ONTARIO COURT OF JUSTICE

WARNING

The court hearing this matter directs that the following notice be attached. This is 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.

CITATION: Catholic Children's Aid Society of Toronto v. K.G., 2017 ONCJ 959

DATE: October 11, 2017

COURT FILE No.: Toronto C52300/10

BETWEEN:

Catholic Children's Aid Society of Toronto

Applicant,

— AND —

K.G.

D.B.

Respondents

Before Justice Roselyn Zisman

Heard on October 4, 2017

Reasons for Judgment released on October 11, 2017

Karen Ksienski................................................................ counsel for the applicant society

Gurbin Singh.............................................................. counsel for the respondent mother

Nancy Charbonneau.................................................. counsel for the respondent father

Nav Rai................................................... counsel for the Office of the Children’s Lawyer,

legal representative for the children

Zisman, J.:

1. Introduction and background

[1] This is a temporary care and custody motion with respect to 4 children, B.H.B.G. (“B.”) born […], 2007, K.B.B.G.(“K.”) born […], 2008, M.C.B.G., (“M”) born […], 2010 and S.B.G. (“S.”) born […], 2014.

[2] The Respondents are the biological parents of all of the children.

[3] At the time of the apprehension the child M. was in the care of his maternal great aunt Ms L.G. and her partner Ms I.G. (“maternal aunts”) and the other children were in the care of the mother.

[4] The society commenced this Protection Application on February 7, 2017. A without prejudice order was made placing all 4 children in the care of the maternal great aunts. Counsel for the children was appointed.

[5] There were innumerable adjournments due to counsel being retained, father then obtaining new counsel, a motion for production of police records, counsel for the children requiring time to interview the children and formulate a position and procedural service issues.

[6] The temporary care and custody motion was finally heard on October 4, 2017. This was 7 months after the children had been placed in the temporary without prejudice care of their maternal great aunts.

[7] The society seeks an order for the children to remain in the care of their maternal aunts, the current kin caregivers. This position is supported by the mother and counsel for the children. The father seeks an order that all 4 children be placed in his care or in the alternative, an order for increased access to occur in his home.

[8] The society relied on the Notice of Motion and affidavits of the family service worker Roxanna Hall sworn February 7, April 21, May 31, July 13, and August 15, 2017; the affidavit of the intake worker Cindy Ross sworn February 7, 2017; and the affidavit of the current family service worker Claudia French sworn October 4, 2017.

[9] The father relied on his Notice of Motion and affidavits sworn March 27, April 24 and September 25, 2017. The father also filed 2 handwritten affidavits (when he was self-represented) sworn July 24 and August 2, 2017.

[10] The court also reviewed the mother’s affidavit sworn May 14, 2017, the Protection Application and the father’s Answer and Plan of Care and the previous Statement of Agreed Facts executed by the parents.

2. The parents’ historic involvement with society

[11] The parents have been involved with the society since October 2010 and the society file has remained open since that date.

[12] In October 2010 the file was opened due to concerns reported by the paternal and maternal family members and the police with respect to domestic conflict and violence that at times escalated due to consumption of alcohol by both parents, a history of drug use by both parents, the mother’s recent use of cocaine and the father’s extensive criminal record. At the time all 3 children were in the care of a maternal aunt. The children were apprehended and remained in foster care for 8 months. During the time the children were in care, the parents co-operated with the society workers, attended a parenting program and the mother attended for individual counselling. The parents attended access regularly. The parents and members of the extended family also developed a plan of care to ensure the needs of the children would be met and that the children would be safe.

[13] On June 15, 2011 the children were returned to the care of both parents subject to terms of supervision for 6 months. During this time the parents received support from their extended family. The Statement of Agreed Facts signed by both parents acknowledged that K. and B. had a developmental assessment and that recom­mendations were made for ongoing services. The terms of supervision also required the parents to ensure that M. was followed by a doctor and that he be re-assessed in the areas of his gross motor skills.

