and his partner were visibly upset about the allegations claiming that the children were lying and that they knew the neighbor's child well enough to attest that he would never do such a thing. He expressed his opinion that their mother coached them to make the complaint presumably to damage his friendship with the neighbors.
The father and his partner both lost their composure at the meeting when a safety plan was recommended. He left the room and pouted in the hallway.
The father does not now challenge the incidents as alleged by the children. He does not now challenge his refusal to believe them. He does not now challenge his initial refusal to participate in establishing a safety plan. However, the court notes that after a safety plan was eventually developed, the father again stated he did not believe his daughter was assaulted during a discussion about other disciplinary issues with the worker. The father did not deny this allegation.
Around the time of the incidents described above, the worker arranged for the appointment of a parent support worker who would assist both parents in their disciplinary dealings with their children. The father initially agreed to this assistance but when the support worker attended for the first visit, the father became increasingly agitated to the point the worker became fearful and left the home. Before she left, the father refused to allow her to attend in the future while the children visited so she could role-model appropriate discipline. The court accepts this evidence as it is not specifically denied and it also supports the father's refusal to cooperate.
The support worker tried again about a week later and the father refused to meet with her. He called later to apologise but still persisted in his refusals in the future. This evidence is not denied.
The protection worker notified the father in writing about the complaints of fear of him being levelled by the children. The letter described in a very general way events the children were describing and their father's angry responses. The worker again recommended the father participate with the in-home support worker. He did not subsequently agree to do so. This evidence is not denied directly in his materials but the father relies on his denials to the worker when the letter was discussed.
However, the father could not control his emotions during that meeting and, with the children present, had to be reminded several times by his partner to calm down. He continued to blame the children's behaviors on the mother and he became so angry because the worker was not agreeing with him that she felt her personal safety could be compromised and she left. The worker's description of this meeting is not truly denied.
Subsequent meetings ended with similar results – particularly the father and his partner's loss of temper and clear refusals to cooperate as services aimed at eliminating the parent/child conflict were offered.
The court finds the evidence respecting the father putting soap in one of the children's mouth to be credible and trustworthy notwithstanding the father's denial that the incident occurred. This was not the father's first angry response toward this child for foul language. That the father would become angry is borne out by almost all of the evidence tendered by the Applicant and his belief of his right as a parent to discipline his children. Notwithstanding that the child's disclosure to the Applicant occurred several weeks after the event, the event is unique enough that it is not surprising she would generally recall the incident.
Assessment of the Father's Evidence
The father's evidence is somewhat difficult to assess as it is primarily focused on misdirection from child welfare issues to the domestic proceeding or the conduct of the Applicant; and, is heavily laden with argument.
The father's focus in his evidence as he discussed the alleged incidents supporting harm was on the mother's deficiencies as a parent and the workers' deficiencies as note keepers or their bias against him or his lawyer.
He parsed each incident of inappropriate discipline on his part as alleged by the Applicant. He acknowledged the children's difficult conduct, advised that such conduct demanded greater discipline because of the mother's failures and simply denied anything he did to discipline was inappropriate. He alleged his comments to workers about these incidents were underreported in that they would leave out his reports which, in his mind, proved the mother was at fault for the behavior he was required to deal with.
He acknowledges he would raise his voice at the children but denies any of his efforts at discipline was undertaken in anger notwithstanding that in the same breath he blamed the need for excessive discipline on the mother.
The father's primary focus in his affidavit was on evidence relevant to the domestic proceeding and his complaints that the workers did not give that evidence appropriate consideration before the decision to place with the mother was reached. Many of the arguments recited in his affidavit and repeated in submissions focused the domestic proceeding.
He appears to deny in his affidavit that he disbelieved the children in regard to the sexual assault of mid-October, 2015. If that was his intention, he withdrew the denial in submissions acknowledging he had made a "mistake" and has since come to accept the children's allegations.
But for the soap incident, nothing else is clearly denied; most of what is offered is his explanations, blaming others and argument. Looking at his affidavit and factum side by side, both present essentially the same information.
