WARNING

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

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

45.— (8) 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.

85.— (3) A person who contravenes subsection 45(8) (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

In the Matter of the Child and Family Services Act, R.S.O. 1990, c. C.11

Between:

Children's Aid Society of Algoma J. Mealey

— And —

J.M.-G. K. Whitfield J.G. S. McCooeye B.-L.S. M. Carter D.W.1 Self-represented J.D. L. Marshall

Heard: November 23, 2016

Before: Justice John Kukurin

Reasons for Decision

Introduction

[1] These are Reasons for my decision on temporary care and custody motions of the society (at Tab 2, Vol 1) and of the father (at Tab 17, Vol 1) pursuant to s.51(2) of the Child and Family Services Act (the "CFSA") in this proceeding.

[2] The proceeding involves five children. Although the society has only one child protection application, the reality is that there are several discrete applications involved. The society has named all "statutory" parents as parties in this one application. In fact, some of the parties named are improperly so as they have an interest only in the application involving the child in which they have an interest. The society has utilized a shotgun approach to the grounds it relies on for a finding that the children are all in need of protection. The facts clearly do not make the grounds applicable to every Respondent or to every child. The result is that there is one continuing record in which any party can file anything.

[3] The proper applications and parties are:

Child	Parties
R.G. (2)	J.M.-G. (Bio-M) / J.G. (bio-F)
A.G. (9)	B.-L.S. (Bio-M) / J.G. (bio-F) / J.M.-G. (statutory parent)
D.D. (11)	J.M.-G. (Bio-M) / J.D. (Bio-F) / J.G. (statutory parent)
V.G. (11)	B.-L.S. (Bio-M) / J.G. (Bio-F) / J.M.-G. (statutory parent)
Damien (12)	J.M.-G. (Bio-M) / D.W.1 (Bio-F) / J.G. (statutory parent)

[4] Situations like these result when there is a blending of families. Even more so when there is a succession of relationships, usually by a mother, each resulting in the birth of a child.

[5] In the case of A.G. and V.G., there is an existing custody and access order that grants sole custody to their father (J.G.) and giving their mother (B.-L.S.) access which is specified in terms of time, frequency and duration.

Legal Framework

[6] The temporary care and custody of a child in a child protection proceeding is governed by s.51(2) CFSA:

S.51 (2) Where a hearing is adjourned, the court shall make a temporary order for care and custody providing that the child,

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

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

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

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

(i) a place of secure custody as defined in Part IV (Youth Justice), or

(ii) a place of open temporary detention as defined in that Part that has not been designated as a place of safety.

[7] There are four options available to the court. The first two are non-removal orders; the latter two are removal orders. The "removal" is from the person (or persons) who had charge of the child immediately before the society's intervention, which occurred on May 30, 2016. In the case of all five children, the persons having charge were J.M.-G. and J.G.

[8] The society obtained without prejudice orders after it apprehended these children (without a warrant). Ultimately, they ended up in the temporary care and custody as follows:

• S.51(2)(c) R.G. – with maternal grandparents (The V.)
• S.51(2)(d) A.G. and V.G. – with the society, which placed them in the foster home of their maternal grandparents (The S.)
• S.51(2)(c) D.D. – with paternal grandparents (The D.)
• S.51(2)(c) Damien – with his father (The W.)

[9] The test for temporary care and custody is found in s.51(3) CFSA:

S.51(3) The court shall not make an order under clause (2)(c) or (d) unless the court is satisfied

that there are reasonable grounds to believe that there is a risk that the child is likely to suffer harm, and

that the child cannot be protected adequately by an order under clause (2)(a) or (b).

[10] The contest at this point in this proceeding is where these children are to be placed on a temporary basis pending the final resolution of this case.

