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.

Court Information

Ontario Court of Justice

Date: December 18, 2017

Court File No.: C11290/17

Between:

Children's Aid Society of Toronto Applicant,

— AND —

B.H. A.T.F.H. Respondents

Before: Justice Roselyn Zisman

Heard on: October 26 and December 11, 2017

Reasons for Judgment released on: December 18, 2017

Counsel

Nicole Soucie — counsel for the applicant society

Amanda Taerk — counsel for the respondent mother

A.T.F.H. — on his own behalf

Tammy Law — amicus curiae

ZISMAN, J.:

Introduction

[1] This is a temporary care and custody motion with respect to the child N.H. born […], 2017. The Children's Aid Society of Toronto ("the society") seeks an order placing the child in the care of the paternal great-aunt P.H. subject to terms of supervision and with access to the parents in its discretion.

[2] The Respondent parents are the parents of N.H. who is the subject of this motion and of his twin Jayce Ho who died on September 27, 2017.

[3] The parent seeks a return of the child to their care. However, they offer several alternative plans if this is not ordered. The mother seeks an order that the child be placed with the paternal uncle K.V.H. and that either or both of the parents would reside in that home. The father seeks an order that the child remain in the home of the paternal great-aunt P.H. or in the alternative, he supports the mother's plan that the child be placed with his uncle Mr. K.V.H. and that either parent live with Mr. K.V.H. or with P.H.. Both parents seek expanded access.

Events Precipitating Society Involvement

[4] On July 26th, 2017 the society emergency after hours service worker ("EAHS") received a call from Police Constable Maryk that 911 was called at 1:36 a.m. to report that an infant J.H. was not awake and not breathing. When the fire department arrived, J.H. was conscious and breathing and was transported to the hospital. After being medically assessed he was subsequently discharged.

[5] The father called 911 again at 8:39 a.m. and started CPR on J.H. who was having difficulty breathing and turned blue. J.H. was transported to the hospital and later admitted to the Hospital for Sick Children.

[6] On July 27, 2017 Dr. Sniderman, from the Hospital for Sick Children, called the EAHS worker and reported that J.H. had a head bleed that appeared suspicious. Dr. Sniderman reported that when he asked that mother if J.H. fell, she replied that he did not fall and she did not shake him. He found that answer odd as she was not questioned about shaking J.H..

[7] On July 27, 2017 the mother was interviewed by Detective Constable George. Sarah Middleton, the society intake worker, listened to the audiotape and the mother made the following statements:

a) She was home with J.H. the day prior and nothing appeared to be wrong;

b) That night the parents argued and when the father went to check on the children, J.H. was not breathing; and

c) There have been no falls, shakes and nothing dropped on J.H.'s head.

[8] On July 28, 2017, Detective Constables Wong and Panton interviewed the father and Ms Middleton watched from an observation room. The father reported as follows:

a) The mother told him on July 26th that she was depressed;

b) Both parents have been getting restless with the children and there have been a lot of verbal arguments between the parents;

c) On July 26th the parents argued and the father did not return home until 10:00 p.m. and then they had another verbal argument. The mother left the room and went into the room where J.H. was sleeping. Later that evening they had another lengthy argument for about an hour and a half. The children were crying for about 30 minutes. The mother locked herself in the bathroom and at that time the father went to check on the children and observed that J.H. appeared to be unconscious;

d) During the argument the father described that he was feeling irritated, tired, furious and angry. He described that the mother was feeling tired, frustrated and angry;

e) The father called emergency and J.H. was taken to the hospital where he was assessed and then discharged. Upon arriving home, J.H. was fed and vomited a larger amount than usual. His eyes were drowsy and he was gasping for air. He was gain taken to the hospital but later transferred to Hospital for Sick Children;

f) Up until this incident J.H. had been "perfect"; and

g) No one babysat J.H. since July 24, 2017. The mother and the father had been present along with friends and family members.