Analysis of the Evidence
The court finds the father's hearsay issues respecting the Applicant's materials to be inconsequential. The affidavits, as prepared, offer first hand evidence of the events described and there is nothing therein that demands intervention save and except on an analysis of weight. None of the affidavits filed meet the abuse of process test described in the cases tendered by the father.
The court finds that the father's broad allegations of bias are without foundation in context of the role of counsel or in regard to evidence of failure to cooperate. It is not difficult to separate failure to cooperate with the investigations from the failures to cooperate with services.
In regard to bias flowing from the decision to place the children with their mother, the decision was rational considering the law and the status quo in the domestic orders.
Considering sections 37(5) and 1(2) together, no other decision would have met the clear statutory demands the Applicant must factor in reaching its decision. Considering that the father did not elect to challenge the mother's primary caregiving role in the domestic proceeding, it is ingenious to now use this fact as an aspect of misdirection in the child welfare proceeding.
In the court's mind, there is no statutory obligation on a worker to fully inform him or herself of the positions taken in a concurrent domestic action. There may be some facts that would prove relevant to the issue of risk; however, the father's primary complaint today is that the worker did not factor the mother's failure to abide by a number of ancillary obligations defined in the last domestic order into her placement decision. Those failures would be irrelevant to the placement decision regulated by sections 37(5) and 1 of the Act.
The court finds that someone told the father he was not obliged to cooperate with the Applicant. As indicated above, he is entitled to do so in context of the risk investigation. However, the father elected to extend his refusal to cooperate into areas that were clearly focused on best interests. Unfortunately, whoever told him did not explain how to decline participation responsibly.
The value of the Applicant's offer of in-home services to address difficulties parenting children with developmental delays became painfully clear by October of 2015 and the father's refusal will merit considerable weight in the subsection 51(2)(b) assessment as a whole. Even the father did not disagree with the need for the services – he disagreed that the need emanated due to his deficiencies rather that his wife's.
The court acknowledges that this finding significantly blurs the right not to cooperate with an investigation given the facts herein. In this case, the father was rarely put in a position to incriminate himself. He could refuse to participate in discussions respecting specific risk allegations. But in this case, all that was really needed to identify risk was to watch him during interactions with his children.
The court respects his right not to discuss specific allegations during several meetings and will not consider these to be refusals to cooperate. However, in the interests of the children, one cannot ignore the angry manner in which he announced his refusal to cooperate since his ability to control his anger appears at the root of his major parenting deficit - managing the conduct of his needy children without some level of violence.
In regard to cooperation, the court notes the vehemence with which the father persisted in demanding that his rights be respected and with which he refused programs in the interests of his children. This level of selfishness is hard to ignore.
For the reasons set out above, the court finds the accumulation of evidence and observations after April of 2015 until January of 2016 will apply to support the decision to apprehend. In the result, on applying the subsection 51(2)(a) test cited above, the court finds the children have experienced emotional harm in regard to the father's inability to control his temper in their presence and while disciplining them. The effect of his conduct on his children is clear and therefore real.
The court also finds a risk of inadvertent physical harm is real in regard to the father's belief that exaggerated misbehaviour by the children must be responded to with exaggerated discipline. The misbehaviour attributed to the two older children is mainly the result of their respective delays and the father has not yet shown a willingness to accept this fact independent of blaming someone else for the fact that his response must be exaggerated.
As to the father's right to discipline, s. 43 of the Criminal Code would justify a parent using physical discipline in correcting a child under his care provided the level of force used does not exceed what is reasonable in the circumstances. What is "reasonable in the circumstances" is defined as a use of force, not exercised in anger but "for educative or corrective purposes and the child must be capable of benefiting from the correction": Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4, 180 C.C.C. (3d) 353.
As the evidence presently stands respecting subsection 51(2)(b), there is no reasonable chance that the father will cooperate with any reasonable term in a supervision order to allow the court to reinstate his pre-apprehension access regime. His irrational and unfounded animus and lack of respect for the Applicant and its workers is palpable. There is nothing in his evidence that might allow the court to infer that this attitude will change with the delivery of these reasons. In the court's mind, his attitude appears quite entrenched and the reason for his entrenchment will not abate until the domestic action is resolved.
