PUBLICATION BAN NOTICE
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(7), 45(8), 45(9) AND 85(3) OF THE CHILD AND FAMILY SERVICES ACT
Statutory Provisions
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:
Section 45
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.
Section 85
85.— (3) Idem.
A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
Court Information
Court File No.: FO-15-00000327-0000
Date: 2016-06-02
Ontario Court of Justice
Family Court
Parties
Between:
CHILDREN'S AID SOCIETY OF BRANT Applicant
- and -
A.J. Respondent
- and -
M.S. Respondent
- and -
S.D. Respondent
- and -
LIARD FIRST NATION Added Party
Reasons for Judgment
Before the Honourable Justice K. A. Baker
on June 2, 2016, at Brantford, Ontario
Appearances
- V. Kaljaste – Counsel for the Applicant
- E. Montour – Counsel for the Respondent A.J.
- J. Zarboni, agent for D. Maltby – Counsel for the Respondent M.S.
- P. Vandervet – Counsel for the Respondent S.D.
- A. Giles – Counsel for the Children
Judgment
BAKER, J. (Orally):
This is a temporary care hearing in regards to the three subject children, Z.M.J., age eight, I.S-J., age seven and J.L.J-D., age four. The mother of the children is A.J. The father of the children Z. and I. is M.S. S.D. is the father of the youngest child, J.
More recently, it was determined that the children are eligible for Native status and the Liard First Nation was added as a party on May 11th, 2016. The Society was ordered to serve the First Nation forthwith with all pleadings and to notify them of the temporary care hearing date. The First Nation did not, however, participate in this hearing and has not to date served and filed any materials.
The Society is seeking the confirmation of the current temporary without prejudice order that places Z. and I. with their father, Mr. S., subject to supervision, and an order that places J. with his father, Mr. D., again, subject to supervision. Both fathers and the OCL are joined in that position. The mother seeks the return of the children to her care.
Preliminary Issue: Who Had Charge of the Children
At the outset of the hearing, it became apparent that the outcome of the hearing would likely turn on the issue of who had charge of the children immediately prior to the intervention of the Society. The Society and Mr. D. didn't seem to have a position in this regard. Mr. S. and the OCL were joined in the position that each father had charge of the children immediately prior to the intervention.
Due in part to the lateness of the hour when the matter was reached, it was determined that this issue would be adjudicated first. As the determination of this issue informs and, indeed, is pivotal to the subsequent analysis, this would also seem to be the most efficient manner in which to proceed. This judgment deals only with that issue.
Background Facts
The Society has been involved with this family on various occasions since 2007. The identified concerns historically have been domestic abuse and, for the mother, alcohol and drug abuse. The Society has been continuously involved since October 2014. Initially, this was through voluntary service agreement.
One of the terms of the agreement was that the mother and Mr. D. were not to consume alcohol. Notwithstanding this term, there were various occasions when the mother and Mr. D. did consume alcohol. At times, police would be called as a result of the ensuing domestic conflict. Both of these parties were charged criminally with various offences, including breaching orders prohibiting contact with each other. The children were impacted by what seems to have been a fairly chaotic home situation. Z. in particular spoke of his mother being sick and needing to get better.
In August 2015, the mother left the children with various family members whilst she went on a "bender". Very shortly thereafter, on or about August 9th, 2015, Mr. S. learned that his children were with the paternal grandmother and he went and picked up the children and assumed care of them. They have been in his continuous care since that time. The evidence is less clear as to when Mr. D. assumed day-to-day care of his child, J. It is, however, apparent that sometime over the months of September and October 2015 Mr. D. assumed that role.
The Society continued to work with the family on a voluntary basis following the developments in August 2015. The mother was encouraged to attend services to address her alcohol problem. Ms. J. was not, however, able to successfully address those concerns and continued to consume alcohol. The mother was also charged with various criminal offences over the fall of 2015 and she was intermittently in and out of custody.
On October 27th, 2015, the Society commenced the herein and protection application, seeking orders that the children be placed with their respective fathers for a period of six months pursuant to orders of supervision and a temporary without prejudice order in this regard confirming these placements has previously been made.
Legal Test for Temporary Care Hearing
The legal test for a temporary care hearing is set out at Section 51 of the governing legislation, being the Child and Family Services Act. That legislation sets out a hierarchy of orders that a court may make. The preference, of course, is for the least intrusive order that is consistent with the best interests, protection and well-being of the subject children.
