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.
(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.
(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.
ONTARIO COURT OF JUSTICE
CITATION: Catholic Children’s Aid Society of Toronto v. R.A., 2016 ONCJ 880
DATE: 2016 12 07
COURT FILE No.: Toronto CFO 11 10947-01 A4
BETWEEN:
CATHOLIC CHILDREN’S AID SOCIETY OF TORONTO,
Applicant,
— AND —
R.A., M.L., C.B., S.S., and T.S.M-V
Respondents
Before Justice Brian Weagant
Heard on November 25, 2016
Reasons for Judgment released on December 7, 2016
Mr. Chris Andrikakis ............................................................ counsel for the applicant society
Ms. Jessica Gagne ................................................................ counsel for the respondent R.A.
Ms. Lisa Hayes ...................................................................... counsel for the respondent, M.L.
Mr. Hossein Niroomand ........................................... counsel for the respondents C.B. & S.S.
Ms. Cheryl B. Mounsey .................................................. counsel for the respondents T.S.M-V
WEAGANT, B. J.:
[1] This is a ruling on the temporary care and custody of K.B., born […], 2014. The child was apprehended from the care of C.B. and S.S. (the caregivers) on June 7, 2016. The child had been in their care since birth.
[2] The child’s mother is R.A., born January, 1987. The child’s father is M.L., currently 43 years of age. The child has a brother, F., who was placed with maternal grandmother, T.M., by a s. 57.1 Order in August of 2013.
[3] The father, the former caregivers and maternal grandmother all seek temporary care and custody of the child. Mother R.A. supports a return of the child to the caregivers. The Society supports the child being placed in father’s temporary care and custody, but on a graduated basis as set out in a transition plan filed with the court.
[4] For what I say below, I find that it is in the child’s best interest to be placed with his biological father, there being no person having ‘charge’ within the meaning of the legislation immediately prior to intervention. Alternatively, the biological mother and father both had ‘charge’ of the child, and unless displaced by legal means, both retained the right to custody and either one could exercise the rights and responsibilities of a parent, within the meaning of section 20 of the Child and Family Services Act.
[5] If I err on this point, I find that on credible and trustworthy evidence, there are reasonable grounds to believe that there is a real possibility that, if the child were returned to the caregivers, it is more probable than not he or she will suffer harm. Because of the nature of the harm, I find there are no conditions that could be imposed to adequately protect the child (I take this test from CAS of Ottawa Carlton v. T, 2000 21157 (ON SC), per Blishen, J.).
[6] The facts of this case are highly unusual. K.B.’s caregivers since birth have no biological relationship to K.B.. K.B. was placed with them at birth by mother, with questionable notice to the biological father.
[7] Mother is the adopted daughter of maternal grandmother and was raised by her. Mother lives with the grandmother now and then. Maternal grandmother is a registered nurse with 40 years of experience. Mother suffers from profound hearing loss. She also suffers from a rare syndrome which affects the muscular and bone development in various parts of the body. She further suffers from chronic adaptability impairments, resulting in her inability to function independently and requiring substantial support to get along in the community.
[8] Mother developed a friendship with a daughter of the former caregivers, who introduced mother to her family. They took her in during her pregnancy and took mother and K.B. home two days after birth. K.B. is hearing impaired.
[9] The last name of caregiver C.B. appears on the Statement of Live Birth as K.B.’s last name. The father, M.L., is not mentioned on the Statement.
[10] Shortly after becoming stable with the child in the home of the caregivers, mother moved out to live with her boyfriend. Over the course of the next two years, mother moved in and out of the residence of the former caregivers and also the home of her mother. It seems from the materials that mother was content that the caregivers continue their care until November of 2015, at which point she expressed the view that she wanted to care for K.B.. Further, she wanted K.B. to establish a relationship with his biological brother. She now wanted to raise her own child. In order to further that, mother moved in with the caregivers and continued to express a desire to raise her child.
[11] Concerns were brought to the Society by mother’s adult protection worker. Mother had signed a notarized letter giving the caregivers custody of the child, when it was the protection worker’s view that mother was not competent to seek the legal assistance to achieve this on her own. Concerns were also raised about the money that was changing hands – mother was giving the caregivers money, ostensibly for rent, when she was not residing with them, or so it appeared to mother’s protective worker.
[12] These concerns prompted further investigation by the Society. Mother expressed that she wanted to raise her own child but was ineffective against the caregivers. She told the Society that the “custody” letter was drafted by them and according to the worker, she “believed a lawyer was involved.” Mother expressed the view that she was preyed upon and that at times was motivated by fear of the caregivers. At a family centered meeting in May of 2016, mother disclosed that she had been sexual assaulted by S.S., one of K.B.’s caregivers. The Society decided to apprehend in June of 2016.