[14] On December 12, 2011 the supervision order was terminated. The Statement of Agreed Facts signed by both parents indicates that there had been no reports of any new incidents of domestic violence or reports that the parents were under the influence of alcohol or illegal drugs in the presence of the children. The parents were co-operating and following up with recommended services for the children. All 3 children were enrolled in daycare and B. was also attending kindergarten and there were no concerns regarding attendance. But there were ongoing concerns regarding M. who at 1 ½ years old was still not walking or talking. M. had a developmental assessment and had been referred to a developmental pediatrician who recommended physiotherapy, speech therapy and other developmental resources be put in place for M.

[15] From December 2011 to June 2012 the parents worked voluntarily with the society and the family situation appeared stable with no new concerns being reported.

[16] However from August 2012 to October 2013 there were concerns about an ongoing pattern of the police attending the home due to adult conflict and domestic violence between the parents and both parents being under the influence of alcohol. The police attended 6 times during this time frame.

[17] On October 31, 2013 the society commenced a new Protection Application with a return date of December 10, 2013 based on the ongoing conflict between the parents, the parents minimizing the concerns and the parents not engaging in any services to address their relationship issues. The father also had an outstanding warrant for his arrest for 2 charges of domestic violence and a charge of mischief. Although the children appeared happy and healthy they were exposed to ongoing conflict between the parents. The society sought a supervision order placing the children with the mother. On December 10, 2013, on a temporary basis the children were placed with the mother. The Protection Application was subsequently amended to include the parents’ new child S. who was born on […], 2014.

[18] On May 1, 2014 the parents signed a Statement of Agreed Facts that provided that all of the children were in need of protection due to a risk of physical harm pursuant sections 37 (2) (b) (i) and (ii) of the Child and Family Services Act (“CFSA”). The children continued to be placed in the care of the mother pursuant to a 6 month supervision order with conditions that included a provision that the father not reside or spend overnights in the family home without approval by the society and such approval would be contingent upon his participation in services and further assessment by the society worker. Both parents were to participate in programs to address their individual issues and their relationship. Both parents were also to abstain from the use of alcohol and illegal and non-prescribed drugs in the presence of the children.

[19] On April 21, 2015 the supervision order that had remained in place for a year and a half was terminated. The Statement of Agreed Facts signed by the parents indicated that both parents had worked co-operatively with the society in terms of permitting home visits, that the home was clean and appropriate for the children and that the mother continued to receive support from her extended family and the father was attending the home and also assisting in the care of the children. Although the children’s care and basic needs were being met, the school reported that M. was having behavioural issues as he could become oppositional, defiant and required frequent redirection and the school was monitoring his progress. The Statement of Agreed Facts also stated that the parents’ on and off relationship continued to have significant issues around trust and infidelity which had been the primary source of conflict in the past. The children were aware of the adult issues and had been exposed to verbal disputes and the use of inappropriate language. The Statement of Agreed Facts further states that the society believed that there was a risk of reoccurrence of escalation and violence in the future as despite referrals and frequent reminders neither parent followed up on couples counselling despite this being a term of the supervision order. Both parents were cautioned that another incident would likely involve the children being removed from the parents’ care. Although there were no recent reported issues of adult conflict or domestic violence the father had still not turned himself in with respect to the charges that prompted the Protection Application in October 2013. The society was to remain involved with the family on a voluntary basis.

[20] The parties finally separated in June 2015 and the father did not return to the family home. The children remained in the care of the mother.

[21] The father showed no interest in obtaining services nor remaining engaged with the society. The father had limited contact with the society. The father had sporadic contact with the children in the community and attending at their school. Based on his affidavit he visited the children 3 or 4 times a month either at their school or at their daycare.

[22] Although the mother stated that she would commence court proceedings to obtain an order of custody and an access order, she did not follow through despite the offer of assistance from the society worker.

[23] The mother continued to work with the society. The mother was enrolled in a Police Foundations Course at a community college, she had a new partner who was a police officer, 3 of the children were in school and attending daycare and it appeared that the mother was meeting the needs of the children. However, the mother was having difficulty managing M.’s behaviour and at the time she did have an after school program for him. In September 2015, he mother placed M. in the care of her maternal aunts where he remained until December 2015.