[9] On July 27th, the mother refused to provide any additional information to the police and refused to speak to Ms Middleton.

[10] Also on July 27th after being told that by Ms Middleton that N.H. could not go home with her, the mother indicated that she wanted N.H. to go home with the father's aunt, P.H.. After completing preliminary records check, the society approved the placement.

[11] On July 28th and August 1st, Ms Middleton received verbal information from Drs. Rossoni and Schwartz of the Suspected Child Abuse and Neglect program ("SCAN") indicating that J.H. has significant brain damage and that his injuries were most likely caused by trauma. J.H. was given a very poor prognosis and was on life support. Without any explanation for the injuries the SCAN doctors suspected inflicted injury. The injuries most likely occurred within a day or two of the immediate symptoms.

[12] N.H. was to be assessed and the hospital tried to schedule a MRI on his brain for August 2nd. But as the hospital needed the parents' consent (a court order with respect to N.H. was not obtained until August 3rd) the MRI was delayed as the hospital was unable to obtain the parents' consent and the MRI needed to be rescheduled for August 10th.

Court Proceedings

[13] As a result of this information the society commenced a Protection Application with respect to N.H., returnable on August 3, 2017. A temporary without prejudice order was made placing N.H. in the care of his paternal great-aunt P.H..

[14] At the time the society did not commence a Protection Application with respect to J.H. as the parents were not having contact in the absence of medical staff. However, on August 9th although J.H. continued to remain in the hospital J.H. was formally apprehended after the society was made aware that the medical staff could not guarantee that the parents would not be left alone with the child.

[15] A temporary without prejudice order was made on August 11th placing J.H. in the care and custody of the society. The parents were granted access in the discretion of the society but to be supervised by the society or its delegate.

[16] Between August 11th and September 26th there were several 14B motions filed with respect to disclosure and procedural issues and there were 4 urgent court attendances. The parents sought further access and the right to retain medical decision making powers as they were not in agreement with the medical staff recommendations that all medical life-saving interventions be removed and that J.H. be allowed to have a natural death. The best prognosis was that he would be in a permanent vegetative state where he might be able to breathe on his own but would not regain any other function. The society and the parents were subsequently able to reach an agreement regarding the removal of medical interventions and J.H. died on September 27th.

[17] On September 26th all counsel agreed to adjourn the temporary care and custody motion scheduled for that day with respect to N.H. to October 26th for a half day. Counsel for the parents were given leave to cross-examine any of the society's witnesses in court as part of the motion on proper notice to the society. At the time, although counsel for the parents had received disclosure from the society and copies of all of the medical records, the SCAN report had not been received and the parents' counsel wished to cross-examine Dr. Sarah Schwartz. Subsequently parents' counsel advised that they wished to cross-examine at least one society worker and Dr. Schwartz and a full day for the motion would be needed. The court accommodated this request.

[18] On October 23rd Tammy law, counsel for the father, filed a motion to be removed as counsel of record. However, with the consent of the Attorney-General's office, she was appointed as amicus for the sole purpose of cross-examination of Dr. Schwartz as counsel had previously agreed with Legal Aid that Ms Law would cross-examine Dr. Schwartz on behalf of both counsel to save resources as she had received third party assistance to prepare her cross-examination. The father was present for this motion and did not object.

[19] On October 25th Amanda Taerk, counsel for the mother, requested by 14B that the temporary care and custody motion be adjourned on the basis that it would be prejudicial to the mother to permit Ms Law to cross-examine Dr. Schwartz. However, having reviewed the Ms Law's affidavit in support of her motion I ruled that there was nothing in the affidavit (that has been sealed) that was prejudicial to the mother. Further, I noted that N.H. had been in the care of the paternal aunt since August 3rd and the temporary care and custody motion had been scheduled for September 17, and then rescheduled to September 26th and was now scheduled for an entire day for October 26th with arrangements having been made for Dr. Schwartz to attend. I noted that Ms Law had advised the court that she was seeking to be appointed as amicus in order not to prejudice the parties as the arrangement had been between herself and Ms Taerk that she would conduct the cross-examination and that she could do so without any conflict. It was on that representation that the order appointing Ms Law as amicus was made. To further re-schedule the temporary care and custody motion again would be a waste of court resources and there was an uncertainty as to when Dr. Schwartz might be again available.

