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 45(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

Ontario Court of Justice

Date: June 13, 2016

Court File No.: Red Lake, ON FO-15-009-00

Parties

Between:

Kenora Rainy River District Child and Family Services Applicant

— AND —

T.D. and K.D. Respondents

Before the Court

Justice Peter T. Bishop

Heard on: April 20, 2016 and May 9, 2016

Reasons for Judgment released on: June 13, 2016

Counsel

• David Elliott — counsel for the Applicant
• L Roberto — counsel for the Respondent – T.D.
• Mark Van Wallegham — counsel for the Respondent – K.D.
• Michelle Simone — counsel for the Office of the Children's Lawyer, legal representative for the children

BISHOP J.:

Introduction

[1] This matter comes before me by way of a Protection Application with respect to one child, Z.D., date of birth […], 2007.

[2] The child was apprehended on June 5, 2015 from the mother, T.D. alleging risk of physical harm and emotional harm contrary to Sections 37(2)(b)(i) and 37(2)(b)(ii) and 37(2)(g) of the Child and Family Services Act.

[3] The initial request by the Society was for a 3 month Society Wardship Order.

Background

[4] On June 12, 2015, this Court granted Kenora Rainy River District Child and Family Services temporary care and control of the child.

[5] On June 29, 2015, on consent, the Court ordered that K.D. have access to the child in Bonnyville, Alberta from July 4, 2015 to August 1, 2015.

[6] On July 27, 2015 Justice Cleghorn stated as follows:

"At this stage there is a real possibility of risk of harm to the child should she be returned to the care of the mother. The mother is currently suffering from mental health concerns that require time to stabilize. To the mother's credit she has begun the process of counselling however more is needed. A mental health assessment with a diagnosis will allow for the appropriate treatment plan to be put in place. Of further concern is the lack of supervision of the child that places the child at risk."

And further ordered:

1. On a temporary basis, the child, Z.D., born […] 2007, shall be placed in the care of Kenora Rainy River District Child and Family Services until further order of the Court.

2. Access between the child and the mother shall be at the discretion of the Society as to time, location, duration and supervision.

3. Pursuant to Section 38 of the Child and Family Services Act, the Office of the Children's Lawyer shall be appointed for the child.

[7] On October 5, 2015, this Court dismissed the father's application to place the child with him in Alberta.

[8] On February 29, 2016 Justice S. Cleghorn's order of August 4, 2015 was varied to reflect the Terms of the Voluntary Services Agreement executed by the mother but not the father with this child being returned to the temporary care of control of the mother, subject to supervision by Kenora Rainy River District Child and Family Services. The terms and conditions of supervision were as follows:

(a) T.D. will direct, support, reinforce, and uniformly encourage Z.D. to maintain a deep, enriched and meaningful relationships with both parents by participating in meaningful custody arrangement;

(b) T.D. will attend counselling to work on her mental health. T.D. will use counselling to address identified concerns around: emotional regulation, grief and loss over death of family members as well as grief and loss of personal/historical relationships; anxiety; stress; anger. T.D. will also learn about coping skills and techniques into her daily routine. During the course of counselling, T.D. will gain knowledge of how separation and conflict impacts family dynamics, psychological development, and family relationships. T.D. will complete any recommended assessments, follow any recommendations required, and follow through with all treatment plans.

(c) T.D. will set up Z.D. with counselling at Firefly to address concerns about anxiety over separation;

(d) T.D. will use Firefly services to learn about parenting skills. In addition to learning parenting skills at Firefly, T.D. will engage and attend parenting courses and support groups within the community of Dryden, Ontario. T.D. will consistently implement these learned techniques into her daily routine with Z.D. without using physical discipline;

(e) T.D. will ensure Z.D. is not engaged in parental/adult conflict and "adult issues":

i. T.D. will not expose Z.D. to any form of adult conflict or violence whether in the community, with family or with friends;

ii. T.D. will ensure all discussions are age appropriate, no adult conversations, no discussing previous relationships, current court situations etc.;

iii. T.D. will ensure a positive child focused living environment;

(f) T.D. will ensure that her home is free from hazards which may present as barriers, fire/escape hazards, etc.;

(g) T.D. will ensure that Z.D. is appropriately supervised in the home and in the community;

(h) Z.D. will have access to numbers and names of adults that she can contact when needing assistance for any reason (i.e. personal safety, fire safety, etc.);

(i) T.D. is to create a Safety Plan in regards to Fire Safety in the home and have Z.D. aware of this plan;

(j) T.D. will not be under the influence of any alcohol or other substances while caring for Z.D.;

(k) T.D. will allow Society Worker to meet privately with her child, Z.D., in the home;

(l) T.D. will allow Society Worker to enter her home for announced and unannounced visits;

(m) T.D. will agree to sign any consents to release or obtain information;

(n) T.D. will attend all Family Case Conferences held by the Society;

(o) T.D. will immediately notify the Agency should any of the aforementioned conditions be broken.