[13] At the time this motion was argued, mother has recanted her allegation of sexual assault against caregiver S.S. and has made (I am informed) a fresh allegation of sexual assault against father M.L. Ironically, mother made the allegation against caregiver S.S. at a time she was not supporting his plan. She supports it today. Mother is not supporting the plan of father M.L. today.
[14] At the time of apprehension, mother expressed the desire to have K.B. back in the care of caregivers C.B. and S.S.. By September, she expressed the desire to have K.B. reside with her and her mother and K.B.’s brother. In October, she reversed her position again.
[15] M.L. is K.B.’s biological father. He is hearing impaired. He came to Canada from Jamaica when he was 19 years old and spent the next 7 years learning sign language and improving his educational skills. He met mother through the Bob Rumball Centre for the Deaf. Father claims mother broke up with him after the birth of the child as she had met someone else.
[16] Father was called to the hospital at the time of the birth of K.B.. He stayed the night. According to him, he understood the plan would be that mother and the child would go to the home of the former caregivers and that the child would bear father M.L.’s last name.
[17] Father began to have access immediately. Sometimes mother would be at the caregivers’ home, sometimes not. As things progressed, he was told that he had to call first before he could visit, and father claims he was not allowed to be alone with the child. Further, father was informed by caregiver C.B. that he could develop a status of ‘friend’ to the child, because the real father now was S.S. Upset by this, father had his sister phone the caregivers. Initially C.B. said the sister had reached a wrong number. After father’s sister threatened court action, things loosened up.
[18] Aside from this, father did not appear to have any complaints about the instrumental care being provided for his son. He gave monetary support at times. If I am reading the facts correctly, he gave the caregivers written permission to travel out of Canada with the child. Interestingly, the child travelled on a passport issued in his birth certificate last name, which means the caregivers applied for the document as custodial or biological parents of K.B..
[19] To me, it appears from the evidence that the caregivers did have a plan to consolidate their position as presumptive parent, by keeping father, arguably a vulnerable person himself due to his hearing disability, out of the narrative in any meaningful way. The following fact demonstrates this completely. The Society did a Kinship Homestudy on the caregivers. It was a positive report. In the section entitled, “Access Arrangements” only mother is mentioned with the caregivers assuring the assessor they support ongoing access with her. Astoundingly, father’s ongoing presence in the child’s life was never mentioned to the assessor. This is no mere oversight. In my view, it is a fraud on the Society assessor.
[20] Father was not informed by mother about CAS involvement. He was told by the caregivers after the apprehension. However, they did not tell the Society how he could be found. The evidence of this is demonstrated by the originating documents in this case: the protection application shows him as being a party but with “address unknown”. It was father who contacted the Society. It was after he saw the court documents that he learned about K.B.’s last name, the arrangements mother had with the caregivers and about the allegations mother had made against caregiver S.S..
[21] Father started to plan for the child himself.
The Law
[22] The care and custody of a child during the period of adjournment is governed by section 51 of the CFSA.
- (1) The court shall not adjourn a hearing for more than thirty days,
(a) unless all the parties present and the person who will be caring for the child during the adjournment consent; or
(b) if the court is aware that a party who is not present at the hearing objects to the longer adjournment. R.S.O. 1990, c. C.11, s. 51 (1).
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. R.S.O. 1990, c. C.11, s. 51 (2); 2006, c. 19, Sched. D, s. 2 (9); 2006, c. 5, s. 8 (1, 2).
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). 1999, c. 2, s. 13.
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. 2006, c. 5, s. 8 (3).
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. 2006, c. 5, s. 8 (3).
Application of s. 62
(4) Where the court makes an order under clause (2) (d), section 62 (parental consents) applies with necessary modifications. R.S.O. 1990, c. C.11, s. 51 (4).
Access
(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. R.S.O. 1990, c. C.11, s. 51 (5).
Power to vary
(6) The court may at any time vary or terminate an order made under subsection (2). R.S.O. 1990, c. C.11, s. 51 (6).
Evidence on adjournments
(7) For the purpose of this section, the court may admit and act on evidence that the court considers credible and trustworthy in the circumstances. R.S.O. 1990, c. C.11, s. 51 (7).
[23] A preliminary issue, and one on which the case for the former caregivers may stand or fall, is whether or not the caregivers had “charge” of the child immediately before intervention. If they did in law, then I must return the child to them on a temporary basis, unless the Society satisfies me 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 conditions of supervision.
[24] “Charge” is not defined in the legislation. The Court must make a determination if anyone had charge within the meaning of the given the facts of the particular case.
