WARNING

The court hearing this matter directs that the following notice be attached to the file:

This is a case under Part III of the Child and Family Services Act and is subject to one or more of subsections 48(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:

45.— (7) Order excluding media representatives or prohibiting publication.

The court may make an order,

(c) prohibiting the publication of a report of the hearing or a specified part of the hearing,

where the court is of the opinion that publication of the report would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.

45.— (8) Prohibition: identifying child.

No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.

45.— (9) Idem: order re adult.

The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

85.— (3) Idem.

A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Court File and Parties

Court File No.: 258/16

Date: 2016-08-09

Ontario Court of Justice

Between:

Windsor-Essex Children's Aid Society

David Ziriada for the Applicant

Applicant

— And —

T.C. and Y.J.J.H.

Rayleen Cantin for the Respondent Y.J.J.H.

Respondents

Heard: August 2, 2016

TOBIN, J.

ENDORSEMENT ON MOTION

1. The Motion

[1] On this temporary care and custody hearing, the Society seeks an order that the child, B.H., born […], 2008, (the "child") be placed in the interim care of his mother, T.C., (the "mother") subject to the supervision by the Society. It also requests an order that any access between the Respondent father, Y.J.J.H., (the "father") and the child be fully supervised by the Society or a third party approved by it.

[2] The father opposes the Society's motion and seeks an order that the child be in his care in accordance with an order dated June 1, 2011 made in a Children's Law Reform Act ("CLRA") proceeding. This order provides that he has joint and shared custody of the child with the mother.

[3] The mother did not attend at the motion. She did file an affidavit supportive of the father's position.

2. Facts

[4] The father is a parent of two children: J.H., born […], 2000, and B.H., born […], 2008.

[5] The motion before me concerns the child, B.H. There is a separate proceeding concerning the child, J.H.

[6] In a CLRA proceeding between the mother and father concerning the child I granted a final order on June 1, 2011 that gave effect to minutes of settlement and which provided:

• (a) the father and the mother have joint custody of the child;
• (b) the child is to be in the father's care as follows:
  • (i) week 1: Tuesday, Wednesday and Friday to Monday A.M. and each alternate week thereafter;
  • (ii) week 2: Wednesday to Friday A.M. and each alternating week thereafter; and
• (c) the child is to be in the care of the mother at all other times.

The order also provided for a sharing of holidays and special occasions.

[7] The Society brought this child protection application issued May 26, 2016. The Society pleaded risk of harm on the basis of cl. 37(2)(d) of the Child and Family Services Act ("CFSA" or "Act") which provides as follows:

(2) A child is in need of protection where,

(d) there is a risk that the child is likely to be sexually molested or sexually exploited as described in clause (c);

[8] The disposition sought within the child protection application is that the child be placed in the care of the Respondent mother, subject to Society supervision for a period of 12 months. It also requests that the Respondent father's access to the child be supervised by it or a third party approved by it.

[9] The child was not apprehended.

[10] The Society's notice of motion for the temporary care and custody hearing was first returnable on June 9, 2016.

[11] The Society started the application and brought the temporary care and custody motion because of the following information it learned about the father.

[12] On July 14, 2015, the father was arrested and charged with three counts of committing an indecent act. The charges arose when the Ontario Provincial Police received complaints that on May 5, June 16, and July 14, 2015, the father was observed masturbating while driving on Highway 401.

[13] The father pleaded guilty to these three offences in March 2016. Counsel advised that the father has not yet been sentenced for these offences.

[14] On September 30, 2015, the father was arrested and charged with one count of committing an indecent act. Again he was observed masturbating while driving on Highway 401, this time on September 28, 2015.

[15] The Respondent also pleaded guilty to this offence.

[16] On January 1, 2016, the father was charged with sexual assault upon a co-worker. The allegations giving rise to this charge are that he put a drug in a co-worker's drink while they were at a bar. When she awoke the father was sodomizing her. The offence is alleged to have taken place on December 13, 2015.

[17] The father denies the allegations and is defending this charge. The father's evidence is that he has reviewed tapes from the restaurant which disclose he did not put anything into his co-worker's drink. It is his evidence that he is not responsible for his co-worker's level of intoxication on the evening in question.

[18] On January 13, 2016, the father was charged with stalking a woman at 3:00 a.m. The father denies this allegation.

[19] The Society considered the behaviour of the father in the context of prior involvement with him.

[20] Society records disclose that in February 2011 the father was involved in an incident of domestic violence with a woman he was dating. This person also provided information to the Society that she had been assaulted by the father two other times in the previous month.

[21] The father's mother was present for this February 2011 incident and gave evidence at the criminal proceeding arising from the incident. The father denies the assault. He was acquitted.

