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: April 4, 2018
Court File No.: Toronto CFO 17 15901
Parties
Between:
Native Child and Family Services of Toronto Applicant,
— AND —
L.J. and D.S. Respondents
— AND —
Six Nations of the Grand River Respondents
Before the Court
Before: Justice E.B. Murray
Motion heard on: March 28, 2018
Reasons for Decision released on: April 4, 2018
Counsel
- Ms. Adit Sommer-Waisglass — counsel for the applicant society
- Ms. Sharon Worthman — counsel for the respondent, L.J.
- Mr. Lance Carey Talbot — counsel for the respondent, D.S.
- Ms. Jennifer Johnson — representative for Six Nations of the Grand River
Decision
MURRAY, E.B. J.:
Overview
[1] This is my decision about whether "Charles", born […], 2015, "Thomas", born […], 2017, and "Charlotte", born […], 2017 shall be returned to their parents L.J. and D.S on a temporary basis. I deal with Charles and Thomas separately from Charlotte because of the differences in their circumstances, which will become clear below. For reasons that follow, my decision is that Charles and Thomas will be returned to their parents pursuant to Society supervision and the conditions set out, and that Charlotte shall remain in the temporary care of the Society.
Background
[2] Charles and Thomas came into the Society's care on […], 2017 (immediately after Thomas's birth) on a voluntary care agreement. Charles had previously been in care from his birth to September 30, 2015, when he was returned to his parents. The protection concerns when Charles came into care were multiple: for D.S., a history which resulted in an older child not being in his care, with concerns related to domestic violence, neglect, transience, and struggles with mental health; for L.J., a lack of pre-natal care, struggles with mental health, and a failure to take her medication.
[3] After Charles was returned, the parents continued to work with the Society. L.J. was assisted by a Ninoshe and a pre-natal worker when she became pregnant with Thomas. However, by the time Thomas was born, the Society had renewed protection concerns. Society workers attending at the home on April 21, 2017 found it to be filthy, with few supplies for the new baby, and containing two unsecured pythons.
[4] The Society believed that the children were unsafe in the home unless changes were made. This led to the parents entering into the voluntary care agreement for 35 days that was extended on May 25, 2017 for 4 months.
[5] On September 8, 2017 L.J. gave notice on behalf of herself and D.S. that she wished to terminate the agreement. The Society commenced a protection application on September 15, 2017. A temporary without prejudice order placing the children in Society care was made on September 15, 2017.
[6] Early on the Society advised the court that it intended to return the children to their parents after more work was completed, aiming at a return by Christmas. The Society offered intensive support from a worker, a Ninoshe, and a Zishay. It provided significant financial support. Over the next 3 months the case was adjourned while the reunification plan was pursued.
[7] On […], 2017 the case came before the court on a conference. Overnight access had begun. The Society advised that it needed more time to work with the parents and to assess whether they were ready to have the children with them. Parents' counsel advised that they wished to schedule a motion for return of the children which could proceed in the event that the Society was not ready to support a return in January. A motion was scheduled for January 23, 2018.
[8] L.J. was not in court on […]. She was giving birth to Charlotte. Charlotte was 3 months premature. L.J. and D.S. had not advised the Society that L.J. was pregnant. At the appearance on […] neither the Society nor the court was advised of Charlotte's birth. It is unclear whether L.J. did not know she was pregnant prior to the child's birth or whether L.J. and D.S. concealed the pregnancy from the Society.
[9] D.S. brought a motion returnable January 23, 2018 seeking the return of Charles and Thomas. The Society increased the time that the children were spending with the parents to 3 days/4 nights weekly, in an effort to assess whether the parents could manage full-time care of the children. An adjournment was granted for the Society to file further material.
[10] The hospital advised that Charlotte was ready to be released on March 1, 2018. The Society apprehended the child in hospital. On March 6, 2018 the Society served an amended application seeking Crown wardship for Charles and Thomas and 6 months Society wardship for Charlotte. The Society stated in its Amended Application that it had "come to the realization that despite their best efforts, Ms. L.S. and Mr. D.S. have been unable to achieve the level of skill necessary to plan and care for Charles and Thomas in a manner that is safe and able to meet their needs". A motion asking that Charlotte be kept in temporary Society care was served.
[11] L.J. identifies as a member of the Six Nations of the Grand River Native Community. The Band was served in September 2017, and originally declined to be involved. However, on March 27, 2018 the Band served an Answer asking that the court make a customary care agreement that would allow a "collaborative relationship between (the Society), the Respondent Mother and Father and the Six Nations Band Representative".
Test to be Applied on Motion
[12] D.S.'s motion and the Society's motion with respect to Charlotte came before me on March 28, 2018. At that time, the parents advised that they viewed the date as a return of the Society's original temporary care motion, a motion that should be disposed of based on the test in s. 51(2) and (3) of the Act. Society counsel advised that she had conceived of the motion as D.S.'s motion to vary the September 15, 2017 order, but she was in agreement that it be argued based on the s. 51(2) and (3) test.