[25] Various cases were put to me, none completely on point. Justice Blishen, in CAS of Ottawa v. H.C., 2003 38754 (ON SC) is of the opinion that “charge” is linked to “custody and care”. Thus, the fact that one person may have a court order saying that a child reside with her is not determinative of the issue. However, the fact that a child is with a particular person immediately before the Society brings the matter before the court is not determinative either. Justice Kukurin in CAS of Algoma v. Teena G., 2002 52569 (Ont. C.J.), Sault Ste. Marie Registry No. 4/2002, helpfully adds that “charge” has a connotation of authority and responsibility. It suggests some established relationship and not something transient or temporary.
[26] The case that is most helpful in making a determination on the current facts, in my view, is CAST v. S.A. and M.R., 2008 ONCJ 348 (Ont. C.J.), a decision of my colleague Justice Spence. Justice Spence had a fact situation which involved a mother who “went underground” and kept the child away from the father. At the time of apprehension, the mother would not divulge the name or whereabouts of the father. She claimed that her actions were all a reflection of the abuse she suffered at the father’s hands. Justice Spence found on the evidence that the mother’s secreting the child was a deliberate attempt to sever the contact between the father and the child. Justice Spence considered the fact that the Children’s Law Reform Act, R.S.O. 1990 gave both parents the right to exercise custody or parental authority over the child in the absence of a court order or separation agreement to the contrary. He found that both parents retained “charge” over the child at the time of apprehension and then went on to assess which parent was currently advancing the more appropriate plan, having regard to the requirements of the protection legislation.
[27] In that case, it was clear that the mother was acting as if she had custody, authority and responsibility and had for at least seven months. However, this status quo was established by the mother engaging in a self-help tactic. Justice Spence was of the view that a parent cannot acquire the necessary authority and responsibility to the exclusion of the other parent, by extra-legal or unilateral means. Justice Spence resisted the argument that from the child’s point of view, the mother who cared for him for seven months had charge. He reasoned that to give effect to such an argument would be against public policy: it would encourage parents to engage in self-help tactics instead of relying on the proper use of the legal system.
[28] Until Justice Spence’s case, the analysis of “charge” was largely confined to the court considering the articulable characteristics of the circumstances of the parenting provided to the child immediately before apprehension. With Justice Spence’s decision, a new layer of analysis has been added which, in addition to a consideration of dictionary definitions, compels the court to recognize the legal nature of “charge” within the context of the legislation as a whole.
[29] In my opinion, the legal nature of a caregiver’s relationship to a child must inform the analysis. The following example comes to mind. Suppose that the child of a single, custodial, working parent is primarily cared for by a live-in nanny, who has been on the job for 5 years and has established a loving relationship with the child. If the primary parent meets with tragedy on the way home from work one day, I doubt very much anyone would see the nanny as the person having charge of the child within the meaning of section 51, because of the commercial nature of the nanny’s relationship with the child. The primary parent never relinquished “charge”.
[30] As I apply this to the situation before me, I find that the former caregivers, at the very least played fast and loose with the law, and at worst, fraudulently established a status quo by taking advantage of vulnerable parents.
[31] This leads me to conclude that no one had charge of the child immediately before apprehension. In the alternative, mother and father, jointly, retained the “charge” established by their entitlement to custody under the Children’s Law Reform Act. It must be noted that mother tried, unsuccessfully, to reestablish care and authority at various points in the narrative.
[32] As between the biological parents, father advances the most appropriate plan for care on a temporary basis.
[33] If I am wrong about whether the former caregivers had “charge” within the legal meaning of section 51, then I conclude that their actions in this case – presenting themselves to the world as the legitimate parents of the child (as evidenced by allowing him to take their last name at birth, applying for a passport etc.), coupled with their discounting of the importance of father and his legal rights – places K.B. at risk that he is likely to suffer emotional harm by having his relationship with his biological parents immorally (and perhaps illegally) severed. The former caregiver’s inability to legally protect K.B.’s basic biological relationships places them beyond the control of conditions, as contemplated in the legislation. They cannot be trusted not to continue to substitute their own emotional relationship with K.B. for that of others that are vitally important to K.B.. It is his right to have a stable relationship within his biological family. This is an articulated principle in section 1 of the CFSA.
[34] Father’s temporary plan, as I understand it, would see maternal grandmother sharing parenting, at least on weekends. This would allow K.B. to get to know his brother. As between father’s and maternal grandmother’s respective temporary plans, both viable, I choose the one that recognizes K.B.’s parent. I believe this promotes the best interests of K.B. in accordance with section 1 of the CFSA.
[35] The Society has filed a reintegration plan that they would like to implement should I place K.B. with his father on a temporary basis. The Society is now free to so implement.
[36] Access to the B.’s and R.A. will be at the discretion of the Society, as to level of supervision, frequency and duration.
Released: December 7, 2016
Signed: Justice B. Weagant```