In this context, his attitude about fault significantly diminishes any hope for future cooperation. He appears to firmly believe that but for his wife and her family, the deficits identified in his parenting would not exist. Unless he accepts some level of responsibility, his engagement with programs in the future will be as marginal as was his engagement with the 2014-15 parenting program during which he refused to participate and had his partner complete his written homework.
In the result, the court finds the Applicant has satisfied the court that a risk of harm exists as defined in s. 37(2)(b)(ii) and (g) of the Act. The court finds the risks identified are sufficiently ongoing to demand a court order for the protection of the children.
The court finds that Applicant has satisfied the court that the father's care and control under the October 24, 2014 domestic order cannot be reinstated without supervision.
The court finds there are no supervision terms that the father will acknowledge as necessary for the protection of the children; or, will acknowledge that his personal deficiencies support the need for terms.
The court finds that no matter how well-crafted terms may be, the father will diminish the need by blaming others with the result that his participation will never offer a hope of some level of success.
Access
In the without prejudice order, the father was granted 8 hours weekly with the children. His access was fully supervised at the Applicant's visitation center. In the event his placement motion is dismissed, the father asks that his 8 hours continue and that his access occur in his home.
The Applicant's position respecting access is that the children refuse to visit at their father's home because they are afraid of his temper tantrums and his aggressive discipline. In the result, it wants his visits to occur at the visitation center and it wants his access reduced to 2 hours weekly.
The evidence supporting this position comes from the mother and the children. The mother claims she tries to get them to go but they refuse. The children, in their drawings of "mom's house/dad's house" which are undertaken to identify their personal fears, the oldest child indicates he feels happiest at mom's house and does not want to go to his dad's because of the yelling that frightens him. The other two children report the yelling and their basic refusal to attend but did not complete the drawings.
On one hand, given the father's presentation since April of 2015, the position expressed by the children appears to make sense. On the other hand, there is evidence tending to show that the children's positions may not be their own.
In his evidence and submissions on the s. 51 assessment, the father blamed the mother for a great number of her own and his deficiencies – all without any basis in fact. In the result, almost all of his submissions were rejected for the speculation they entailed.
However, there is a definite fact base respecting the mother's propensity to use the children to weaken the father's relationship with them which has a firm connection to the access issue.
When the parties separated, the mother refused to agree to access of any sort for the father until a court order was obtained. A society intake worker spoke with her in June of 2014 and strongly recommended to her that she allow access in the interests of the children. The mother ignored this advice several times and never gave a reason justifying her refusal.
In October of 2014, the daughter was seen at hospital for redness in her vaginal area. Immediately after this visit, the mother told the worker that the child claimed her father "touched me down there". This was investigated. The Applicant knew immediately that the mother's report was false given the supervision at the visit the mother claimed the event occurred and given the child's failure to confirm what her mother reported. These findings were not a matter of verification; the Applicant knew the allegation was false.
There is also evidence that after the separation, the mother encouraged the children to call the father by his given name rather than "dad".
In the Intake workers notes, it was stated under the heading "Further Intervention" that "Mother will be cautioned about using the children as a tool to get back at the father and in an effort to sabotage access". There is no evidence of a worker following through with this intervention notwithstanding that these incidents supported the workers finding of "ongoing high risk" to the children due to parental conflict.
When the Applicant offered in-home support to the father, it offered the same to the mother. There is a generic comment in the materials that she has cooperated but there is nothing specifically identifying what she was taught, how she responded and how well she has applied what was taught. Further, there is no evidence this service addressed the aforementioned intervention.
Additionally, neither of the present workers commented on the prior report about using the children. Neither appears aware of it gauging by what is not said in their affidavits. This supports an appearance of neglect but certainly not the level of bias demanded for an abuse of process finding supporting the outright dismissal the father demands today.
Considering their history, the court suspects the children experienced some level of inappropriate discipline before their parents separated and the court suspects they each had, to an extent, become accustomed to yelling and fighting. None of the children appeared reluctant about access with their father in the early stages of the separation.
The first hint of a reluctance to attend did not occur until mid-November, 2015 when the worker interviewed them about their opinions about access. Notwithstanding their negative views, they continued visiting their father and stayed with him for a lengthy period over the Christmas school break. During this visit, a worker attended for a brief stay and made observations of power struggles between the oldest child and his father.