[24] In early 2016, the mother obtained after school daycare for M. who then returned to her care. However, a few months later the mother expressed concerns about M.’s behaviours, she was becoming easily frustrated as she was not able to manage his behaviours. The mother failed to follow through with services offered to assist her with M.

[25] In August 2016 the mother took M., who was 6 years old at the time, to the hospital for him to be assessed and to be considered for medication. The hospital recommended M. be seen as an outpatient for a further assessment. But the mother did not follow through with the scheduled appointment. Further, the mother did not have M. connected to the Etobicoke Children’s Centre including a day treatment program that was available as of September 2016.

[26] Instead the mother reached out again to the maternal aunts and they agreed to care for M. and follow through with services including working with the school and with the Etobicoke Children’s Centre.

3. Events leading to apprehension

[27] On December 22, 2016, the father attended the children’s school and met with B., K., and M. He received concerning information that the mother’s boyfriend was being physically inappropriate with his children and he contacted the society to express his concern. The father reported that he also received a telephone call about a month later from the mother’s sister with respect to her concerns about the mother’s boyfriend disciplining the children and concerns about the mother’s care of the children and her drug use.

[28] The society acknowledges that the father was appropriate in reporting his concerns to the society.

[29] Ms Cindy Ross, a child protection worker working out of the Child and Youth Advocacy Centre was assigned to conduct the investigation as the mother’s boyfriend was a police officer in the same division where the mother and children resided. A police officer from another division assisted in the interviews. The father and the children were interviewed separately.

[30] The children confirmed that when they get into trouble they are given hot sauce in their mouths and K. and M. stated that they are also made to stand in the corner by both their mother and her boyfriend. K. and M. stated that they are afraid of the mother’s boyfriend.

[31] M. stated that the mother’s boyfriend had hit him on the head and also hit him with a closed fist on his body and his mother and her boyfriend had pulled his ears. M. also reported that his sister and brother has also been hit by his mother’s boyfriend.

[32] K. reported that he gets hot sauce as a punishment, is forced to stand against the wall and do lunges and is forced to eat. He described incidents of being hit with a wooden spoon and a metal spatula by his mother and being grabbed by the shirt and yelled at by the mother’s boyfriend. K. further reported that his mother and her boyfriend get into verbal arguments and his mother has thrown things at her boyfriend. K. reported that M. tried to stab him with a nail file and M. went to the hospital overnight although he was not clear as to when this happened.

[33] K. also reported that his mother let in 10 or more guys that he described as “Somalians”. He stated that they drank and that there were drugs all over the house.

[34] B. confirmed that she had been given hot sauce when she misbehaved and that her mother got the idea from her boyfriend. B. had seen K. and M. being given hot sauce but had not seen them disciplined in any other way.

[35] After the children were interviewed, Ms Ross met with the mother and advised her that based on the information obtained from the children, the society determined that it was not safe to return them to her care. The mother was in agreement with the society’s proposal that the children be placed with her maternal aunts.

[36] In a subsequent interview with the mother, she confirmed that she and her boyfriend gave the children hot sauce when they were misbehaving, that her boyfriend is strict and he will have the children stand on the wall or do lunges for 10 minutes. She stated that she had never seen her boyfriend hit the children and denied that she ever hit the children with any objects. She further denied that she was using drugs and felt the father was being malicious making these allegations. She stated that she had male friends and knows some “Somalians” but they are good people and have jobs.

4. Legal Considerations and applicable Law

[37] Temporary care and custody hearings are determined pursuant to s. 51(2), (3), (3.1), and (3.2) of the CFSA. The relevant portions which state as follows:

Custody during adjournment

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.

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.

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 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).

