WARNING

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

This is a case under Part V of the Child, Youth and Family Services Act, 2017 (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:

87.— (7) Order excluding media representatives or prohibiting publication.

Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, 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, the court may make an order:

(c) prohibiting the publication of a report of the hearing or a specified part of the hearing.

87.— (8) Prohibition re 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.

87.— (9) Prohibition re identifying person charged.

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.

142.— (3) Offences re publication.

A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(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: 2018-05-15

Court File No.: Brampton 17-20084

Between:

The Children's Aid Society of the Region of Peel, Applicant

— AND —

C.S., Respondent/Mother

A.B., Respondent/Father

Before: Justice Lise S. Parent

Heard on: May 8, 2018

Reasons for Judgment released on: May 15, 2018

Counsel

E. Hidalgo-Simpson — counsel for the applicant society

C.S. — on her own behalf

Adrian Baker — counsel for the respondent/father

PARENT J.:

Proceeding Before the Court

[1] This is a care and custody motion in respect of the child, Z.S., born […], 2017.

[2] The Society seeks an order placing Z.S. in their temporary care with access between Z.S. and family members to be at their discretion as to location, duration, frequency and level of supervision.

[3] The Society seeks this order pending the determination of their Amended Protection Application, filed on December 6th, 2017 seeking an order of Crown Wardship pursuant to section 57(1)(3) of the Child and Family Services Act, R.S.O. 1990, c.C.11., as am. ("CFSA").

[4] Given the proclamation on April 30th, 2018 of the Child, Youth and Family Services Act, 2017 S.O. 2017, c.14, Sch. 1 ("CYFSA") and the transition provisions, the order requested by the Society is now an order for extended society care pursuant to section 101(1)(3) of the CYFSA.

[5] Z.S. was apprehended from the care of the Respondent/mother two days after birth, namely on […], 2017. Z.S. was taken into the care of the Society following her discharge from hospital. Z.S. has therefore never been in the care of the Respondent/mother.

[6] Z.S. has remained in the care and custody of the Society, pursuant to a temporary without prejudice order granted by Dunn, J. on June 26th, 2017. This order also provides that access between Z.S. and family members be at the Society's discretion as to location, duration, frequency and level of supervision.

Position and Evidence of the Society

[7] Counsel for the Society submits that the taking into care of Z.S. was due to concerns about the Respondent/mother's mental health issues, ability to parent, transiency and prior involvement with child protection agencies.

[8] The Protection Application filed by the Society on June 23rd, 2017, sought an order of six (6) month society wardship with access at the discretion of the Society. The Society, in support of this order, filed the affidavit of the involved child protection worker, Ms. Manjeet Bedi. This affidavit is sworn June 22nd, 2017 and is located at Tab 2, Volume 1 of the Continuing Record.

[9] A review of this affidavit provides details of the Society's concerns to be as follows:

(i) Regarding the Respondent/mother:

Mental health issues, transiency, ability to parent, inconsistency of access with another child than Z.S. in care, a volatile relationship with Z.S.'s father, behaviour exhibited for the purpose of obtaining medication, and distrust towards Society workers.

(ii) Regarding the Respondent/father:

The existence of a volatile relationship with the Respondent/mother, transiency, aggressive behaviours and use of drugs.

[10] The affidavit of Ms. Bedi also outlines positive behaviour regarding the Respondent/mother, namely a willingness to parent her child and to work with supportive resources.

[11] On April 17th, 2018, the Society filed an affidavit sworn by Ms. Celistine Frampton, the child protection worker involved with Z.S. since August 10th, 2017. This affidavit is located at Tab 1, Volume 3 of the Continuing Record.

[12] A review of this affidavit details the evidence supporting the Society's ongoing concerns which can be summarized as follows:

(i) Regarding the Respondent/mother:

Ongoing mental health issues, her lack of insight into her mental health issues and how these issues impact her parenting ability, poor judgment, an unstable lifestyle, an absence of stability for a prolonged period of time, inability or unwillingness to be forthright with Society workers and other professionals, a failure to attend access visits, the fluid nature of her relationship with the Respondent/father, the volatility of this relationship, disclosure by the Respondent/mother of arguing and verbal abuse in this relationship, periods of times when the Respondent/mother displays disrespectful and/or aggressive behaviour towards Society workers, reports of drug use, her residing in an unhygienic and overcrowded home and her pregnancy with her third child.

(ii) Regarding the Respondent/father:

Ongoing use of drugs, a denial of his relationship with the Respondent/mother including a denial of any verbal abuse and/or periods of conflict, concerns regarding prior suicidal thoughts, self-reported constant physical pain and his clear indication that he is not able to present a plan to care for Z.S.

[13] The Society has attached to the affidavit of Ms. Frampton, as Exhibit A, the discharge summary dated December 1st, 2017 of the Therapeutic Access and Assessment Program (TAAP). This summary states at page 10 as follows:

"[Respondent/mother's] parenting session within the therapeutic home were overall positive. She presented with several strengths, including the ability to be attuned, attentive, responsive and comforting when she was not preoccupied by external factors and her mental health was stable. She exhibited a strong desire to bond with her [child] which was evident through her willingness to engage and tend to her in a nurturing manner.