The onus is on the Society to show that there are reasonable grounds to believe that there is a risk that the child is more likely than not to suffer harm if returned to the person having charge of them immediately prior to the intervention. The Society must also show that the child cannot then be adequately protected by a supervision order if the child was to be returned to the person having charge prior to the intervention. The Society must show that it is more probable than not that, if returned to the parent, the child will suffer harm. The risk must be real and not merely speculative.
Definition of "Charge"
In order to apply the proper test at this hearing, it's necessary to determine who had charge of the children immediately prior to the intervention. The term 'charge' is not defined in the legislation. It has been interpreted in the case law. In Children's Aid Society of London and Middlesex v. S.D. et al., Justice Harper considered the meaning of the phrase, "person who had charge of the child" and he reviewed the existing case law interpreting that phrase.
The first such case is that of Children's Aid Society of Algoma v. Teena et al., a decision of Kurkurin, J. The court found therein that 'charge' has the connotation of authority and responsibility. The charge of a child suggests some kind of established relationship, not something merely transient or temporary. Specifically, Kukurin, J. did not think that simply having possession of a child was sufficient to bring that person within the meaning of the term 'charge'.
In Children's Aid Society of Ottawa v. H.C. and C.C., Justice Blishen also considered the meaning of the term 'charge'. The court found that charge was linked to the term 'care and custody' and found that the term 'charge' is akin to questioning who had care and custody. Like Justice Kukurin, Justice Blishen was of the opinion that there had to be an active relationship of care and not mere possession of the child.
In Children's Aid Society of Toronto v. S.A., 2008 ONCJ 348, Justice Spence considered the same issue. In that case the court splits the idea of charge and custody. The court adopted a definition of charge that is grounded in actively caring for the child and potentially distinct from the legal notion of custody. Justice Spence ultimately determined charge to mean an active caring relationship.
He then went on to say, "Clause 51(2)(a) of the Child and Family Services Act does not talk about returning the child to the person who had custody, but rather returning the child to the person who had charge of the child." There clearly is a difference between the meaning of custody and charge. There could be many instances when a person has custody of the child and another person has charge.
Spence, J. gives an example of his reasoning to demonstrate the difference. He describes a situation whereby a single mother who has custody of a child informally relinquishes that child to an aunt for care purposes. After several months in the aunt's care, the child would no longer be in the mother's charge but, rather, the aunt's.
This reasoning is adopted by Justice Harper in Children's Aid Society of London and Middlesex v. S.D. He explains his reasoning at paragraph 30 of that decision by saying:
I'm of the view that Section 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 prior to the intervention.
CAS of London and Middlesex is a decision of the Superior Court of Justice. I'm of the view it would be binding upon this court. I also find Justice Harper's reasoning highly persuasive.
Other cases have discussed the extent to which how the placement arose impacts on the establishment of the status of having charge of the child. In Catholic Children's Aid Society of Toronto v. W.I., 2014 ONCJ 62, Justice Sherr finds that the court must concern itself with the nature of the relationship between the person and the child to determine whether or not the person has acquired the status of having charge of the child, rather than how the placement arose. The criteria applied by Justice Sherr is whether or not there is active caring by the person and the taking of responsibility for the child. The same reasoning was adopted by Justice Parent in Children's Aid Society of the Region of Peel v. A.C., 2015 ONCJ 482.
Determining the Relevant Timeframe
Although not argued, it seems to me that it's also important to consider the appropriate definition of the phrase, 'immediately prior to the intervention'. The Act requires that the assessment of who had charge of the child be made in relation to a particular timeframe. Here, as in many cases, there are two particular events that could constitute the intervention. These are the signing of the collaborative services agreement on September 18th, 2015, and the commencement of the protection application on October 27th, 2015.
I accept that the signing of a "voluntary" agreement with the Society could constitute an intervention. This is because many of the so-called voluntary agreements are not so voluntary at all and may be signed because the Society insists. In this case, however, I'm satisfied that the signing of the agreement is not the appropriate date by which to assess the point of intervention. The reason is that the signing of the agreement was not the act that deprived the mother of the day-to-day care of the children.
Although, at paragraph 109 of her affidavit, the responsible Society workers says that the agreement provides the children would be in the mother's care, this is not in fact set out in the body of the agreement. At the time, the children Z. and I. remained in the care of the father, Mr. S., where they'd been for about five weeks. The situation regarding J.'s placement is less discernable on the evidence although, as of the moment of the signing, J. seems to have been in his mother's day-to-day care.
However, throughout September and October of 2015, as a result of a warrant for the mother's arrest and her subsequent and intermittent incarceration, it's clear that the mother was not, in fact, caring for these children and the logical inference from the totality of the material seems to be that Mr. D. assumed that responsibility.