[38] The onus is on the society on a temporary care and custody hearing to establish, on credible and trustworthy evidence, that there are reasonable and probable grounds to believe that there is a real possibility that if the children are placed in the care of their pre-apprehension caregiver that it is more probable than not that the children will suffer harm. Further, the onus is on the society to establish that the children cannot be adequately protected by terms of conditions of an interim supervision order.[1]

[39] The court must make an order that is the least disruptive placement consistent with adequate protection of a child in accordance with subsection 1(2) of the CFSA. [2]

[40] The degree of intrusiveness of the society’s intervention and the temporary protection ordered by the court should be proportional to the degree of risk.[3]

[41] Exposure to a pattern of domestic violence has been accepted as creating a risk of emotional harm to children.[4]

[42] Subsection 51 (7) of the CFSA permits the court to admit and act on evidence that the court considers credible and trustworthy in the circumstances. In determining what evidence the court considers to be credible and trustworthy, the evidence must be viewed together. Evidence that may appear not to be credible and trustworthy when viewed in isolation might reach that threshold when examined in the context of other evidence.[5]

[43] A society seeking an order at this early stage of a case has only to demonstrate that it has reasonable grounds to believe that there is a protection risk for the children that justifies society intervention[6]. The burden on the society at this stage does not go as high as showing that on the balance of probabilities there is an actual risk to the children in their caregivers’ care.[7]

[44] Subsection 51 (3.2) of the CFSA applies to an order being made in accordance with clause 51 (2) (b) for a temporary supervision order.[8]

[45] The onus of proof or criteria are the same when the society is requesting a non-removal order pursuant to clause 51 (2) (b) of the CFSA or a removal order pursuant to clauses 51 (2) (c) and (d) of the CFSA. The issue to be determined in making the non-removal order under clause 51 (2) (b) is whether or not the society has reasonable grounds to believe that there is a probable risk that the children will suffer harm if reasonable terms and conditions of a supervision order are not imposed.[9]

5. Father’s plan of care

[46] The father has presented a plan that involves all of the children residing with him and his girlfriend Ms J.L. and her 4 children.

[47] Ms J.L. and the father have lived together for about a year but have been friends for several years.

[48] Ms J. L. has 4 children from previous relationships who are 8 years old, 5 years old, 4 years old and 1 year old. The father of her 3 eldest children resides in the same apartment building in a different unit and they have a good co-parenting relationship and are both involved in the care of the children.

[49] The plan is for all of the children to reside in Ms J.L.’s apartment. There are triple bunk beds in two bedrooms for 6 children and Ms J.L.’ s youngest child sleeps in the father’s and Ms J.L’s bedroom. One of Ms J.L.’s daughters has cerebral palsy and generally sleeps in the grandparents’ apartment that is also in the same building.

[50] Ms J.L. has had an open file with the children's aid society since November 2016 concerning issues relating to the care for her daughter that has cerebral palsy. Ms J.L.’s worker was not aware that the father was residing with Ms J.L. and was involved with the care of her children.

[51] Prior to the court proceedings Ms J.L. had met the children when she went with the father to visit them at their daycare and school. Subsequently, Ms J.L. has attended at some access visits.

[52] It is the father’s position that he was always an equal or if not primary caregiver of the children prior to the separation and was always able to meet their needs. He deposes that M. never had any behavioural issues prior to the separation.

[53] The father reports that he has the financial means to care for the children as he is in receipt of ODSP income as a result of being diagnosed with post-traumatic stress disorder because of his incarceration. The father deposes that Ms J.L. receives child support from the father of her children and from a dance studio that she has just opened.

[54] The father is a stay at home father and would be available in the event of any emergencies. His plan is for all of the children to attend the same school they previously attended and that the youngest child S. would be beginning school in September 2017 and in the meanwhile he would keep her in daycare.

[55] The father also lists several relatives who would be available to support him.

[56] The father states that he has attended access and that the visits have been positive. He has been able to manage the children’s behaviour and therefore has shown his ability to care for the children.

[57] The father completed a parenting program.

[58] The society does not dispute that the father loves the children, they enjoy the visits especially the electronic devices he brings them and that the father is generally able to manage the children during the access visits.