[20] All counsel were ordered to attend on October 26th and any further submissions could be made at that time. The father, with the assistance of duty counsel, agreed that Ms Law could conduct the cross-examination of Dr. Schwartz. Ms Taerk was also permitted to cross-examine Dr. Schwartz. As the father indicated that he would be applying for new counsel, both the father and counsel for the mother were advised that after the cross-examination was complete, the court would order the transcript for counsel and the temporary care and custody motion would then be adjourned for submissions to enable father's new counsel and Ms Taerk to review the evidence. Dr. Melissa Rossini who was also an author of the report was available for cross-examination but neither counsel requested that she or any other society counsel be examined.

[21] On the resumption of the temporary care and custody motion on December 11th Ms Taerk submitted that counsel for the society, Nicole Soucie, should not have been permitted to refer to the cross-examination of Dr. Schwartz in her factum. I ruled that it should have been clearly understood by all counsel that the oral evidence of Dr. Schwartz, who had been cross-examined for almost an entire day, was part of the evidence on the temporary care and custody motion. Further, in the adjournment period the SCAN report with respect to N.H. had been completed and filed. Dr. Schwartz had been cross-examined on N.H.'s injuries but although her report was completed it had not been peer reviewed and therefore had not been filed when she testified. Ms Soucie was also permitted to file a further affidavit that showed improvement on the parents' access.[1]

[22] Since the commencement of the Protection Application the society has filed several affidavits and both parents filed their own affidavits and they also filed affidavits of their family members and friends. Although some of the affidavits related to only J.H. it was agreed that all of the affidavits could also be relied upon for this motion. Further, although both parents' counsel filed many affidavits, due to the urgent and changing circumstances in the last several months, they have not served and filed Answers and Plans of Care. The society did not pursue a request to proceed on an uncontested basis. As the parents' affidavits refer to their position and their plans, it was agreed that motion would proceed on its merits and the parents would be given a further extension to file their Answers and Plan of Care.

[23] I have therefore reviewed and relied on the Protection Application, the society's Notice of Motion dated August 3rd and Amended Notice of Motion dated December 5th, the society's factum, the transcript of Dr. Schwarz's oral evidence and the 20 affidavits filed in this proceeding.

Legal Considerations and Applicable Law

Statutory Framework

The temporary care and custody hearings are determined pursuant to s. 51(2), (3), (3.1), and (3.2) of the Child and Family Services Act, R.S.O. 1990, c. C.11 ("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).

Legal Principles

[1] 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 child is placed in the care of their pre-apprehension caregiver that it is more probable than not that the child will suffer harm. Further, the onus is on the society to establish that the child cannot be adequately protected by terms of conditions of an interim supervision order.[2]

[2] 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.[3]

[3] 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.[4]

[4] 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]

[5] 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 child 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 child in their caregivers' care.[7]

[6] 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]

[7] 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 child will suffer harm if reasonable terms and conditions of a supervision order are not imposed.[9]

Relevant Evidence Subsequent to Commencement of Protection Application

[9] Neither of the parents have provided any explanation for the injuries to either J.H. or N.H..

[10] The police investigation is still ongoing. The mother has indicated she has been instructed by her criminal counsel not to make any further statements to the police.

[11] Although the family members gave an initial statement to the police, the mother's mother, step-father and brother who all reside in the home have also refused to provide any additional statements to the police.

