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

Date: June 29, 2017

File No.: C91936/16

Ontario Court of Justice 47 Sheppard Avenue East Toronto, Ontario M2N 5N1

Parties and Representation

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

And In the Matter of: Sy. born […] 2002

Between:

• Jewish Family and Child Services of Greater Toronto (Applicant)
• Ki. Sl. (mother) and Ig. Sl. (father) (Respondents)

Before: Justice Robert J. Spence

Heard on: 28 June 2017

Reasons released on: 29 June 2017

Counsel:

• Ms. Haley Gaber-Katz for the applicant society
• Ms. Natalia Denchik for the respondent mother
• The respondent father appearing in person
• Ms. Lynn Bonhomme, agent for Ms. Nancy Thompson for the Office of the Children's Lawyer, legal representative of the child

Introduction

[1] Sy. is a 15 year-old girl who was apprehended by the applicant society ("society") from her mother's care on December 1, 2016. The apprehension followed an investigation and involvement by the society for a period of several months. The investigation was commenced following a report to the society by a clinician from the Office of the Children's Lawyer ("OCL") which had been assigned to the domestic case between the parents. That case was ongoing at the time of the OCL report to the society.

[2] The society seeks a finding in need of protection pursuant to Sections 37(2)(a)(ii), 37(2)(b)(ii), 37(2)(f) and 37(2)(g) of the Child and Family Services Act ("Act"). The father and the OCL both support the society's request for the finding in need of protection pursuant to the above-mentioned sections of the Act.

[3] With the consent of the parties, the court conducted this hearing using its powers pursuant to Rule 1 of the Family Law Rules, in order to focus on the discreet issue of whether there ought to be a finding that the child is in need of protection. The parties agreed that the court would hear evidence by a combination of affidavits and cross-examination.

[4] The society filed its evidence in chief by affidavit; the mother filed her evidence in chief by affidavit and the society filed a reply affidavit. The society's affiant was cross-examined by mother's counsel. The mother was cross-examined by society counsel and counsel from the OCL, on behalf of the child.

The Parties' Respective Positions

[5] The society's evidence can best be summarized as follows:

1. The child was living in the mother's primary care and custody prior to the apprehension;

2. The mother has a lengthy history of mental health problems;

3. The mother's relationship with Sy. has been suffused with conflict, including physical abuse as well as uncontrollable outbursts of anger by the mother, all of which have impacted negatively on Sy.;

4. This conflict both pre-dated the apprehension on December 1, 2016, and has continued subsequent to the apprehension as well – at least in respect of the emotional abuse;

5. The mother's actions have caused Sy. to experience emotional harm; and mother's behavior continues to expose Sy. to the risk of emotional harm; and

6. The mother has engaged with Sy. in a physically harmful way and, further, Sy. would be at risk of ongoing physical harm if she were to be in mother's fulltime care and custody.

[6] The mother's evidence can best be summarized as follows:

1. There is no evidence that Sy. was ever left with insufficient food, shelter or clothing, such that her basic needs were not being met;

2. When Sy. was apprehended by the society, she did not have any bruises or other marks on her body which, according to mother, suggests that she was not physically harming Sy.; and

3. On at least one occasion, Sy. stated that she did not feel unsafe in mother's presence.

Assessment of the Evidence

[7] The society's evidence was detailed and included a number of disclosures by the youth herself.[1]

[8] The mother's affidavit was very sparse and mostly consisted of bald denials. It lacked any real discussion of the many issues raised in the society's evidence in chief. Some of that evidence is as follows.

[9] On October 20, 2016, Sy. sent an email to the child protection worker who had been assigned to the case, stating:

My mom got super mad at me today and I ended up having to lock myself in the bathroom for a bit. Please do not tell my mom I sent this because I don't feel like she will take it too well if she found out I told you.

[10] On October 31, 2016, the worker met Sy. at her school. Sy. reported to the worker that when her mother gets angry she "yells and is full of rage". The youth will often lock herself in the bathroom, stating this will happen once or twice a week. She said she doesn't remember a time when her mother did not hit her.

[11] Sy. also reported to the society that when her mother becomes angry with her, she will throw things around the house. On November 29, 2016, her mother became upset with her and threw her school project against the wall.

[12] The mother, in her affidavit, stated: "I never had 'rages'. I never threw any items against the wall". However, two paragraphs later in her affidavit, the mother states:

Sometimes when I do cleaning of our place, I could throw away papers and perhaps among these papers there was Sylvia's project.