6. Evidence of concerns with respect to the father’s plan

[59] Based on the evidence presented on this motion and the previous history of the parents and the children with the society, I have the following concerns with respect to the father’s plan:

a) Previous history of domestic violence:

The father and mother have a long history of domestic violence and conflict. The father has never obtaining any counselling with respect to their relationship. It is the father’s position that he never assaulted the mother and the only charge against him was resolved by means of a peace bond for 12 months that expired in July 2017. The father refused to give his consent for the society worker to speak to the father’s prior partner with whom he has 2 children to determine if there was any domestic violence in that relationship. There is a new allegation that there is domestic conflict between the father and his new partner Ms J.L. Although this is still under investigation and not substantiated, in view of the father’s history this allegation is of concern;

b) Lack of insight into the effect of domestic violence on the children:

According to the father the police were called at least 200 times during the course of his relationship with the mother. The father generally blames the mother for the conflict in the relationship but does not show any appreciation for the effect of such domestic violence on the children. Further, despite the children again being exposed to verbal conflict between the mother and her boyfriend and M. being diagnosed with post-traumatic stress disorder as a result of exposure to the domestic violence, the father continues to minimize the effect on the children;

c) Lack of protecting the children and lack of involvement:

Despite the father stating that he was the primary parent or at least an equal parent and despite his concerns about the mother’s parenting, the father does not explain why he consented to the mother being the primary parent from October 2013 to April 2015 while he was not permitted to stay in the home overnight. Most concerning is the fact that after the separation in June 2015, the children remained with the mother and the father only saw them sporadically at school or at daycare 3 or 4 times a month. The father deposes that he did not want to take the mother to court as he was hopeful the situation would resolve and the mother was allowing members of his extended family to see the children. The father has no insight into the effect his absence would have had on the children especially if he had been as actively involved in their lives as he deposes. Further, in view of the concerns the father previously expressed about the mother’s history of drug use and her life style, it would have been expected that he would remain involved to ensure the needs of the children were being met. The father does not explain in any of his affidavits why he did not intervene when the mother placed M. in the care of the maternal aunts after the separation. Either he was unaware of where M. was living which would mean that he was not having much contact with the children or he was not willing or able to care for M.;

d) Lack of appreciation of the special needs of M.:

The father deposes that prior to the separation M. had no behavioural needs but it is clear from the previous Statement of Agreed Facts signed by the father that there were previous concerns about M.’s behavioural and developmental issues and that M. was exhibiting significant behavioral challenges at home and at school. Despite the father receiving a psychiatric report and meeting with M.’s counsellor, the father is not in agreement with the recommendations of the doctors overseeing M.’s treatment that at least for the short term M., in addition to weekly counselling, M. receive medication for his ADHD and his develop­mental trauma. As of September 2017 the plan was for M. to attend the day treatment program at the Etobicoke Children’s Centre. However, M. was recently admitted to the Humber River Child and Adolescent Unit for a 10 day assessment and then discharged to the outpatient program. M. is attending a section 23 school during the day and will need to be seen as an outpatient for 6 to 8 weeks and will need more time to transition to the Etobicoke Children’s Centre. Based on the father’s affidavits he minimizes the extent of M.’s needs and it is not clear from the father’s affidavit if he would abide by the recommendations of M.’s treatment providers in view of his opposition to the medication being prescribed;

e) Lack of appreciation of the needs of the other children:

It has been recommended that both B. and K. receive counselling regarding their exposure to parental conflict and removal from their mother’s care. The current caregivers are pursuing such counselling. Based on the father’s lack of appreciation as to the effect of the children’s upbringing has had on them, it is not clear that he would actively pursue such counselling as he deposes that he does not feel they need it. It also appears that the father was not aware that S. would be starting school in September 2018, not 2017 as he deposed, and as a stay at home parent he would not be entitled to a daycare subsidy and therefore it is unclear how he would be in a position to continue his plan that S. remain in daycare until she is able to attend school;

f) Lack of co-operation with the society:

After the parents separated in June 2015, Ms Hall, the society worker who had been involved with the family since 2010, attempted to engage the father. However, according to Ms Hall, the father either missed the appointments or did not return her calls. The father did not dispute this evidence or explain why he did not remain in contact with the society. Subsequently, the father and Ms J.L. did not abide by conditions with respect to access such as Ms J.L. attending access visits without prior consent of the society. Such a condition was important as the society wished to reintegrate the children and assess the father’s ability to care for the children on his own;

g) Lack of honesty and inconsistencies:

The father has made numerous inconsistent statements to the society. For example, when asked to explain his finances the father initially deposed that Ms J.L. lived in a condominium that she owned and that her husband who is the father of her 3 children lived in a condominium she owed and he paid her rent. He also deposed that Ms J.L. had an income in the “six figures”. He later filed another affidavit correcting his errors and deposed that Ms J.L. rented the apartment and she received a $100,000 settlement, that he mistakenly called income, from an accident that her husband was involved in as although they were separated she was still legally his wife. The father also corrected his statement that Ms J.L. owned the apartment the father of her 3 children lived in and that he also rented his apartment. The budget presented to the society indicates Ms J.L. receiveds$1,000 per month as support. But she had previously told the society worker that the father of her 3 children was also in receipt of ODSP. When the father and Ms J.L. met with the society worker in February 2017, she advised that she knew the father’s children as she had gone with him to their school but her children did not know the father’s children but she anticipated that they would all get along. However, in the father’s affidavit sworn September 25, 2017 he deposes that his children know Ms J.L.’s children well, except for her daughter that has cerebral palsy, as they met during his visits to their school and daycare. The father and Ms J.L. were also inconsistent in the information they provided about their driver’s licences. Initially the father stated that his license was suspended due to unpaid traffic infractions. He then produced a G1 licence that he only issued on July 28, 2017. Such a licence only permits him to drive with a driver with a G class licence whereas Ms J.L. who was driving only provide proof of a G2 licence and although that permitted her to drive the children it did not permit the father to drive them with her in the car which it was alleged he had been doing. Then when asked to provide valid insurance Ms. J.L. only had proof of insurance that had expired in August 2016. Ms J.L. has now produced a valid G class licence but that was only issued to her on August 30, 2017. There have been several reports from the children that the father drove them and that Ms J.L. drove them and that Ms J.L. was present for some of the community visits. Both the father and Ms J.L. have denied any infractions of the conditions and expectations of the society with respect to the access visits; and

h) Lack of priorities:

The father has not been able to put the needs of the children before his own needs. The society advised the father that it was not prepared to consider the joint plan being presented by himself and Ms J.L. due to her own involvement with the children's aid society with respect to her special needs child and concerns with respect to her child’s failure to thrive. There were concerns about 8 children being placed together. However, the society indicated that if the father was willing and able to present a plan on his own, the society was willing to assess such a plan. It is the father’s position that he is not willing to give up his relationship with Ms J.L. given though it is only being suggested that they not live together.

7. Kin plan

[60] The plan proposed by the society and supported by the mother and counsel for the children will result in the children remaining in their current placement.

[61] The maternal aunts have been meeting all of the children’s needs and the children are doing well in their care. The children have expressed that they wish to remain in their current placement.

[62] The maternal aunts have been co-operative with the society. Despite M.’s significant challenges, the caregivers have continued to care for him and are following the recommendations of his treatment providers.

[63] Except for criticism from the father and a recent complain he made that the maternal aunts were using physical discipline with M. and S., there is no evidence that the children are not being well cared for. The father’s complaint is still being investigated but based on the past history I have significant doubts that there is any inappropriate discipline occurring.

6. Application of the findings of facts to the law

[64] It is agreed by all counsel that as a result of the fact that M. was in the care of his maternal aunts at the time of apprehension and the other children were in the care of the mother, that two different tests are applicable on this temporary care and custody motion.

[65] As M. was in the care of his maternal aunts at the time of the apprehension, subsection 52 (2) (a) or (b) of the CFSA are applicable. The society is satisfied that if M. remains in the care of his maternal aunts with conditions of supervision, that any risk of harm can be adequately protected. Further, it is submitted that this is the least disruptive alternative.