[12] All of the family members and friends who filed affidavits and who were proposed as either possible caregivers or access supervisors deposed that they had never seen any concerning behaviour by either parent towards the children.

[13] The father reported that the mother was suffering from depression around the time of J.H.'s admission to hospital. The father subsequently also disclosed that the mother has been cutting her arms. The mother acknowledged a history of self-harm while a teenager and also that she has been self-harming since J.H.'s death.

[14] The mother agreed to the relief sought by the society to enable the society worker to communicate with the mother's medical and mental health professionals.

SCAN Report and Evidence of Dr. Schwartz

[15] After a lengthy voir dire, Dr. Schwartz was found to be an expert in the area of pediatrics and the assessment and evaluation of suspected injuries in children.

[16] Dr. Schwartz's report dated October 11th with respect to J.H. was filed. In summary, Dr. Schwartz concluded that:

J.H. presented to hospital at 15 weeks of age and was documented to have subdural hemorrhages, hypoxic ischaemic encephalopathy, spinal subdural hemorrhage, and a metaphyseal fracture of the right distal tibia. No medical condition was identified that would account for any of these findings. The subdural hemorrhages, retinal hemorrhages, spinal hemorrhage, and metaphyseal fracture documented in J.H. are each representative of injuries due to significant applications of force. The constellation of head, eye, and spine findings can together be explained by a significant head injury, most likely occurring in a short time period prior to presentation to hospital on July 27, 2017. The fracture may have occurred at the same time as head as the head injury or at a different time, and may have been days or weeks old at the time of presentation. J.H. had life threatening injuries at the time of initial presentation requiring resuscitation and intensive care. He died on September 27, 2017.

[17] Despite extensive cross-examination, Dr. Schwartz's conclusions were not diminished or changed.

[18] With respect to dating the injuries, Dr. Schwartz testified that she was not able to date the place and time specifically when J.H.'s injuries occurred. However, the neuroimaging and the evolution of J.H.'s brain injury suggested that the injury occurred within hours to days, not weeks, prior to the presentation at the hospital on July 27th, 2017. Dr. Schwartz testified that those things suggest a more recent time period, "whether it occurred on the 27th or the 26th, or if he was possibly suddenly symptomatic on the 26th and it occurred on the 25th."

[19] Dr. Schwartz's report with respect to N.H., dated September 6, 2017 but not forwarded to the society until October 27, 2017, concluded that:

N.H. was 15 weeks of age when he was documented to have a left thigh petechiae and 17 weeks of age when he was documented to have bilateral subdural hemorrhages. No medical disorder was identified which would account for the petechiae or the subdural hemorrhages documented in N.H.. The most likely cause of the petechiae documented in N.H. is traumatic injury. Possible causes in this case may include gripping for x-rays or inflicted trauma. At the time of this writing, no injury events have been reported.

Based on all of the information available in N.H.'s case, the subdural hemorrhages may have resulted from increased extra-axial spaces and/or traumatic injury during infancy, the latter which may include impact(s) to the head, inertia forces, or a combination of those forces. At the time of writing this report, no injury events have been reported.

Children with a history of head injury are known to be at increased risk of developmental delay, learning and behavioural problems. It is not possible to determine N.H.'s exact prognosis at this time but he will need to be followed closely in the future by a paediatrician to ensure he is meeting his developmental milestones and achieving his goals at school.

[20] In her cross-examination, Dr. Schwartz confirmed that the most likely cause of the petechiae in N.H. is traumatic injury and the most likely cause of subdural hemorrhages are the result of trauma. In N.H.'s case it was not possible to date his injuries.

Parents' Plan

[21] The parents have presented various plans with respect to N.H..

[22] The father's plan presented in his affidavit of October 16, 2017 involved him separating from the mother. The father proposed that N.H. would live in the home of his uncle, Mr. K.V.H. and his uncle's partner and that they would be in home supervisors. However, the paternal great-aunt P.H. would continue to be the daycare provider and would care for him during the day.