However, the worry is that the [Respondent/mother] has limited ability to understand how her parenting and caregiving behaviours are influenced by her mental health and emotional state, and the potential negative impact that it has on [Z.S.] As the sessions progressed, the [Respondent/mother] identified several external factors that seemed to impact her ability to be completely present and available to [Z.S.], as she often became preoccupied with these external stressors, such as her anxiety, housing, and relationships.

The [Respondent/mother] has survived several years of trauma from her childhood which undoubtedly is the reasons she has created a strong desire to provide [Z.S.] different parenting than she received growing up. She has discussed participating in several years of psychotherapy, however she presents as somebody with unresolved trauma. The [Respondent/mother] seems to have difficulty forming healthy relationships, suffers from panic attacks, and has innate belief that she is bad and that she is a failure which all will impact her ability to be emotionally available to [Z.S.]

Next Steps:

In conclusion with the service team, a modified access plan was created to extend the [Respondent/mother's] access with the support of Child and Youth Support Worker, who will continue providing her with teachings and coaching as it pertains to her parenting of [Z.S.] It is vital to continue these sessions in the community such as in a nearby Early Years Centre. This will continue to support the [Respondent/mother] in engaging in activities that will promote [Z.S.'s] healthy development, as well as encourage the [Respondent/mother] to network with other parents who could be a positive support for her.

It is recommended that the [Respondent/mother] participate in Trauma Counselling and/or Cognitive Behavioural Therapy to address her historical trauma, and understand the impact her negative internal dialogue has on her ability to be self-confident, and on her overall parenting of [Z.S.]

The [Respondent/mother] may also benefit from participating in the Family Addiction Service monthly sessions at CAMH, or her local Nar-Anon groups to gain a better understanding of her partner's drug use and its impact on herself and her [child.]

[14] The Society has also attached as Exhibits "C" and "D" decisions of the Child Protection proceedings involving another child of these Respondent/parents.

[15] The Society relies on these decisions, namely a decision dated December 1st, 2017 dismissing the Society's motion for summary judgment and a decision dated February 27th, 2018 granting an order for Crown Wardship, in support of its concerns regarding the Respondents regarding their ability to parent Z.S.

[16] In the affidavit of Ms. Frampton, sworn May 7th, 2018, located at Tab 3, Volume 3 of the Continuing Record, she indicates, in response to the Respondent/mother's affidavit filed in support of her seeking an order placing Z.S. in her care, as follows:

(i) On a recent visit on April 17th, 2018, the Respondent/mother was unaware as to what food she was feeding Z.S. Also the food, appeared to Ms. Frampton, to be not age and developmentally appropriate for Z.S.

(ii) During this same visit, the Respondent/mother did not provide any liquids to Z.S.

(iii) The Respondent/mother is currently not attending counselling and/or therapy.

(iv) Inquiries with the Public Health Nurse regarding their ability to assist the Respondent/mother resulted in this resource indicating that, in their view, the Respondent/mother requires more intense therapy and involvement that they can provide.

(v) That on April 20th, 2018, the Respondent/mother refused to sign consents so as to allow the Society to speak to the involved resources she has identified as assisting with her mental health, treatment plan and parenting skills.

(vi) That the Respondent/mother's roommate, who she has identified as being a support for the care of Z.S., has prior child protection involvement.

(vii) That the Respondent/mother has not attended at her access visits since April 20th, 2018 and this despite the visits being moved to Brampton following the Respondent/mother's move to this jurisdiction.

[17] The Society submits that the initial and continued existence of their concerns, which have not lessened even with resources being made available to the Respondent/mother such as TAAP, supports their request for an order placing Z.S. in the interim care of the Society with access at their discretion.

Position of the Respondent/Father, A.B.

[18] Counsel for the Respondent/father confirmed in his opening remarks that his client has not filed any materials in this motion. Counsel confirms that the Respondent/father is not taking a position at this motion.

[19] Counsel confirms however, that his client wishes to state that should Z.S. be placed in the extended care of the Society, as requested in the Amended Application before the court, he wishes the child to be placed with a sibling who was made a Crown Ward in February 2018 and is currently cared for permanently within a kin placement.

Position and Evidence of the Respondent/Mother, C.S.

[20] The Respondent/mother has filed an affidavit sworn April 30th, 2018. This affidavit is located at Tab 2, Volume 3 of the Continuing Record.

[21] The Respondent/mother seeks an order placing Z.S. in her care and control. She indicates that she is prepared to accept and respect any conditions attached with this placement should this order be granted.

[22] The Respondent/mother submits that she is prepared and able to resume care of her child. She submits that:

(i) She has been working very hard on her mental health issues.