[66] It is the position of the father, that the maternal aunts are not meeting M.’s needs and that he should be removed from their care. It is submitted that since M. was placed in the care of the maternal aunts, he has been placed on medications and been hospitalized for 10 days. It is the father’s position that M. did not have any behavioural issues before the father left the relationship and that during access visits he has shown that he is able to handle M.

[67] I find there is not a shred of evidence at this stage of the proceedings to support the father’s position. Moving M. would destabilize his current placement and there is significant doubt that the father would comply with M.’s present treatment plan. To suggest that M.’s behavioural issues just occurred when the parties separated and that his kin caregivers are not meeting his complex needs, shows that the father has a very limited understanding of M.’s needs and indicates that he is minimizing the effect of M.’s exposure to the parents’ long standing conflict on this child.

[68] With respect to the children B., K. and S. it is not disputed that the society has met its onus on the first and second branch of the test in subsection 51 (2) (a) and (b) of the CFSA namely, that there reasonable and probable grounds to believe that the children will suffer harm if placed with the mother. The mother, at this time, is not contesting that the children cannot be returned to her with or without terms of supervision. Therefore, the court must consider placing the children with another person pursuant to subsection 51 (2) (c). Pursuant to this section the maternal aunts and the father are on equal footing as the section does not give a biological parent any greater status than any other person.

[69] Further, subsection 52 (3.1) of the CFSA states that before making an order that a child be placed in care of the society that the court shall consider whether or not it is in the best interests of the child to make an order placing the child in the care of a relative or a member of the child’s extended family or community.

[70] With respect to B., K., and S. there are two competing plans that need to be assessed with no priority to either plan. For the reasons outlined above, there are significant deficits and concerns about the father’s plan. I am also concerned that despite the joint plan proposed by the father, there is no affidavit filed by Ms J.L. and there are many unanswered questions about her relationship with the father of her 3 children and nothing at all is known about the father of her youngest child and his involvement. There are still unknowns about her past and present involvement with the children's aid society.

[71] The society’s plan offers the children stability and caregivers who are willing and able to meet their needs.

[72] It is clearly in the children’s best interests to remain in their present placement. It would be unrealistic of the court to ignore the length of time that these children have remained in the “temporary without prejudice” placement with the maternal aunts. This temporary care and custody motion was delayed for many months largely as a result of the father not proceeding with the motion. Although society counsel did not submit that the court should now consider that due to the passage of time that order should be viewed as a with prejudice order, nevertheless the children’s reality is that they are settled and comfortable in their current placement. The terms of the temporary without prejudice order are being complied with and there is no risk of harm to the children. The father has shown that he cannot even comply with the terms of his access or that he can be honest and co-operative with the society.

[73] The continued placement of the children with their maternal aunts is the least disruptive placement that is consistent with the adequate protection of the children in accordance with subsection 1 (2) of the CFSA.

8. Access

[74] In the event that the court ordered that the children remain in the care of their current caregivers, the father sought an order for increased access for 3 week-ends a month in his home or any other schedule ordered by the court.

[75] Subsection 51 (5) of the CFSA provides that where an order is made under clause 2 (c) or (d) of subsection 51 (2), the court may order access on any terms that it considers appropriate. In determining what order is appropriate, the court should consider the paramount purpose of the CFSA, being the best interests, protection and well-being of children and the secondary purposes of maintaining the integrity of the family unit, assisting families in caring for their children and recognizing the least disruptive action consistent with the best interests of the children (subsections 1 (1) and (2) of the CFSA). In assessing best interests, the court should consider the relevant factors set out in subsection 37 (3) of the CFSA.[10]

[76] I have considered all of these factors.

[77] Currently the mother has weekly access for 2 hours fully supervised at the society’s office. The maternal great grandmother attends most of the visits. The visits continue to be chaotic and the mother struggles in managing the children’s behaviour.

[78] As of September 11, 2017, the mother’s access only includes 2 children at a time, B. and K. together and S. and M. together. This change was made to provide the mother with more hands on support during access to enhance her parenting skills and behaviour management as well as to make the access visits more therapeutic and enjoyable for the mother and the children.