[23] In Mr. K.V.H.'s affidavit sworn October 16th, 2007 he deposed that he had reviewed the society documents and met with the child's service worker and understood the society's concerns that one or both of the parents had injured the children but he stated, "I reject that idea".

[24] On October 19th, 2017, Mr. K.V.H. swore another supplementary affidavit in support of the mother and that he wishes N.H. returned to one or both of his parents and if he cannot be returned to both together he would support a plan with the mother moving into his home.

[25] On October 19, 2017 after a visit, Kelly Rose-Hurst, the child protection worker who assumed carriage of the file, asked the parents if they wished their next visit separate or together and they confirmed they wanted the visits together. When the father was asked to discuss his plan with Mr. K.V.H. and his partner, the father stated that he preferred to discuss that next week as things would be changing with their plan.

[26] On October 23, 2017, Ms Rose-Hurst asked the parents again if they were planning separately or together. The parents were vague and would not confirm their plan. The father commented that things had gotten "messed up".

[27] However, on October 24, 2017 the mother served her affidavit which included a plan for N.H. which involved physically separating from the father.

[28] In submissions, mother's counsel asked for the society to commit to arranging separate access for the mother which as society counsel pointed out had already been offered and rejected by the parents.

[29] In submissions, duty counsel on behalf of the father, clarified that the parents were not separating but would make any arrangements to live separate if that could result in N.H. being placed in the care of either of them.

Society's Plan

[30] The kin assessment of P.H., N.H.'s current caregiver has been approved. N.H. is being well cared for in that placement and it is the society's plan that he remain in that home.

Analysis on Placement Issue

[31] Based on the credible and trustworthy evidence with respect to the cause of the injuries to J.H. that resulted in his death, it is clear that N.H. cannot be returned to the care of his parents who were the pre-apprehension caregivers.

[32] Both children were regularly seen by their doctor and prior to July 27th there were no concerns about their well-being.

[33] The parents have not provided any explanation as to how those injuries could have occurred. Whether both or either one of them injured J.H. or whether they entrusted his care to someone else in that household who injured J.H. is not clear. However, without any explanation whatsoever and not even considering N.H.'s injuries, any child placed in their care would be at risk of physical harm.

[34] There is also credible and trustworthy evidence that the injuries to N.H. were most probably the result of inflicted trauma. Based on his injuries, without any explanation whatsoever, it is clear that N.H. would be at risk of harm if placed in either or both parent's care.

[35] Based on the lack of any explanation by the parents and the uncontroverted medical evidence as to the probable cause of the injuries to both J.H. and N.H., the evidence is overwhelming that terms of supervision would not be adequate to protect against the risk of harm to N.H. if placed with either or both of his parents.

[36] It is unfortunate that parents under police investigation continue to be given advice from their criminal counsel not to discuss with the society the circumstances that led to the injuries of children. This type of advice impedes the society from working with the parents to address their parenting deficiencies and work with the parents to improve their parenting skills so that that the likelihood of future injuries to any child in the parents' care is diminished. Any statements made to the society workers or affidavits filed by the parents in these proceedings cannot be accessed by the police in criminal proceedings as the child protection file is sealed. Therefore it would be to the parents' benefit to openly and honestly discuss the issues so that assistance could be provided and all parties could work co-operatively on a possible reunification plan.

[37] Having found that N.H. cannot be returned to the parents' care even with terms of supervision, I agree with the society that the least disruptive placement would be to continue his placement with his paternal great-aunt P.H..

[38] The parents' plan is not only confusing but not in the child's best interests. There is no benefit to the child to be moved from the home where his needs are being met to be moved to the home of the paternal uncle. The parents' plan involves care of N.H. being entrusted to an uncle who has no prior experience caring for young children and who after taking a leave from work, would still rely on the paternal great-aunt to be the child's daycare provider.