R.G. (Age 2)

[11] The society wishes to return R.G. to his parents (J.G. and J.M.-G.) subject to a supervision order and subject to a number of conditions (that the society was kind enough to produce for the court). This would, of course, constitute a "non-removal" order under s.51(2)(b) CFSA. The mother and father do not contest that the society has met the first part of the two part test. However, they maintain that it has not made out the second part of this test. In other words, they argue that a supervision order with adequate terms and conditions would adequately protect R.G. if he was returned to their care and custody on a temporary basis. The society is rather mute on this test. It submits that it is asking the court to make this order on its consent.

[12] R.G., age 2, has no OCL counsel to represent him in this case as do his siblings. R.G. is currently in the temporary care and custody of his maternal grandparents (the V.). The society has completed a kin assessment of them and it is not a favourable one. So the society wants the child out of their home. The only alternatives appear to be a foster home elsewhere or return to the parents. The society has chosen the latter.

[13] The problem is that the same society is asking for a "removal" order with respect to the four other children. This necessarily entails a judicial determination that the society has met both parts of the two part test in s.51(3) CFSA.

[14] This is inconsistent with its position with respect to R.G. where, implicit in its position is the acknowledgement that it has not met both parts of this test.

Basis for Reasonable Grounds

[15] The basis for the society's reasonable grounds to believe that there exists a risk that the children are likely to suffer harm includes the following:

• J.G. was physically abusive to the children on numerous occasions
• J.M.-G. did not interfere with J.G.'s abusive discipline
• J.G. and J.M.-G. (denied) smoking marijuana regularly within the home
• J.G. has threatened the children to the point that they fear him
• The state of the home at time of apprehension was deplorable and unsafe
• The children's hygiene was significantly deficient
• The supervision of the children was inadequate
• J.G. used demeaning and disparaging language and yelled at the children
• There was insufficient food and the children's lunches were deficient
• J.G. was mean to the family dog

Credibility of Children's Evidence

[16] Most, if not all of these allegations have their origins in the children who have recounted them to others (e.g. child protection workers, police officers) and are clearly hearsay in this court. However, this court can admit and act on hearsay at this stage of a child protection case [See S.51(7) CFSA] if it is credible and trustworthy in the circumstances.

[17] I believe the children's evidence because:

(a) The four older children corroborate each other and I see no sign of collusion

(b) The children were interviewed privately and by persons trained in such investigations

(c) The children's accounts have not waffled nor have they recanted over time

(d) Drake tried to run away from home ostensibly because he was so fed up with the situation in the home

(e) Damien won't even speak with his mother (J.M.-G.) with whom he is very angry

[18] The father J.G. has responded to the evidence of the society. While he answers some of the allegations, I prefer the evidence of the children, albeit hearsay, as to what went on within the home. The father's response minimises his abusive behaviour and stands in stark contrast to that of the children.

Analysis and Decision on R.G.

[19] The question then is whether I can make a s.51(2)(b) non removal order for R.G. with the evidence that I have. The evidence of the society is virtually the same for all of the children. Or is it?

[20] The only difference with respect to R.G. is that J.G. did not ever strike this 2 year old child by way of disciplining him. However, he did yell at and threaten and strike the siblings in R.G.'s presence. R.G. would have been around the home when the marijuana smoking was taking place. He would have been present when the father was yelling and threatening the other children.

[21] There are some signs that the father J.G. has seen (some) the light with respect to his past behaviours and may be realizing that raising children with physical discipline is not the best way to deal with them. He and J.M.-G. have, to their credit, taken a Triple P parenting course (which appears to be three weekly sessions). In addition, they have completed a CADAP drug and alcohol assessment which I understand is based on self-report. I don't have a copy of these assessments but the evidence about them is that the father has some problems he has to address. I don't know the results of the mother. She has consistently denied marijuana consumption, which the father J.G. corroborates. The most important aspect of the father's behaviour, however, is still not addressed. This is anger management counselling, and perhaps a psychiatric or some mental health evaluation to determine the source of his anger.

[22] The court does not, and should not, rubber stamp consents and give them the authority of a court order if the basis for making the order is faulty. R.G. is age 2. He is the most vulnerable of these five children. I do not believe I can craft an order that will adequately protect R.G. if he is returned to the care of his parents at this time. To suggest that I simply insert conditions that prohibit corporal punishment and marijuana smoking is too facile a suggestion. I would have little confidence that these would be complied with.