[79] The father is having weekly visits on Mondays and Wednesdays for 2.5 hours. His visits consist of both unsupervised time in the community and supervised time in the society’s office. The father’s access also includes only 2 children at a time and Ms J.L. has been told not to attend the visits.

[80] The society has noted that during the father’s supervised visits, he is able to manage and address the children’s behaviours appropriately. He is open to staff support and accepts their feedback.

[81] The maternal aunts are reporting that both parents are speaking inappropriately to the children about them and speaking to the children about the court process. These concerns have been repeated several times by counsel for the children. The father is also complaining that the maternal aunts are speaking negatively about him and his background. All of the parties deny that they are speaking negatively about the other parties. But this is an ongoing theme and concern.

[82] In order to consider expanding the father’s access, I have considered that the father’s access visits are going well but at present he is only seen to be able to manage 2 children at a time. Most importantly I have considered that the father does not support the children’s current placement and has been very negative about the care the maternal aunts are providing to the children especially with respect to M. The same concerns about the father’s plan with Ms J.L. and her children are relevant with respect to expanding access to include overnight access.

[83] It is the position of counsel for the children that the children are content with the current access arrangements and only K. has expressed any interest in more access.

[84] At this time, I find that it is not appropriate to expand the children’s access to the father. The current order requires that the parents have access at a minimum of once a week in the discretion of the society. Although the father is currently having access twice a week, such an order provides flexibility to the society to expand or reduce access as required by the needs of the children. The family has also been on a waiting list for several months for access to occur at the Saturday access program that would allow longer visits with less supervision. If the current order remains in place it provides the most flexibility for both parents and the children.

8. Order

[85] There will be an order as follows:

1. The children, B.H.B.G. born […], 2007, K.B.B.G. born […], 2008, M.C.B.G. born […], 2010 and S.B.G. born […], 2014. shall be placed in the temporary care and custody of Ms. L. G. and Ms. I.G. subject to the supervision of the society on the following terms:

a) They shall make themselves available to meet with the society worker as requested in the home, the society’s office or in the community;

b) They shall allow the society worker to meet with the children privately in the home, community or at their school or daycare;

c) They shall follow through with services deemed necessary for the children such as counselling services at the Etobicoke Children’s Centre;

d) They shall work cooperatively with the society kinship worker; and

e) They shall update the society of any changes to their telephone number and address within 24 hours of such change

2. The mother and father shall have access at a minimum of once a week on terms in the discretion of the society.

3. None of the parties, including Ms. L.G. and Ms I.G., shall discuss with the children the court proceedings or the children’s future living arrangements or speak negatively about any of the parties.

Released: October 11, 2017

Signed: Justice Roselyn Zisman

[1] Children’s Aid Society of Ottawa-Carleton v. T., 2000 CanLII 21157 (ON SC), [2000] O.J. No. 2273 (SCJ).

[2] Children’s Aid Society of Hamilton v. B.D. and F.T.M., [2012] O.J. No. 1775 (SCJ)

[3] Children’s Aid Society of Toronto v. J.O.I., [2012] O.J. No. 2016 (OCJ)

[4] Children’s Aid Society of Toronto v. M.S., [2010] O.J. No. 2876 (SCJ)

[5] Family and Child Services v. R.O., [2006] O.J. No. 969 (OCJ)

[6] L.D. v. Durham Children’s Aid Society and R.L. and M.L., 2005 CanLII 63827 (ON SCDC), [2005] O.J. No. 5050 (Div.C.)

[7] Children’s Aid Society of Toronto v. M.L.R., [2011] O.J. No. 5552 (OCJ)

[8] Catholic Children's Aid Society of Hamilton v. P. (C.R.), [2011] O.J. No. 1454 (SCJ)

[9] Children's Aid Society of Halton Region v. Z. (T.A.), [2012] O.J. No. 786 (OCJ) at par. 20.

[10] Jewish Child and Family Services of Greater Toronto v. H.B.S., [2012] O.J. No. 5055 (OCJ).