[13] The youth reported that the mother often criticizes her for her weight gain.

[14] In response, the mother stated in her affidavit:

I was dissatisfied with some episodes of my daughter's conduct. My daughter did not respect my option [sic] on her nutrition and life style.

[15] In the society's evidence in chief, the mother acknowledged to the society prior to the apprehension that she had a history of mental health problems. To some extent, she also acknowledged those problems in her testimony in this hearing. She testified that she is currently on medication for "some stressful situations".

[16] Prior to the apprehension on December 1, 2016, the society met with the mother and attempted to gain a history and an understanding of her illness and what treatment she was then following. However, the mother was unable to provide a coherent narrative to the society.

[17] When she was asked about her about her mental health at the hearing, mother testified that she did not want to disclose certain information because that is "private". She did say, however, that there have been some situations where her doctor has referred her to a "mental health hospital" and has also prescribed medication for her to take.

[18] When the society attended at the home on December 1, 2016 to apprehend Sy. the mother became very agitated. She began to grab at the workers and at Sy. to prevent them from leaving the home, even though Sy. herself wanted to leave the home with the society workers. The mother then began hitting the workers and hitting Sy. as well.

[19] When Sy. was safely outside the home she disclosed to the worker that the scariest part of this incident was how the mother was trying to get her to go back into the home. She also disclosed that the mother often behaves this way when she becomes aggressive.

[20] Following the apprehension, there was a supervised access visit between Sy. and the mother on February 15, 2017. There were no reported concerns at that visit. Because that visit had gone well, the next visit, scheduled for March 8, was to be semi-supervised rather than fully supervised.

[21] However, the next two visits – on March 8 and March 15 – did not go well. Sy. reported that her mother was constantly critical of her, and critical of her weight gain. Sy. said that she wanted to take a break from access visits. She decided that she needed to withdraw from her contact with her mother because it was simply too stressful for her to continue.

[22] She also reported to the society worker that she did not think she would be safe living at home with her mother.

[23] The mother's affidavit was remarkable for what it did not say. There was no reference whatsoever in her affidavit to her own mental health problems, something which she had acknowledged to the society prior to the apprehension, and something which became quite apparent during her own testimony at the hearing.

[24] Many of the mother's responses to questions that were asked of her at the hearing were rambling and incoherent. Most notably, the society asked her repeatedly to tell the court about her relationship with Sy. However, the mother seemed incapable of answering that question and, instead, she talked about her own illness and her surgery dating back to 2008. She seemed unwilling or unable to talk about her daughter, and her relationship with her daughter.

After the society counsel repeatedly attempted to re-direct the mother, without success, the court attempted to do so as well, explaining to the mother that the court wanted to hear about her relationship with Sy. in the past year. Once again, the mother reverted to the same responses, about her illness and her surgery in 2008.

[25] The rambling, incoherent and non-responsive way in which the mother testified tended to corroborate much of the society's concerns about the mother's mental health problems, the problems which were outlined in the society's affidavit evidence in chief.

[26] And, it must be noted, none of the questions which the mother's counsel asked of the society worker in cross-examination minimized or detracted from the society's evidence on any of the material points pertaining to the issues before the court.

The Finding in Need of Protection

[27] I turn first to the requested finding in need of protection under sections 37(2)(a)(ii) and 37(2)(b)(ii) of the Act. Those sections provide:

Child in need of protection

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

(a) the child has suffered physical harm, inflicted by the person having charge of the child or caused by or resulting from that person's,

(ii) pattern of neglect in caring for, providing for, supervising or protecting the child;

(b) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person's,

(ii) pattern of neglect in caring for, providing for, supervising or protecting the child;

[28] I am satisfied on the evidence reviewed in these reasons that the mother repeatedly hit Sy. This evidence was made clear not only from Sy.'s statements to the workers but, also, what the worker herself deposed to when she attended at the home on the date of the apprehension.

[29] The hitting was obviously harmful to Sy., irrespective that it may not have resulted in bruising to Sy.'s body. Furthermore, the evidence persuades the court that nothing has changed in the mother's attitude, such that if Sy. were to remain in the mother's care, she would continue to be at risk of ongoing physical harm.

