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: 2018-10-09

Court File No.: Toronto CFO-18-15766-00 A3

Between:

Children's Aid Society of Toronto Applicant

— AND —

T.L. Respondent

— AND —

S.R. Respondent

Before: Justice Alex Finlayson

Heard on: October 3, 2018

Endorsement released on: October 9, 2018

Counsel:

• Lily Ng — counsel for the applicant society
• Tammy Law — counsel for the respondent, T.L.
• Julie Ralhan — counsel for the respondent, S.R.

ALEX FINLAYSON J.:

PART I: NATURE OF THIS MOTION

[1] The Applicant is the Children's Aid Society of Toronto (the "Society"). The respondent, T.L. is the mother and the respondent, S.R. is the father of a 2 month old infant named S. R-L., born in 2018. Until recently, the parents lived in Niagara on the Lake, although the child was born at St. Michael's Hospital in Toronto.

[2] On August 20, 2018, child protection worker, Kadiga Hammuda, from the Children's Aid Society of the Niagara Region (the "Niagara Society"), attended at St. Michael's Hospital with Children's Aid Society of Toronto worker, Karen Clarke and took S. R-L. to a place of safety. As I will explain, their protection concerns centered around the parents' mental health and allegations of substance misuse.

[3] The child's maternal grandmother is O.L. She also lives in Toronto. O.L. is an integral part of the parents' plan.

[4] The parents' plan is that the child should be placed in the joint care and custody of the mother and the grandmother on various terms and conditions. The mother says she will live with the grandmother, who will work from home three days per week for the first month, and then two days per week thereafter. Otherwise, O.L. works nearby where she lives and can drop in during the day, as can another family member who lives nearby. The evidence before me is that O.L. has job security, a good working relationship with her employer and job flexibility that will enable her to do these things.

[5] This matter first came before me 4 days after the child was taken to a place of safety, on August 24, 2018, at which time I made a temporary without prejudice order placing the child in the temporary care and custody of the Society. I ordered access to the parents in the discretion of the Society and I adjourned the motion to afford the parents the opportunity to respond.

[6] On August 24, 2018, the Society further sought an order transferring this matter to the Family Court of the Superior Court of Justice in St. Catharines, Ontario, but the parents advised the Court that their plan was to move from Niagara on the Lake to Toronto, and so they sought an adjournment of the transfer issue also. As it was not consented to and potentially prejudicial to the parents, I declined to order the transfer. Instead, I directed the parties to come prepared to argue about the Court's jurisdiction at the return date.

[7] This motion returned before me on October 3, 2018. On that date, the Society advised that it had abandoned its request to transfer the file to St. Catharines. Then, at the outset of argument, the Society sought an adjournment. Counsel said that the Society recognizes the strength of the parents' plan, but said there should be a further period of time during which the Society could monitor the situation. The Society wanted access to remain in its direction, but with the intent to increase contact with the child if things went well. It also wanted to observe the grandmother, O.L. and the child together, given that she is a part of the parents' plan. For reasons I will deal with later in this judgment, the Society had not yet observed O.L. and the child together.

[8] The parents objected to the adjournment. In part, the mother is now living in Toronto with her mother and having access in Niagara (where the child is in care) is problematic from a logistics perspective. In any case, argument proceeded. At the end of argument, I directed the Society to make immediate arrangements for the Niagara Society to observe the grandmother and the child together.

[9] On the merits of the motion, the Society says that I should make an order placing the child in its temporary care and custody, with access to the parents in its discretion.

[10] By contrast, the parents ask that the child be returned. In anticipation of the baby's return, the mother and the grandmother have made preparations to their home. Moreover, as explained earlier, O.L. has made arrangements to work from home during portions of the week to be present to help out. The mother plans to take the child to community drop-in programs and is applying for subsidized day care. The mother will continue to work with her family doctor (I will explain the importance of this as a protective factor in more detail later in these reasons) and she is prepared to submit to ongoing urine drug screens.

[11] At this point, the father will not live with the mother given space constraints at the grandmother's house, but he would like to participate in parenting during the days with the mother, and he also intends to undergo an addiction assessment at CAMH. Otherwise, he is prepared to participate in programming as recommended by the Society.

[12] Alternatively, if S. R-L. is to remain in care, then the parents want expanded access, daily, and they say their access should be for full days in Toronto. Because the child is in foster care in the Niagara Region, the Society objects to this much access, mainly due to the impact it says will be visited on the child by transporting her back and forth between Toronto and Niagara. The Society wants fewer and shorter visits each week. In view of the ruling I intend to make, the Society's objection regarding access is moot.

[13] What follows is my judgment concerning the various issues raised at the temporary care and custody hearing. For reasons that I will explain, I am finding that the parents' plan adequately addresses the factors in the legislation and in particular, in section 94(2) of the Child, Youth and Family Services Act, 2017, SO 2017, c. 14, Schedule 1. I am ordering that S. R-L. be placed in the joint care and custody of the mother and maternal grandmother on various terms and conditions. I find the mother's plan contains adequate conditions that will protect S. R-L. within the meaning of the applicable test.