[23] So where does that leave little R.G.? In the temporary care and custody of his maternal grandparents, the V., where he has been for some time and without any adverse incidents reported. He can remain there for the time being, despite an unfavourable kin assessment. If the society is uncomfortable with this placement, it can bring a motion to vary it based on the kin assessment it does have (not yet filed with this court). The V. are grandparents of this child and also have a relationship with him. They are also convenient from an access point of view. Should the society seek to apprehend R.G., I expect it to get a warrant first and to serve the V. who may wish to defend any motion to strip them of their temporary care and custody.

[24] I am aware of the current state of parental access of R.G., which I gather includes overnight visits at the parental home. If the society is comfortable with this, it is within the parameters of parental access contained in the present order.

Other Children – Removal Orders

[25] For the other children only a removal order is appropriate.

D.W.2

[26] For D.W.2, the evidence is that the temporary care and custody placement with his bio father Derrick and his family has progressed fairly well and he is comfortable there. This continued placement is in accordance with his OCL counsel's representations. It is unfortunate that he takes such a rigid position on any contact with his mother (especially) but also J.G., his stepfather. Hopefully, some counselling may soften his position and allow some reconciliation with his parents. He should also have sibling access with the society to be tasked with ensuring this does take place in circumstances where he and they can enjoy their visits.

D.D.

[27] For D.D., his temporary care and custody placement should remain as is at present, with his paternal grandparents, the D. They have a history of visitations and there seems to be a solid grandparental relationship already. D.D. is comfortable with them. They are attending to addressing inappropriate sexualized behaviour which he has engaged in. D.D. wishes to have unsupervised access to his mother, stepfather J.G. and his siblings, and to have this in their home. I gather that transportation is not an issue and is being shared. This seems to be reasonable to continue and may include overnight visits in the discretion of the society.

V.G. and A.G.

[28] This leaves V.G. and A.G., who are in the temporary care and custody of the society and placed in a foster home with their maternal grandparents, the S. Both the society, and the S., and OCL counsel for these children, advocate for placement with their mother, B.-L.S. Their father, J.G., opposes this change as does J.M.-G., their stepmother.

[29] This is akin to a kin placement fight. The senior S. are an approved foster home placement and presumably have been vetted by the society long ago. The mother, B.-L.S. has had no kin assessment completed. Why not? Is it because she is the bio mother of these children? The only evidence as to her ability to parent these children is her own and that of her parents. The society has little, if any. Opposed to that is the evidence of the father and stepmother J.M.-G., and a custody and access order that is dated October 2013 and which was made on consent.

[30] I am not keen on making this kin placement. The evidence is clear to me that the father J.G. and the mother B.-L.S. are at odds. They do not like one another and are still showing some bitterness over their custody and access fight a few years back. She would like him to be charged with child abuse. He has little faith in her parenting abilities and claims she is still into drug use. However, in considering the evidence, I note that:

• V.G. and A.G. have consistently wanted this placement
• There is little by way of hard evidence that it is inappropriate
• OCL counsel endorses it
• The mother B.-L.S. has been exercising access pursuant to the CLRA order without any adverse incident
• The change would stop the s.70 CFSA clock from ticking
• B.-L.S. is the bio mother of these children

These are all s.37(3) CFSA considerations favouring this change.

[31] As for access, both V.G. and A.G. wish to have unsupervised access with their father J.G. and with their step mother J.M.-G., and to have this in their home. I understand that this already takes place. This should continue as it will give these children the opportunity to interact with their siblings (except D.W.2). Hopefully it will enable them to repair their relationship with their father and with J.M.-G.

[32] The supervision order conditions with respect to V.G. and A.G. while in the temporary care and custody of their mother appear to be appropriate. The provisions for access to their father and stepmother should be looked at a little more closely to avoid any transportation problems.

Released: November 23, 2016

Signed: "Justice John Kukurin"