[22] Society records also disclose that in June 2006 while at the emergency department of Windsor Regional Hospital with his daughter, J.H., who was then six years of age, the father was found in a room across the hall from J.H.'s room engaging in sexual intercourse with the mother of a child who was in that room.

[23] The father denies the allegation of having sex in a hospital room.

[24] On this hearing the mother provided evidence that there has never been an incident where the father behaved inappropriately with the child so as to cause her concern about his parenting. She describes the father as a good father, actively involved with the child and that he is attached to the father.

[25] The child's paternal grandmother's evidence is that the father has been involved in the lives of both of his children and that he and they share a close and loving relationship.

[26] The father now resides at the paternal grandparents' home. The paternal grandparents are willing to monitor the father's access with the child. They are also willing to supervise overnight access, if necessary. Having said that, the paternal grandmother also deposed that she does not want to believe that her son is guilty of the offences to which he pleaded guilty.

3. Position of the Parties

[27] In the context of the Society's prior involvement with the father, his recent actions as alleged and outstanding criminal charges, its position is that the father's sexual urges are beyond his control and this puts the child at risk to such an extent that his access must be supervised.

[28] The father's position is that he has never acted in a sexually inappropriate manner while around the child. He denies that his sexual urges are out of his control or that his access with the child must be supervised.

[29] The Society argues that the determination of the father's contact with the child should be based upon s. 58 of the CFSA which provides that access ordered under Part III of the CFSA be based on a child's best interests. According to the Society, the father's contact with the child should be based solely on the child's best interests.

[30] The father argues that as he is a joint custodial parent, the Society's request to restrict his contact with the child should be made based upon ss. 51(5) which provides:

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

4. Legal Considerations

[31] With respect, I do not agree with the analysis proposed by either the Society or the father. Neither party made submissions on how the CFSA addresses a situation where the child protection case arose because of the actions of one joint and shared custodial parent. This is a case where the father had charge of the child at the time the Society intervened. The issue is not one of access based on best interests, rather it is one of risk of harm and adequate protection.

[32] The test to be applied on temporary care and custody hearings is set out in ss. 51(2), (3), (3.1) and (3.2) of the Act which provide as follows:

Custody during adjournment

(2) Where a hearing is adjourned, the court shall make a temporary order for care and custody providing that the child,

(a) remain in or be returned to the care and custody of the person who had charge of the child immediately before intervention under this Part;

(b) remain in or be returned to the care and custody of the person referred to in clause (a), subject to the society's supervision and on such reasonable terms and conditions as the court considers appropriate;

(c) be placed in the care and custody of a person other than the person referred to in clause (a), with the consent of that other person, subject to the society's supervision and on such reasonable terms and conditions as the court considers appropriate; or

(d) remain or be placed in the care and custody of the society, but not be placed in,

• (i) a place of secure custody as defined in Part IV (Youth Justice), or
• (ii) a place of open temporary detention as defined in that Part that has not been designated as a place of safety.

Criteria

(3) The court shall not make an order under clause (2)(c) or (d) unless the court is satisfied that there are reasonable grounds to believe that there is a risk that the child is likely to suffer harm and that the child cannot be protected adequately by an order under clause (2)(a) or (b).

Placement with relative, etc.

(3.1) Before making a temporary order for care and custody under clause (2)(d), the court shall consider whether it is in the child's best interests to make an order under clause (2)(c) to place the child in the care and custody of a person who is a relative of the child or a member of the child's extended family or community.

Terms and conditions in order

(3.2) A temporary order for care and custody of a child under clause (2)(b) or (c) may impose,

(a) reasonable terms and conditions relating to the child's care and supervision;

(b) reasonable terms and conditions on the child's parent, the person who will have care and custody of the child under the order, the child and any other person, other than a foster parent, who is putting forward a plan or who would participate in a plan for care and custody of or access to the child; and

(c) reasonable terms and conditions on the society that will supervise the placement, but shall not require the society to provide financial assistance or to purchase any goods or services.

Who had charge of the child?

[33] In this case, it is necessary to determine "who had charge of the child immediately before intervention under Part III" of the Act.

[34] The term "charge" is not defined in the Act. It has been held to connote "authority and responsibility" over a child that is established, and not transient or temporary: Children's Aid Society of Algoma v. G. (T.)

[35] The question who had "charge" of the child is not determined by which person had actual physical or de facto custody immediately before Society intervention: Children's Aid Society of Toronto v. A.(S.), 2008 ONCJ 348 at para 12.

[36] In Children's Aid Society of London and Middlesex v. D.(S.), Justice Harper held that to find a person had "charge" as the word is used in ss. 51(2) requires "…evidence that a person had an active relationship with the child that includes care and responsibility. It is something more than physical possession or limited incidents of care."

[37] A child can be in the charge of more than one person immediately before Society intervention: Children's Aid Society of London and Middlesex v. D.(S.) supra at para 32.