On the materials filed, it is impossible to determine whether the children expressed a preference not to visit before or after the apprehension. When the materials are considered as a whole, it appears it was not until after.
The first visit occurred on January 13, 2016 and while the oldest child was cool toward his father, the visit progressed without incident.
On the second visit on January 19, 2016, the youngest child was driven to the center but refused to enter. The two other children remained. Both were cool toward their father but the materials indicate he responded appropriately throughout. The oldest was also repeatedly aggressive toward his father who responded appropriately.
Of note, when the children were picked up by their mother after this visit, the mother reported when she asked the oldest child how he was, he responded by pointing to his penis and said "daddy".
In an interview the following day, the youngest child was asked what he thought about the visits with his father and he responded "bad" and when asked what could be done to make the visits better, he responded "pray". He acknowledged his father was nicer at the center than at home and it would be OK if he visited at dad's home as long as he was nicer.
The middle child also reported that visits with her father are "bad" whether at the center or in his home. She complained that he yelled too much and that he owed her an apology for the soap incident. On a scale of 1 to 10, she listed her father as a 1 related to her safety.
The oldest child was not interviewed.
The oldest child came but refused to remain at the third visit on January 27th. The others were cool toward their father but he responded appropriately.
The youngest refused to attend the February 3rd visit. The others remained. The father appeared to be frustrated by the children's coolness toward him and he responded poorly in their presence. This resulted in power struggles between him and the children. This visit did not go well in that the children saw their father in an angry state.
The youngest was interviewed again on February 5, 2016 wherein he stated he did not intend to go to further visits because his father is mean and on the scale for safety, he ranked his father as a 1.
Only the oldest attended the next visit and he presented as excited to go. This visit went very well and both father and son enjoyed their time together.
Visits following the preparation of the affidavits were not reviewed during submissions. Based on the very general statements by the Applicant and father, the court gets the sense that visits have not occurred since early February.
Analysis: Access Evidence
If the Applicant's reason for reducing the father's access time is based on the children's refusal to attend, the court does not see the rationale in two hours weekly against eight. If they won't come for eight, why would they come for two? Further, if the children are honestly refusing to attend, it will require as much work to get them to attend for two as for eight hours.
While it is fair to say that the father, by his pre-apprehension conduct, may very well be the author of some of the children's preferences respecting access, the court is entirely uncertain that he is the only author. On the evidence, the court senses adult input into the decisions of the children.
The evidence doesn't help the court to assess the capacity of the two older children to express their feelings considering their developmental delays. The court knows the oldest has a speech impediment and the middle child is anxious. In assessing the evidence today, the court sees no hint that either worker "factored" these delays in regard to how much of what a child said was accepted without question.
The court does not accept the drawings of mom's house/dad's house should carry much weight. If there was adult input reminding them of the fear they should have of their father, the weight of the drawings would be diminished by this input.
There is next to no evidence about the youngest child's circumstances pre-apprehension while in his father's care. He has no developmental delays. Although he witnessed his father's anger toward the other children, there is no evidence how he responded to what he saw apart from a few comments that he did not like the yelling or seeing his father angry.
There is no evidence that anything worth reporting occurred during the first visit in the youngest child's presence; and, even though he never appeared to be targeted historically by his father for inappropriate discipline, he is the first child to refuse to attend access. This doesn't add up.
Further, this child's comments in the interview following his refusal do not add up either. The court found his responses to the questions put to him to be unusual, particularly the reference to praying for improvements to access. This is a form of analogy that should be foreign to a 5 year old. A child his age would normally respond by reporting his feelings. Further, this report, when read as a whole, is entirely non-committal respecting his reasons or even his willingness to attend in the future.
The court found the oldest child's alleged response to his mother after the January 19th visit to be strange and entirely without context to the question put. Considering her efforts to abase the father in the past, the court questions whether this event occurred at all and whether the oldest child sees his mother as a mentor in all matters respecting access.
If the children, by their refusals, were responding to pre-apprehension incidents of excessive discipline and/or angry outbursts, the court would expect their refusals, or at a minimum, reluctance to attend, would have begun long before the apprehension. The court questions the logic of refusals where some of the children attended the first and subsequent visits; and, the court would not expect the wavering by each of them respecting attendance until February 9th.