[39] From the parents' perspective, the benefit to the plan would be if one or both of them would be permitted to move into the uncle's home. However, given the death of one child and injuries to another child, the risk of harm is too great to permit such an arrangement.

Evidence with Respect to Access

[40] The parents' access was initially twice per week for 1.5 hours each visit. This schedule was changed several times due to N.H.'s schedule, the parents' requests and due to the frequently changing medical situation with respect to J.H..

[41] Although the parents did not request any additional access with N.H., the society proposed increasing one of the visits to 3 hours as the parents were showing some difficulties in reading N.H.'s cues which was done on October 23, 2017. The society's hope was that in increasing the access with N.H. the parents would learn to anticipate his needs and do better with soothing him, reading his cues and building attachment. It was explained to the parents that longer periods of time would benefit N.H. if they wanted to parent him. The parents were requesting an additional visit in the week with less time each visit.

[42] The parents were observed to be affectionate and loving with N.H. but were also observed to have difficulties in settling him and provided conflicting information about N.H.'s routine and were unable to agree on next steps when caring for him.

[43] On November 13, 2017 the visits were then further increased to 3 hours twice a week and a family support worker, Antonella Dicinto, was assigned to support the access visits. The role of the family support worker was to observe, assess and teach the parents in the areas of relationship building, provision of structure and routine, positive parenting, child development and behaviour modification. The worker also provided teaching and instruction regarding instrumental tasks of child care.

[44] As of the hearing of the motion, the parents had attended 10 visits with Ms Dicinto. The parents were open to working with her and they had a good working relationship.

[45] Ms Dicinto reported that the parents were making slow but steady gains in their physical care of N.H. with her support. It is the plan of the society to continue with the family support program for the parents.

[46] Although the society's position was that all access was to be supervised by the society, the society agreed that Ms P.H. could supervise the parents' access to N.H. in the hospital in the last few days of J.H.'s life and around the time of his funeral. The society also agreed that the parents' could see N.H. at church on Sundays with Ms P.H. provided that she attends and provided the contact is limited to the length of the church service. However, despite clear instructions that access would not otherwise be permitted in Ms P.H.'s home the parents requested such access directly with Ms P.H.. The request was denied.

Analysis Regarding Access

[47] It is the position of the society that ongoing supervised access is required as there have been difficulties observed in the parents' interactions with N.H.. Although improvements have been recently noted this is a result of the ongoing support of the family support worker being present at those visits.

[48] There are concerns that the parents and in particular the mother has not been able to observe proper boundaries with Ms P.H.. I find that putting Ms P.H. in the position of supervising access would place an unnecessary burden on her and that it is properly the role of the society in these circumstances to determine the extent of the parents' access.

[49] The parents are seek additional access for alternate Saturdays from 9:00 a.m. to 2:00 p.m. during a child's church service that is led by Ms P.H.. In view of the necessity of a family support worker to assist the parents in 3 hour visits and the slow but steady progress being made, a professional needs to monitor and work with the parents to ensure that the child's needs are being met. Such an extended access visit that would not be fully supervised by a professional is not in the child's best interests.

[50] The parents need to appreciate that given the death of one child and injury to another child, the court and the society needs to be extremely caution before the parents will be permitted any extensive unsupervised access. At this stage, increasing access to the parents is not warranted.

[51] The society, despite the tragic circumstances of the death of J.H. and its position that N.H. cannot be placed in his parents' care, has been working with the parents and offering them intensive services to help them improve their parenting skills. I find the society can be entrusted to continue to monitor the parents' parenting capacity and if appropriate to increase their access and change the terms of supervision.

Evidence and Concerns with Respect to Medical Decisions Regarding N.H.

[52] The society did raise some concerns about the issue of medical decision making for N.H.. On September 21, 2017, at a scheduled urology appointment for N.H. which the parents also attended, Ms Rose-Hurst and Ms P.H., learnt for the first time that there was extensive genetic testing being done on N.H. as the team was inquiring about gender identity and also chromosome abnormalities. Ms P.H. had never been advised about these medical issues.