[38] If more than one person has charge of a child immediately before Society intervention, the court must consider or assess which of the parents is better able to care for the child having regard to the purpose and intent of the Act: Children's Aid Society of Toronto v. A.(S.) supra.

[39] In Children's Aid Society of London and Middlesex v. D.(S.), Justice Harper put the proposition this way; the court must consider the risk of harm of returning the child to either parent.

[40] In this case the father's request, supported by the mother, is for the child to remain in their joint and shared care. They want the existing arrangement to continue. In this situation the court is to make a separate assessment of the risk of harm each parent presents. The analysis required by s. 51 is to be undertaken twice, once for the mother and a second time for the father.

[41] I also take into account the primary purpose of the Act which is to promote the child's best interests, protection and wellbeing: CFSA ss. 1(1).

[42] In the context of this temporary care and custody hearing I must also take into account that:

• (a) the degree of intrusiveness of the Society intervention and any temporary order made by the court must be proportionate to the degree of risk: Catholic Children's Aid Society of Toronto v. O.J. 2012 ONCJ 269; and
• (b) any order made must result in the least disruptive placement consistent with adequate protection of the child: Child and Family Services Act ss. 1(1) and Children's Aid Society of Hamilton v. D.(B.) 2012 ONSC 2448.

5. Application of Legal Considerations

[43] In this case, both the mother and the father had charge of the child immediately before intervention under Part III of the Act based on the following:

1. Under the CLRA Order of June 1, 2011, the child is to be in the care of the father under a joint custody order 7 of every 14 days, along with a sharing of holidays and special events. The CLRA Order reflects a joint and shared parenting arrangement.

2. The mother and father have been sharing custody of and time with the child in accordance with the June 1, 2011 Order.

3. The father has been observed by the paternal grandmother and the mother as being involved in the child's life.

4. For a considerable period the father has had responsibility and authority over the child while in his care.

[44] The Society's request to restrict the father's contact with the child is, in statutory terms, a request under cl. 51(2)(c). It wants to remove the child from the father's care – to the extent he has had charge of the child – and place him in the mother's care.

[45] Before removing the child from the father's care, I must be satisfied that the Society has met both parts of the two-part test mandated by ss. 51(3): Children's Aid Society of Algoma v. A.-M.S., 2010 ONCJ 741 and Ottawa (Children's Aid Society) v. H.C. at paras 19 and 20.

[46] I find that there is no risk of harm in placing the child in the care of the mother. No one argued otherwise. No terms of supervision are required to protect the child while he is in her care. While this case is ongoing, placement of the child can be with the mother – to the extent she has charge of the child under the June 1, 2011 Order – without any terms or conditions: CFSA ss. 51(2)(a).

[47] At a temporary care and custody hearing, the onus is on the Society to establish, on credible and trustworthy evidence, that there are reasonable grounds to believe that there is a real possibility that if a child is returned to a Respondent, it is more probable than not that he or she will suffer harm. Further, the onus is on the Society to establish that the child cannot be adequately protected by terms or conditions of an interim supervision order. See: Children's Aid Society of Ottawa-Carleton v. T.. Simply stated, this is a two-part test that the Society has to meet.

[48] The issues remaining on this motion are:

• (a) whether there is risk of harm to the child if placed with the father on the schedule set out in the June 1, 2011 Order; and
• (b) can the child be adequately protected under terms of supervision?

Risk of Harm

[49] I am satisfied that on this record there are reasonable grounds to believe there is risk that the child is likely to suffer harm while in the care of the father.

[50] During the last year, the father was charged with a number of criminal offences arising from his sexual behaviour; indecent exposure while driving on Highway 401 as well as sexual assault and stalking.

[51] He pleaded guilty to the indecent exposure offences.

[52] The father has provided no explanation why he engaged in this admitted-to behaviour, and what, if anything, he is doing to address it.

[53] Even after being charged with three offences of indecent exposure, he did it again.

[54] There is some historical evidence that relates to the father's sexual behaviour that is of concern. His self-control was the issue.

[55] The father argues that the criminal acts admitted to and those denied do not show that the child is at risk of harm. He adds that he has continued to actively parent the child with the support of the mother. His behaviour and any lack of judgment do not involve the child.