(ii) She has provided a letter from her psychiatrist saying that she is stable.

(iii) She has secured new accommodations which are appropriate for her child.

(iv) Z.S. would be safe in her care as she has the support of her friend, whom she lives with, to care for Z.S.

(v) She has concerns regarding the care Z.S. is receiving while she is in the care of the Society as she is constantly ill.

(vi) She has demonstrated her willingness to work with Society workers and will continue to do so.

(vii) She has become more trusting of the Society workers since the beginning of this year and this is why she disclosed to them her current pregnancy.

(viii) She has demonstrated her ability to be stable as she resided in her prior home for over one (1) year.

(ix) The court decisions regarding her other child are not relevant to Z.S.

[23] The Respondent/mother submits that she has complied with all the requirements of the Society. She submits that the Society has no concerns regarding her parenting abilities and that her mental health issues are being addressed.

[24] The Respondent/mother also submits that her access visits with Z.S. has been going very well. She submits that she does not understand why these visits have been reduced and will now occur in the Society's office and not in the community.

[25] Given this evidence, the Respondent/mother submits that Z.S should be returned to her temporary and permanent care.

Legislative Framework

[26] The Child, Youth and Family Services Act, 2017 ("CYFSA") was proclaimed into force on April 30th, 2018.

[27] Section 94(2) provides as follows:

Custody during adjournment

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

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

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

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

(d) remain or be placed in the care and custody of the society, but not be placed in a place of temporary detention, of open or of secure custody.

[28] Section 94(2) places the onus of proof on the Society to establish, on credible and trustworthy evidence, that there are reasonable grounds to believe that there is a real possibility that, if Z.S. is returned to the care of the Respondent/mother, it is more probable than not that Z.S. will suffer harm.

[29] Section 94(2) also places the onus of proof on the Society to establish that Z.S. cannot be adequately protected by any conditions attached to an order returning her to the care of the Respondent/mother.

[30] In summary, section 94 requires a two-part test to be met prior to the Society's request for an order placing Z.S. in their temporary care can be granted.

Analysis

[31] I am being presented with two plans at this stage of the proceedings, namely the continuation of Z.S in the care of the Society or the return of Z.S. to the Respondent/mother, subject to the Society's supervision and on such reasonable terms and conditions which are appropriate in these circumstances.

[32] Neither the Respondent/mother nor the Respondent/father has submitted a plan whereby Z.S. could be cared for by a relative, a member of the extended family or community on a temporary basis.

[33] After a review of the evidence presented and upon hearing submissions from all parties, I am granting the Society's motion for the following reasons.

[34] The Respondent/father acknowledges that he is unable to present a plan for Z.S. at this time.

[35] The evidence of the Society overwhelmingly details historic and ongoing concerns regarding the Respondent/mother's:

(i) mental health issues and treatment plan;

(ii) an inability to obtain and maintain safe, appropriate and clean accommodations;

(iii) a conscious decision by the Respondent/mother to be co-operative and transparent with the Society and other involved professionals only when it suits her goals and not in response to any concerns being raised to her by these resource providers;

(iv) an inability to achieve and maintain appropriate parenting skills;

(v) an inability to gather insight into her mental health and parenting challenges; and

(vi) an inability to gather insight as to how her mental health and parenting challenges affect her ability to care for Z.S. in a safe and appropriate manner.

[36] In order for me to conclude that a child could be adequately protected if returned to the care of a parent with conditions and terms as supervised by the Society, I must be satisfied that these conditions will be adhered to in a meaningful manner.

[37] At present, the evidence before me is that the Respondent/mother continues to present challenging behaviours. Furthermore, the evidence supports ongoing genuine concerns regarding the ability of the Respondent/mother to be able to properly care for Z.S.

[38] All of this evidence does not lead me to believe that, despite her assurances to me during the hearing, the Respondent/mother is willing and/or able to follow any conditions or terms I could impose within an order placing Z.S. in her care under the Society's supervision.

[39] On the evidence presented, I find that there are reasonable grounds to believe that should Z.S. be returned to the Respondent/mother's care, even with clear and precise terms and conditions, there is a real possibility that Z.S will suffer harm.

[40] I find that the evidence presented by the Society is credible and trustworthy and satisfies me that the Society has met its burden. Accordingly, the order requested by the Society is granted.

Order

[41] For the reasons stated above, the motion of the Society is granted on the following terms:

(i) the child, Z.S., born […], 2017, is placed in the interim care of the Children's Aid Society of the Region of Peel;

(ii) the child's, Z.S., born […], 2017, right of access to family members shall be at the discretion of the Children's Aid Society of the Region of Peel, as to location, duration, frequency and level of supervision;

(iii) the approval of this order by unrepresented parties is waived; and

(iv) the matter will proceed, as scheduled, to a settlement conference on June 18th, 2018 at 2:15 p.m. in Courtroom #208 in accordance with my endorsement dated May 8th, 2018.

Released: May 15, 2018

Justice L. S. Parent