[53] The mother was signing consents for the hospital and had to be told that Ms P.H. was to sign all consents as she was N.H.'s caregiver, his guardian and the decision-maker. The mother indicated that she would be going to court about this issue.

[54] In further medical appointments, the society has noted that Ms P.H. has sat back and let the mother take charge. The mother deposed that she wanted the society worker not to be present for further medical attendances which continues to indicate that she has not understood or accepted that Ms P.H. is the child's decision maker and the mother no longer has the right to make medical decisions with respect to N.H..

[55] I find that further terms of supervision are needed to clarify for Ms P.H. and the parents that until further court order it is Ms P.H. who has the responsibility of making decisions with respect to N.H.. The society has always advised the parents of and permitted them to be present at medical appointments with respect to N.H. with the exception of an appointment with respect to review of information related to N.H.'s brain bleed. The society is permitted to continue to permit the parents' to be present at further medical appointments. However, the parents need to understand and accept that Ms P.H. is the primary caregiver and her authority must not be undermined.

Conclusion

[56] I find that the society has met its burden in proving that the least restrictive alternative for N.H. is that he remain in the temporary care and custody of his paternal great-aunt with access to the parents in the discretion of the society.

[57] The society will be preparing a draft Statement of Agreed Facts with respect to a finding of need of protection. I am hopefully that the parents on the return date can agree with such a finding based on the overwhelming evidence with respect to the injuries to both of their children and the death of J.H.. If not, the case should proceed with no further delays. With respect to disposition, if the parents are not prepared to agree to N.H. remaining in the care of the paternal great-aunt for six months that issue should also proceed without further delay.

[58] Order as follows:

Order

1. Pursuant to section 51(2) of the Child and Family Services Act, the child N.H., born on […], 2017, shall be placed in the temporary care and custody of the paternal great-aunt P.H. subject to the supervision of Children's Aid Society of Toronto on the following conditions:

a) The parents B.H. and A.T.F.H., shall not have unsupervised access to the child, unless otherwise approved by the Children's Aid Society of Toronto;

b) The parents shall not reside in the home of P.H.;

c) The parents shall not attend at any place where the child is unless pre-approved by the Children's Aid Society of Toronto; and

d) On consent, the mother shall sign consents for the Children's Aid Society of Toronto to communicate with medical and mental health professionals including her family doctor and therapist or counsellor.

2. Access to the parents shall be at the discretion of the Children's Aid Society of Toronto including location, duration, time, frequency and level of supervision.

3. At the discretion of the Children's Aid Society of Toronto, the parents will be permitted to attend any medical appointments with respect to N.H., that do not involve an investigation or review of his injuries for forensic purposes, if they are able to respect the authority of P.H. to make all medical decisions regarding the child.

4. Counsel for the Children's Aid Society of Toronto will prepare this Order promptly. The approval of the father as to form and content is dispensed with.

5. Counsel for the Children's Aid Society of Toronto will circulate a draft Statement of Agreed Facts by December 18, 2017.

6. The time for the parents to serve and file their Answers and Plans of Care is extended to January 12, 2018. No further extensions will be granted.

7. The matter is adjourned to January 24, 2018 for a settlement conference. Counsel should be prepared to discuss a timetable for next steps for a finding and disposition hearing if there is no consent.

December 18, 2017

Signed: Justice Roselyn Zisman

Footnotes

[1] Ms Taerk objected to the filing of the affidavit unless a few paragraphs that dealt with other matters were deleted which was consented to by society counsel. Ms Taerk was also permitted to file a letter she sent to the society with respect to a request for expanded access.

[2] Children's Aid Society of Ottawa-Carleton v. T., [2000] O.J. No. 2273 (SCJ).

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

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

[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] 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.