[30] The court concludes that this pattern would likely continue because the mother suffers from some type of mental illness which prevents her from changing her behavior, absent some form of effective treatment.[2]

[31] I turn next to sections 37(2)(f) and 37(2)(g) of the Act. Those sections provide:

37(2)(f) the child has suffered emotional harm, demonstrated by serious,

(i) anxiety,

(ii) depression,

(iii) withdrawal,

(iv) self-destructive or aggressive behaviour, or

(v) delayed development,

and there are reasonable grounds to believe that the emotional harm suffered by the child results from the actions, failure to act or pattern of neglect on the part of the child's parent or the person having charge of the child;

37(2)(g) there is a risk that the child is likely to suffer emotional harm of the kind described in subclause (f)(i), (ii), (iii), (iv) or (v) resulting from the actions, failure to act or pattern of neglect on the part of the child's parent or the person having charge of the child;

[32] In assessing the evidence, the court does not require expert evidence to determine whether actual emotional harm has occurred or whether there is an ongoing risk of emotional harm. Simcoe Muskoka Child, Youth and Family Services v L.V., 2016 ONSC 7039

[33] However, in meeting its burden of proof under these sections of the Act, it is not sufficient for the society to simply establish that the child is merely sad or is experiencing some minor emotional unhappiness while in the care of her mother. The evidence must disclose on a balance of probabilities that the harm to the child is "serious".

[34] As discussed in these reasons, the mother engaged in a pattern of behaviour toward Sy. which caused Sy. to became so upset that she had to repeatedly lock herself in the bathroom to get away from her mother.

[35] The mother was often critical of Sy. for her weight gain and for not following the mother's demands for what she believed was the proper nutrition regime for Sy. to follow.

[36] The mother admittedly threw things, including Sy.'s own school project against the wall.

[37] While the mother denied going into "rages" in her affidavit evidence in chief, Sy. repeatedly reported this behaviour, and the society worker deposed to witnessing this kind of behaviour on December 1, 2016. The evidence persuades the court on a balance of probabilities that the mother often engaged in such behaviour.

[38] Furthermore, it was this very kind of behaviour which frightened Sy., which caused her to flee into the bathroom and lock the door to escape from her mother.

[39] Sy. was anxious and she was frightened because of the way in which her mother acted toward her. When her mother continued to criticize her for her weight gain, Sy. withdrew from access with her mother, following the apprehension.

[40] The way in which Sy. reacted to the various behaviours by the mother lead the court to conclude that the harm to Sy. was "serious". A child who repeatedly has to lock herself in the bathroom to escape her parent, a child who withdraws from access, a child who discloses constant rages by a parent and who states that she feels unsafe around that parent, all of these things, when taken together, demonstrate an overall serious emotional impact on the child.

[41] As I noted earlier, the mother's evidence was rambling and incoherent. She was not forthcoming about her obvious mental health problems. In fact she failed entirely to address these in her affidavit evidence in chief. This demonstrates to the court that she has little or no insight into her problems.

[42] Furthermore, she entirely refuses to acknowledge Sy.'s fears, her stresses and her feelings of being unsafe and unprotected in her mother's presence. She does not seem to understand or to be empathetic toward her daughter and to her daughter's feelings.

[43] All of this – her lack of insight, her inability or unwillingness to acknowledge her daughter's feelings of stress, fear and anxiety – reveals to the court that there is an ongoing risk of emotional harm to Sy. were Sy. to be placed back in mother's care.

Conclusion

[44] For the reasons set out herein, the court concludes that the society has met its burden of proof, on a balance of probabilities in establishing that Sy. is a child in need of protection pursuant to the following sections of the Act:

• Section 37(2)(a)(ii)
• Section 37(2)(b)(ii)
• Section 37(2)(f)
• Section 37(2)(g)

Justice Robert J. Spence

June 29, 2017

Footnotes

[1] Much of the evidence from the youth is hearsay, as told to a society worker, or contained in an email from the youth. No objection was made to the admissibility of this evidence. In the circumstances of this case and in the context of the evidence to which I refer, I consider the youth's evidence to be both necessary and reliable and, as such, it meets the test for admissibility as the principled exception to hearsay evidence. R. v. Khan, [1990] 2 S.C.R. 531

[2] Whether or not the mother suffers from a diagnosable mental illness is not something that the court is able to determine, in the absence of evidence from a qualified medical practitioner. However, regardless of the existence of such an illness, the court is able to conclude on a balance of probabilities that mother does have some serious problems which are interfering with her ability to act in an appropriate and safe manner with her daughter.