[56] I am satisfied the Society has met its onus regarding risk in this case. In Children's Aid Society of Toronto v. M.(A.), Justice Katarynych addressed the issue of onus as follows:

16 On a plain read of subsection 51(3) of the Act, this particular adjudication is about the reasonableness of the society's belief about risk. That makes sense. More often than not, all that there is at this early stage in the case is belief. It is also about beliefs about risk that do not and cannot stand still if the society is faithful to its obligation to reassess its beliefs as further information becomes available in the investigation. Whether there are reasonable grounds to believe that the child is in need of protective services is an ever-evolving question; for a fuller discussion, see Children's Aid Society of Halifax v. D. (T.J.) (1999), 47 R.F.L. (4th) 293, [1999] N.S.J. No. 145, 1999 CarswellNS 141 (N.S. S.C.), per Justice R. James Williams at page 295 [R.F.L.]. The investigation is seldom completed at the time of the motion hearing. The society's evidentiary case reflects what the investigation has yielded to that point in time. The society's initial "call" on the nature and extent of the risk may change once the findings of the completed investigation are brought to bear on the society's assessment. What appears to be credible and trustworthy information at an early stage in the investigation may be found, on closer scrutiny, to be speculation, innuendo, conjecture or simply mean-spirited gossip. The society's belief about risk may be altered by the shift from the society's intake to ongoing family service. Depending on the comparative experience and expertise of the social work staff, the receiving social worker may assess the case differently.

17 What is really evaluated in this interim motion is the degree to which the society has kept pace with its investigation, informed its beliefs by the ever-expanding information available to it and measured its belief against the criteria established by subsection 51(3) of the Act.

[57] The behaviour admitted to, together with the other outstanding criminal allegations, suggest the father may not have complete control of his behaviour such that it is reasonable to believe that there is risk of harm to the child. His sexually charged behaviour is disturbing and unexplained. There is risk of harm to the child in that the child may be exposed to this behaviour directly or indirectly. The Society is right to be concerned at this stage of the proceeding about the father's ability to maintain control while he has care of the child.

Adequate Protection

[58] For the reasons that follow, I am not satisfied the Society has met its onus on the second part of the test. This means the only orders I can make are under ss. 51(2)(a) and (b). There is no jurisdiction under the Act to make an access order as requested by the Society because ss. 51(2)(c) and (d) are not engaged nor is s. 58.

[59] I am satisfied that allowing the child to be in the care of the father in the manner set out by the June 1, 2011 Order, but subject to terms of supervision, will allow the child to be adequately protected for the reasons that follow:

1. The indecent exposure offences occurred a number of months ago. No further charges of this nature have been laid since September 2015. The last criminal charge was laid earlier this year.

2. The father is residing in the home of his mother. She is willing to monitor the father's care of the child and will supervise all overnight care. She is a proper person to supervise the father's care of the child.

3. The mother deposes, and I accept her evidence, that she is not aware of any incident where the father behaved inappropriately with the child. She describes him as a good and actively involved father.

4. With monitoring during non-overnight care and supervision during overnight care, the risks to the child can be adequately addressed.

[60] Supervision of the father's care of the child will allow Society intervention that is proportionate to the risk involved.

[61] It will also allow the child to continue his relationship with the father as has been the case for some time, but with protective supervision.

6. Order

[62] For these reasons:

1. An Order will issue pursuant to cl. 51(2)(b) of the CFSA as follows:

The child shall be placed in the temporary care and custody of the father:

• (a) week 1: Tuesday, Wednesday and Friday to Monday A.M. and each alternate week thereafter; and
• (b) week 2: Wednesday to Friday A.M. and each alternating week thereafter;

subject to the following terms and conditions:

• (i) the father shall reside in the home of his mother, D.H.;
• (ii) the father shall ensure the Society is provided with his up-to-date telephone numbers where he can be reached at all times, and shall notify the Society at least seven (7) days before any change of his telephone numbers;
• (iii) each Friday the father shall provide to the Society his anticipated plans for or with the child during the next following week. If there are any changes to his plans, he is to advise the Society. He is to respond to Society telephone calls so that monitoring can be arranged and effected. The Society is to provide the father with a telephone number he may call regarding any proposed changes to his plans with the child;
• (iv) the father shall allow the Society scheduled and unscheduled access to his residence and the child while he is in his care;
• (v) the Society or third parties approved by it, including D.H., shall monitor the father's care of the child;
• (vi) the father will not consume alcohol twelve (12) hours before or during periods he has care of the child;
• (vii) the father will not expose the child to any sexual activity;
• (viii) the father will not discuss his past and ongoing criminal proceedings with or in front of the child;
• (ix) all overnight care of the child by the father is to be supervised by the paternal grandmother, D.H.;
• (x) the father's care of the child shall terminate, pending further order of the court, if there is a breach of any term of this order;
• (xi) the Society is to be notified by the father or the paternal grandmother if there has been a breach of any term of this order; and
• (xii) D.H. will respond to all inquiries made of her by the Society about any aspect of the time the child is in the father's care that she is supervising or monitoring.

2. An Order will issue pursuant to cl. 51(2)(a) of the CFSA as follows:

The child shall be placed in the temporary care and custody of the mother at all other times.

"Original signed and released"

Justice B. Tobin

Released: August 9, 2016