[9] Initially, Kenora Rainy River District Child and Family Services was to submit evidence by affidavit with the affiants to be present and subject to cross examination. Counsel for the mother objected to hearsay and the content of other issues in the affidavits and the Agency called all witnesses and focused their evidence which was within the witnesses' personal knowledge, information and belief.

Issue

[10] The only issue to decide at the trial was whether or not the child was in need of protection on the date of apprehension, June 5, 2015, as the disposition has already been agreed upon that no further Order of the Court is required.

[11] I have reviewed the evidence of Richard Kendall, J.O, Barbara Van Diest, Shelley MacKenzie, Robyn Dumontier, Michelle Nadeau, Aislinn Ivey and T.D.. As well, I have reviewed all of the case laws submitted by the mother's counsel.

Evidence of J.O. (School Principal)

[12] The mother called the principal of the public school, J.O who advised that on May 29, 2015 the mother came into her office and stated that she was being followed by her ex-partner and she thinks that he is linking into her cell phone and controlling her music. She stated that she was worried there was someone in her home whenever she is gone.

[13] The mother disclosed that she and her daughter have mutual psychic connections. This caused Ms. J.O. to be concerned about the mother's overall mental health but there was no concerns about the child's behaviour at school. The child was well dressed, clean and always had a lunch.

[14] Ms. J.O. observed the mother dancing outside and singing in the rain around the fire pit as early as 7:00 a.m. and that behaviour had happened for about one week. The mother told her she was seeing a counsellor but the child made no disclosures about abuse or neglect.

[15] Ms. J.O. stated that the mother asked her to attend at her home because the child was hitting her and could not be controlled. Ms. J.O. attended at the home and calmed the situation down and the child returned to school.

[16] Ms. J.O. was also concerned about the mother's emergency contacts which were really not emergency contacts in the event that the mother cannot be there for the child.

Evidence of Shelley MacKenzie

[17] Ms. MacKenzie interviewed the mother on June 4, 2015 who stated that "I know that people are watching us" and stated that she was struggling with paranoia and is manic.

[18] Ms. T.D. told Ms. MacKenzie that she was experiencing financial stress and could not pay her rent and is on sick leave from her job. She told Ms. MacKenzie that she was diagnosed as being bi-polar but believed that she was misdiagnosed as she has suffered from depression since she was a kid. She had seen Dr. Zahn in Ear Falls and also saw a psychiatrist Dr. Zahlan and was involved in community counselling and for addictions. She currently does not drink or use drugs.

[19] Ms. MacKenzie met with the mother who signed a Temporary Care Agreement but it was never acted on as the father wanted to seek legal advice and that became the primary reason why the child was apprehended. The mother further agreed that a Temporary Care Agreement was necessary as there was lack of supervision and she was experiencing difficulty or problems which caused risk to the child of likely being harmed. Essentially, Ms. MacKenzie outlined the Risk of Harm to the child and the mother fully understood.

[20] The mother told Ms. MacKenzie that there was a risk of physical harm as she had slapped the child and she was upset about her ex-partner. She stated that she needed time to get her life back in order and that the child was becoming aggressive and she admitted that she was exhibiting paranoia.

[21] The mother objected to placing the child with the maternal grandfather and made some allegations of bad behaviour on his part. That issue was eventually resolved.

[22] Ms. MacKenzie interviewed the child privately who told Ms. MacKenzie that her mother is upset because her partner left.

(a) Sometimes she gets up before the mom and makes her own breakfast as she gets scared when she sleeps. The child heard some bangs and noticed a shadow and thought it was her mother's previous boyfriend, but her mother did not see this.

(b) The child told Ms. MacKenzie that her mother instructed her to go over her friend's home but sometimes that friend does not know that she is coming or that her mother is away.

(c) The child was aware that a physician had told her mother to stay at home for thirty days.

(d) The child does not feel safe because she feels people are there and that they are old miners who still are around as they previously occupied the home.

(e) The mother has told her that someone is going to come and take her away from her. The mother slapped her in the face because she hit her mother.

(f) She described her mother as acting weird/funny but not in a good way and that the mother is sad lying in bed all of the time.

Evidence of Robyn Dumontier

[23] Ms. Dumontier is a Child Protection Worker and was responsible for facilitating access. She was not involved with the removal of the child from the mother's care.

[24] She reviewed the Plan of Care and went over it with the mother but the mother would not sign or not agree. She stated that she was behind on her rent and set up a payment plan.

[25] The mother was not in agreement with Ms. MacKenzie's observations and comments made by the child not withstanding that Ms. MacKenzie met privately with the child and the mother did not want to give Ms. Dumontier her current residential address.

[26] Ms. Dumontier counselled the mother not to allow the child to be exposed to adult conflict.

Evidence of Michelle Nadeau

[27] Ms. Nadeau is a Children's Aid Worker situated in Red Lake and met with the child on September 9, 2015. The child did not know why she was not at home or not with her mother.

[28] On October 27, 2015 the child went for a visit with the grandparents and an argument ensued in the presence of her mother.