Essentially, then, as a result of her own volitional acts, the mother made herself unavailable to care for the children in August 2015 and then again throughout the months of September and October 2015. Therein followed a battle in the Superior Court of Justice between Mr. S. and the mother over whether there would be a temporary order effecting a change in the custody order previously granted in favour of the mother.
Although the court did not grant the temporary relief and the mother thus retained custody of the children, she did not in fact seem to have secured the return of the children to her day-to-day care. It therefore seems to me that the appropriate date by which the intervention should be defined is the commencement of the protection application on October 27th, 2015.
Application of the Law to the Facts
Who, then, had charge of the children prior to the intervention? Ms. J. embarked on her bender in early August 2015. She effectively abandoned these children with various family members to pursue that endeavour. The two older children had been with their father since August 9th, 2015, so as of the date of the commencement of the protection application first return on October 27th, 2015, the father had been providing hands-on primary care to Z. and I. for two and a half months.
Mr. D. had been caring for J. for a shorter period of time. He would have had continuous care of J. since at least October 13th, 2015, because that's the day that the mother turned herself in on a warrant. In her answer and plan of care dated November 26th, 2015, at Section 2, the mother acknowledges that the children Z. and I. were in her care from birth until August 2015. She notes that thereafter, their caregiver was Mr. S. With respect to J., the mother indicates that J. was in the mother's care from birth until blank. She notes Mr. D. as a caregiver immediately after Mr. S. and the two older children, although she doesn't provide a date when he assumed that responsibility.
It's clear on the evidence that the person who had the most active and responsible involvement with the subject children Z. and I. immediately prior to the intervention was their father, Mr. S. The fact that the mother had an order for custody of the children does not change that fact. The focus of the inquiry is the nature of the relationship at the relevant time.
It's not quite as clear-cut with respect to J. because it would appear that J. went back and forth between his mother and father in at least September 2015. It's only as of October 13th, 2015, that the evidence is clear that Mr. D. would have been caring for the child as a result of mother's arrest.
The law does provide that more than one person may have charge of a child immediately prior to intervention. There was no custody order in relation to J. In fact, the parents seem to have established a de facto joint custodial situation, at least up until about October 2015. It's true that J. was back and forth between the mother and father in September. It would appear, however, that the timeframes he could have been with the mother in that month and later in October would have been relatively short, as mother was going in and out of custody.
In her affidavit sworn April 15th, 2016, the mother deposes that she's not consumed alcohol "to excess" since January 2016. The obvious inference from this is that the mother was consuming alcohol throughout the fall of 2015 and over the relevant period of time. The mother has a long-standing and serious problem with alcohol.
It stands to reason, then, if the mother was consuming alcohol in September and October 2015, she was not up to the task of providing active and responsible caregiving to J. in those months. This is also on the heels of her abandonment of that child to family members to go on a bender in August.
I find that, as a result of her incapacity due to alcohol abuse and criminal involvement, the mother could not have been "actively caring" for J. immediately prior to the intervention. I therefore conclude on a balance of probabilities it's more likely than not that Mr. D. had charge of the child J. in the relevant timeframe.
Court's Findings
Accordingly, for oral reasons given:
The court finds that the person having charge of the children Z.M.J., born […], 2007, and I.S-J., born […], 2009, immediately prior to the intervention was Mr. S.
The court finds that the person having charge of the child J.L.J-D., born […], 2011, immediately prior to the intervention was S.D.
Further Observations
So this brings us to some other issues. First, the Society materials indicate that the Society is focused on working to re-integrate the children to the care of the mother. This seems to me to be premised on an implicit contention that mother had charge of the children immediately prior to the intervention. The Society seems to be utilizing its discretion with respect to access to further the object of reintegration to mother.
Submissions and Adjournment
...SUBMISSIONS BY COUNSEL
...WHEREUPON THESE PROCEEDINGS WERE ADJOURNED
Certificate of Transcript
FORM 2
Certificate of Transcript
Evidence Act, Subsection 5(2)
I, we Christine Cardwell certify that this document is a true and accurate transcript of the recording of CAS v. J. and S. and D. in the Ontario Court of Justice, held at 44 Queen St., Brantford, Ontario, taken from Recording(s) No. 0211‑5‑20160602‑091714‑6‑BAKERKAT, which has been certified in Form 1.
Transcript Information:
- Ordered: June 2, 2016
- Completed: June 8, 2016
- Ordering Party Notified: June 8, 2016
Transcriber: Christine Cardwell ACT: 5541917271 Phone: 1-855-443-2748 Email: ccardwelltranscripts@vptranscription.com
This certificate does not apply to the Reasons for Judgment which were judicially edited.