[13] Despite the fact that the motion is being argued 6 months after the September 2017 order placing the children in Society care and almost 11 months since the children came into care, I conclude that the proper test to be applied is that set out at s. 51(2) and (3) of the Act. I am aware of the argument that some without prejudice orders might be seen to acquire a "with prejudice" status because of "dwindling shelf life". I am also conscious of the necessity to be cautious in removing from parents the protections contained in S. 51 of the Act, addressed by J. Sherr below:
The test in subsection 51 (2) is designed to set up a rigorous standard for society intervention in the life of a person who has charge of a child. Once this test has been met, and an order placing the child elsewhere has been made, the onus shifts to that person to show, in a subsequent motion brought pursuant to subsection 51 (6) of the Act, to demonstrate a sufficient change in circumstances that justifies returning a child to his or her care. The court does not and should not lightly eliminate the subsection 51 (2) rights of the person who had charge of the child.
[14] In this case, L.J. and D.S. signed the voluntary care agreement and an agreement to extend without having the benefit of independent legal advice as to the implications of the agreements. When they received such advice, they promptly gave notice to terminate. They never agreed, implicitly or explicitly, to waive their rights to participate in a temporary care hearing. At the […] attendance they asserted their right to argue, if need be, the issue of the children's temporary care.
[15] Section 51(2) and (3) provide that a child shall be returned to the person who had charge of him immediately before Society intervention unless there are protection risks that cannot be managed by a supervision order. The onus is on the Society to demonstrate that there are risks which cannot be managed by a supervision order.
Analysis of Risks
[16] All parties concede that there are risks of harm to these children in their parents' care. The parents say those risks can be managed by a supervision order, and the Band supports this position. The Society prepared a list of possible conditions for an order, which I set out in Schedule A to this decision. The Society says that the parents, although having good intentions, are not capable of complying. The parents say that they can.
[17] I turn to a consideration of the risks to the children in parents' care, and any progress they have made in dealing with those risks in the past 11 months. This is not a case in which risk is alleged because of domestic violence or substance abuse or, at this point, mental illness which affects parenting ability. The Society says that the parents are simply unable to manage aspects of daily life—providing food and other supplies, a routine for the children, getting the children to necessary appointments—despite intensive support over the past 11 months. The Society also says that the parents are unable to give the children the social/emotional support needed for proper development. The parents disagree.
[18] I start by saying that I prefer the evidence of Society workers to that of the parents on issues such as the amount of food in the house on any given day or the particulars of the parents' interaction with the children. Society workers had no bias in the case; the Society had committed itself to work for reunification, and that is the plan that workers were trying to support. Society workers kept detailed notes of their observations of parents with the children, and their conversations with parents.
[19] Society counsel submits that the parents have since the commencement of the case "barely managed" to care for the children adequately, despite intensive Society support.
On numerous occasions on which the parents had the children in their care on visits, Society workers have found that the parents had very little food in the home. On one recent occasion, L.J. admitted that the parents had neglected to buy formula for Thomas because of a shortage of funds. The child was without formula for several days (this was in late February, 2018). The parents did not ask the Society for further food vouchers. This was at a time when the parents were spending over $100 monthly for food for D.S.'s menagerie—python, rat, dog, cat—and when funds were spent on beer for D.S.
There remain risks to the children from animals in the home. D.S. intends to keep his python. He says that he will keep the snake caged, and not allow the children in the bedroom which he and L.J. share.
Charles and Thomas will be a handful to manage. Charles is very active, and largely non-verbal. He is receiving speech/language therapy. Both Charles and Thomas are undergoing developmental assessments.
D.S. does not plan to parent full-time. Until shortly before the argument of the motion, he intended to return to work full time. At the motion he said that he would be attending school. No details of the schedule or duration for the program were given.
This means that L.J. will be the primary caregiver for two, or, if Charlotte is returned, 3 children under 2 ½ years of age.
L.J. and D.S. have no supports from family or friends. Their only supports are from the Society. At the hearing of the motion a Band representative indicated that the Band would supply what support they could, but no particulars of that support were available.
The parents neglected to deal with issues necessary to have the children placed with them until the 11th hour. D.S. resisted a placement in daycare overseen by the Society, but did not pursue another placement. Daycare spots for the boys were arranged only days before the motion was heard, and then only because of Society intervention. The parents neglected to diligently pursue avenues that would supplement their income. Some funds were identified only days before the hearing. This procrastination does not augur well for their ability to deal with future practical problems.
The parents were requested for weeks to prepare a budget setting out how they would provide the necessities with the funds available to them. The worker offered to help. D.S. took the position that this was unnecessary—that when the children were placed with them, they would have plenty of money.