[29] I have also reviewed a letter in the continuing record from Dr. Usama Zahlan, a psychiatrist, who was concerned about the mother's use of the drug cetirizine and the mother's ability to communicate telepathically.

[30] Dr. Zahlan treated the mother for bi-polar disorder type 2, and that diagnosis was noted by two or three psychiatrists prior to his involvement with this family. She was taking ipival but stopped its use quickly after she moved to Ear Falls with her boyfriend.

[31] She disclosed to the psychiatrist that she became a house hermit after the separation from her boyfriend.

Evidence of T.D. (Mother)

[32] Ms. T.D. separated from Z's father in early 2009 and began a relationship with R.N.. She and Mr. R.N. moved to Ear Falls in March, 2009 and then to Red Lake.

[33] She explained her dancing by the fire and singing as burning paperwork on her own property in the rain as she couldn't sleep.

[34] She called the school principal because she was experiencing anxiety in getting Z to go to school.

[35] She denies being a "helicopter parent" as she would go to school to bring a lunch if it wasn't ready in the morning. There was nothing harmful or emotional about this.

[36] She explained that she locked the door when the worker, Shelley MacKenzie, came to visit her because there were kids walking into her home from time to time.

[37] She talked to her child about ghosts and said they were creeping into her home. She thought that Ms. MacKenzie was, at first, an Educational Assistant or Supply Teacher.

[38] She stated that she did not slap Z.D. but squeezed her face and she doesn't feel that hitting is an acceptable form of discipline.

[39] When shown an unsigned copy of the Temporary Care she admitted that she signed something but did not recognize this as the document.

[40] She was looking for relief from her situation and wanted her child to go with her parents and thought that if the child was placed with her parents she would be coming back very shortly.

[41] She denied ever being diagnosed as bi-polar or if she was it was misdiagnosed. She denied saying that her father sexually abused her but there was an Uncle in the family that sexually abused someone.

[42] She denied telling the principal that she was happy that Z.D. was apprehended and she would have done the same thing if she were a child protection worker.

[43] She does not recall telling the principal of the public school that there was someone in her house or ghosts. She did not acknowledge that she was manic or experiencing paranormal situations.

Decision

[44] Having heard the evidence of the mother, I find her unbelievable and do not accept her evidence. Where there is a difference between the Society workers, the school principal, the vice-principal and others, I accept their evidence. The mother is engaging in a revisionist history of what really happened at the time of apprehension. The Society has proven at that time there was a risk of physical or emotional abuse.

[45] I am finding that the Children's Aid Society has proven at the time of apprehension the child was in need of protection pursuant to Section 37(2)(b)(i) and (ii) and Section 37(2)(g) of the Child and Family Services Act. For the following reasons:

i. The mother disclosed certain paranoia behaviour by stating that she was being followed by her ex-partner and a link to her cell phone was controlling her music. She was worried that there was someone in the home controlling her.

ii. She disclosed that she and her daughter have psychic connections although there is no proof of that and the daughter told Ms. MacKenzie that her mom was acting weird, not in a nice way.

iii. The behaviour of dancing in the rain and singing by a fire pit in the early morning for a period of time is not normal behaviour and I do not accept the explanation by the mother that she was simply burning personal papers. There is an inference that emotionally she was out of control which was recognized by the school principal.

iv. The mother asked for help from the school principal because the child was hitting her and the child was at risk of being physically disciplined by the mother.

v. The mother did not set up emergency contacts but left the child unattended and there was no one there for the child from time to time. The arrangements for the safety of the child were to go to a friend's or neighbor's house but the friend or neighbor had no idea that the child was instructed to do so.

vi. As a result of the mother's behaviour, the child did not feel safe in the home with her mother and felt that people were in the home, namely previous residences or ghosts were present.

vii. The mother told the child that someone is going to take her away from her.

viii. At the time of apprehension, the mother would not allow the child to go with her father and mother as she disclosed that the father was sexually abusive. She clarified that at trial but denied making that statement and with a vague suggestion that it was an uncle who was responsible.

ix. As the child's father sought to seek legal advice and the Temporary Care and Control agreement was not signed by him the Agency apprehended the child as there was no viable reasonable option to protect the child from the risk of emotional and physical harm.

x. I have reviewed and rely upon Section 50(1) of the Child and Family Services Act referring to past conduct toward children as follows:

(a) Justice Cleghorn ruled on July 27, 2015 that "there was a real risk of harm to the child should she be returned to the care of the mother". The mother is currently suffering from mental health concerns that require time to stabilize. My further concern was the lack of supervision of the child that places the child at risk. Also,

(b) I have reviewed Dr. Usama Zahlan's letter wherein he specifically stated "that he treated the mother for bi-polar disorder type 2 and that diagnosis was noted by two or three psychiatrists prior to his involvement with this family".

[46] As stated at the beginning of this hearing, all the parties agree that no further Order of the Court is required as matters have stabilized and the child is and has been placed with the mother since February 29, 2016.

[47] For all of those reasons, the Order of the Court is no further Order.

Released: June 13, 2016

Signed: Justice Peter T. Bishop