While there is no direct evidence implicating her or anyone else, the court infers the mother is directly or indirectly informing some of the children's recent attitudes toward access. This may be an indirect result of the children overhearing adult conversation or the direct result of her input by constantly reminding the children of the importance of fearing their father.
This inference is, the court believes, fair because there is no evidence that the mother's pre-apprehension attitude about using the children has changed. This is clear from the ongoing high conflict flowing from the separation; it is also clear in that this sort of attitude doesn't just magically disappear – it needs to be worked on and there is no evidence the work has been undertaken.
On a review of the materials as a whole, the court finds no reference that either worker ever considered the possibility that the refusals may not originate from the children alone. Having regard to the very clear evidence respecting the mother's attitude referred to above, the possibility had to be weighed before they automatically accepted that the children's refusals were connected solely to the father's conduct.
In this context, the father had some basis for questioning goodwill exhibited by the workers in their reporting, their evidence shown by an effort at being balanced as between the parenting deficits in the interests of the children.
The court also notes the mother has been bringing the children to the visits and with her presence, the children may be reluctant to attend for her sake rather than of their own volition.
Finally, the court finds the "coolness" exhibited by the children toward their father to be a uniquely adult response to someone disliked and the wavering on decisions to attend or not strongly suggests to the court the children still want some level of contact with their father. The court is firmly of the belief that something or someone external is affecting their choices.
In the result, the court intends to maintain the existing access schedule and will bind the parties to terms that are capable of focusing evidence on a review in the event that change does not occur.
Order
For the reasons above, the court orders:
1. The children's interim placement and terms is endorsed as asked at Tab 3, paragraph 3(a) to (k).
2. The father shall have initial interim access to the children subject to the following terms and conditions:
(a) The father shall have access to each child individually for two hours at the Applicant's Supervision Center and this access shall be undertaken in the first week of implementation of this order.
(b) Dates and times shall be coordinated by the Applicant.
(c) The father shall comply with each and every rule demanded by the Supervision Center.
(d) The Applicant is solely entitled to nominate the workers who are required and entitled to attend these visits and the father shall not question and will fully cooperate with its decisions in this regard.
(e) The father shall attend each of the individual visits 30 minutes in advance to meet with a worker whose task is to advise him of the specific limitations experienced by the child who will attend that day which may require his intervention together with recommendations respecting the appropriate intervention to that child's expected challenging conduct.
(f) The father shall make his best effort to listen to and follow the advice and recommendations without question or excuse.
(g) Neither the mother nor anyone on her behalf shall discuss this order with any of the children or make any attempt to interfere with a child's right to attend any access visit ordered herein.
(h) The Applicant shall provide transportation to each visit and the mother shall provide transportation at the end of a visit.
3. Commencing in the second week following implementation of this order, the father shall have access to all three children for a minimum of eight hours weekly at the Applicant's Supervision Center.
(a) Dates and times shall be coordinated by the Applicant.
(b) The father shall comply with each and every rule demanded by the Supervision Center.
(c) The Applicant is solely entitled to nominate the workers who are required and/or entitled to attend these visits and the father shall not question and will fully cooperate with its decisions in this regard.
(d) The father shall exert his best effort to listen to and follow the advice and recommendations given in the first week without question or excuse. The Applicant shall both observe the father's application of the prior recommendations and intervene to remind him (where necessary) or instruct him in the event of new challenges not previously covered.
(e) Neither the mother nor anyone on her behalf shall discuss this order with any of the children or make any attempt to interfere with a child's right to attend any access visit ordered herein.
(f) The Applicant shall provide transportation to each visit and the mother shall provide transportation at the end of a visit.
(g) The Applicant is entitled to remind the father of the conduct expected of him during any of the visits described above and the father shall follow the directions given without comment.
4. The access and terms ordered herein shall be reviewed no later than September 29, 2016 and the review shall be scheduled on a date the court is presiding.
5. The scope of the review is limited to the father's ability to cooperate during visits; the response of the children to visits; the need for continued supervision; where future visits might occur; and, transportation obligations.
Justice M.P. O'Dea