[20] I accept Society counsel's submission that the parents have "barely managed" to care for the children with Society supervision. What that means to me, however, is that if the Society continues the intensive supervision already in place (which involves attendance at the home by the worker once a week, and by the Ninoshe and Zishay once a week or more), the immediate risks faced by Charles and Thomas can be managed by a supervision order. By immediate risks, I mean the risk that they will not receive proper nutrition or rest, that they will be injured because of animals in the home or otherwise, and that they will not be taken to required medical or other appointments.
[21] There are other risks that it appears Charles and Thomas may face in their parents' care that will not be addressed by Society supervision. Society workers' observations suggest that although the parents provide instrumental care, they otherwise do not play or otherwise interact with the children, despite the work they have done with the Ninoshe and Zishay to encourage this type of interaction.
With Thomas, L.J. is candid that she does not feel a connection to him. She provides instrumental care, but otherwise is content to leave him and interact with Charles. Although D.S. claims a closer connection with Thomas, workers did not observe this connection. At the foster home Thomas interacts well with the foster mother, and is affectionate with her.
With Charles, workers observe that the child is continually moving around the room and won't sit still for meals; he grabs a piece of food and moves around. The parents are unable to help him focus on any activity. After meeting his instrumental needs, they do not play with him or do an activity with him. At the foster home, Charles, with the support of the foster parent, is more focused. He will sit and eat. He will remain calm while watching a favorite program on TV.
[22] The Society suggests that the parents are unable to adequately support the children's social/intellectual development. If Society concerns are well-founded, this is a significant risk for the children, who are at a critical stage for development.
[23] I appreciate that the parents dispute the Society's characterization of their relationship with the children. I am unwilling to find on the evidence before me, without cross-examination and a fuller record, that the children are at risk of harm because of the parent's inability to support their development in this respect.
Orders Regarding Charles and Thomas
[24] I order that Charles and Thomas be placed in the temporary care of their parents pursuant to Society supervision and the conditions contained in Schedule A to this order. I add a further condition: that within 10 days L.J. and D.S. prepare a budget setting out specifically how they plan to meet necessary expenses from the income which they will have. The Society worker shall assist them in creating the budget.
[25] Charles and Thomas are very young. Thomas has been in Society care for 11 months, just a month short of the statutory limit. Taking into account his earlier time in care, Charles has been in care for a time that exceeds that limit. The children are now being temporarily returned to their parents' care. They deserve a process in which they are settled in a permanent home, wherever that may be. In my view, the Society should work to take this matter to trial as soon as possible. I vacate the previously scheduled return date of this case, and order that the matter return before me on April 10, 2018 at 10 a.m. for a settlement/trial management conference. Briefs with witness lists shall be served, and may be filed at any time or walked in to court that day.
Order Regarding Charlotte
[26] Charlotte is fragile and requires a great deal of care. I am not persuaded that L.J. and D.S. are able to give her the care required on a full-time basis, while managing the care of Charles and Thomas. I do not find that conditions could be imposed that would keep her safe at the present time. I place Charlotte in the temporary care of the Society.
[27] Access between the parents and Charlotte shall be at the Society's discretion with respect to supervision, duration and frequency. On at least one visit each week, L.J. and D.S. shall bring Charles and Thomas to Society offices to allow the Society opportunity to assess their ability to manage all three children.
Released: April 4, 2018
Signed: Justice E.B. Murray
Schedule A
Proposed Terms of Temporary Supervision Order re L.J./D.S. Children
L.J. and D.S. shall:
Cooperate with Native Child and Family Services of Toronto, meeting with workers as requested, and permitting access to their home for scheduled and unscheduled visits.
Permit Native Child and Family Services of Toronto workers to visit with the children at home, at school/daycare, and in the absence of a parent if so requested.
Charles and Thomas shall immediately be registered for daycare, full time, at Native Child and Family Services of Toronto's Scarborough location or such other location. The children shall attend regularly [to ensure subsidy is maintained].
Ensure that all the children's regular and special medical needs are attended to in a timely manner, and that recommendations made for further assessment or treatment are followed.
Ensure that any developmental assessments underway for the boys are completed, and that the recommendations for further services [if any] are followed. [Including a transfer to local services from the Peel Children's Centre].
Ensure the home is maintained clean and organized, and with age-appropriate safety in mind.
Ensure that the children are enrolled on Ms. J.'s ODSP benefits and that application is made for the federal child tax benefit.
Continue to work with Native Child and Family Services of Toronto Ninoshe/Zishay to learn and understand the developmental needs of children through their ages and stages. Parents may also choose to attend parenting programs at Native Child or in the community.
Ensure that they have adequate food and children's supplies on hand at all times [including items such as diapers, wipes, medicine like infant Tylenol, medical supplies like a thermometer].
No child is to sleep in the same room as the python; all animals in the home to be properly secured.
No parent to be under the influence of drugs or alcohol while parenting.
Native Child and Family Services of Toronto shall approve of any alternate caregivers/babysitters in advance.
Ms. J. shall ensure that she continues to receive appropriate post-natal medical care.
Execute such consents as may be necessary to permit the release and sharing of information between Native Child and Family Services of Toronto and any service provider to any child or adult in the family.