[14] The issues raised at the motion concerning the father are somewhat different. For reasons that I will explain, I am also making an access order with various terms and conditions to address the father's access.

PART II: BACKGROUND

A. Events Leading to the Child Being Taken to a Place of Safety

[15] The parents have been in a relationship together since March of 2016. Prior to the commencement of this proceeding, the parents used to live together in Oshawa. However, in 2017, the parties were involved in a car accident. As a result of some financial troubles that followed, in the fall of 2017, the parents stopped living together, and the mother went to live with her father in Niagara on the Lake. The father later moved to Niagara on the Lake in about April of 2018.

[16] The evidence before me is that the parents have a good relationship with one another. They have minor conflicts as is common in any relationship. The mother deposed that there has been no domestic violence and while she is aware of the father's mental health troubles (which I explain next), he has never been a danger to her, nor has she observed him to be a danger to anyone else. Although the parents do not currently live together, they are still in a relationship with each other.

[17] There is no serious dispute about the evidence regarding the nature of their relationship at this stage.

[18] Both parents have some difficulties with their mental health. The Society raises their respective health histories as a concern. There is some merit to the Society's concerns, but I intend to order various conditions to address the issues raised. Additionally, it has concerns about both parents' substance misuse.

[19] The mother has been diagnosed with Bi-Polar Disorder. She takes mood stabilizers and anti-depressants.

[20] She has also suffered from chronic pain for about 15 years and has taken prescription opiate medication to manage that pain over the years. She has been diagnosed with a mild opioid use disorder, but in the context of chronic pain disorder. Further, in 2015, she obtained a license for medical marijuana to help her manage the pain.

[21] The mother has been under the care of two doctors. Her family doctor is Dr. DeRocher, who works out of a clinic at St. Michael's Hospital. After the mother became pregnant, Dr. DeRocher referred the mother to Dr. Turner, also at St. Michael's Hospital. Dr. Turner specializes in combined addictions and obstetrical care to women with a current or a past history of addictions. Dr. Turner has managed the mother's pre-natal care.

[22] The father's doctor, Dr. Mbuyi, told the Society that the father suffers from depression and schizophrenia. To the Society, the father denied the schizophrenia diagnosis, believing that he had been diagnosed with Bi-Polar disorder. In his affidavit sworn September 21, 2018, however, he acknowledges both diagnoses. The father also admitted that in December of 2017, he was feeling depressed and attempted suicide by taking a number of pills and alcohol. He was hospitalized for 9 days. Based on some more recent urine testing he took in the summer of 2018, Dr. Mbuyi expressed a concern that the father was not compliant with his medication at that time.

[23] The parents' initial contact with the child welfare system occurred as a result of the mother's self-referral to the Niagara Society, after she became pregnant. Dr. Turner advised her to self-refer and she complied with Dr. Turner's advice. The Niagara Society then became involved with the parents during the mother's pregnancy. The mother did not have any prior history of involvement with a children's aid society.

[24] When the mother became pregnant, her pain medication was switched to suboxone, which is less harmful for the baby. The mother has taken urine screens as part of the management of her health care, given her opioid dependency, well before the time she became pregnant. I am told that these screens continued with greater frequency (i.e. weekly) during the pregnancy.

[25] On July 11, 2018, a hospital social worker telephoned the Society to report concerns that the mother "tested positive" on "several occasions". The evidence is that "several" means 3 occasions. Dr. Turner reported that the mother had a positive test prior to her pregnancy back in November 2017, and then two positive tests in late June and early July 2018. The mother agrees that she had three urine tests that were positive for cocaine.

[26] As a result of receiving this information, Ms. Hammuda spoke to both parents. The mother immediately provided an explanation for the positive tests to the Society, which I deal with later. She also readily admitted that she sometimes uses marijuana to manage her pain. When he was asked about his drug use, the father denied using narcotics, but admitted to recreational marijuana use.

[27] About one week later, the Niagara Society took the position that the father would have to be the child's primary caregiver after birth until the mother provided "clean drug screens for a consistent period of time". Ms. Hammuda did not specify what a "consistent period of time" should be. This continued to be the Society's position at the motion even though the mother has resumed testing negative for cocaine since the beginning of July.

[28] I note that by this point, the grandmother was prepared to have the parents live with her for a few months after the baby's birth, but it does not seem that this plan was really explored by the Niagara Society.

[29] Next, on July 27, 2018, Dr. Mbuyi reported to the Society that the father had a urine screen that tested positive for cocaine, and marijuana. The father immediately denied cocaine use. He explained that he takes certain medication for his depression that he thought had a common ingredient with cocaine. There is conflicting hearsay evidence in the record before me as to whether Dr. Mbuyi agreed or disagreed with the father. But later on, Dr. Mbuyi did provide letter setting out some information on this point, which I will come to.

[30] Regardless, after the father gave this oral explanation, Ms. Hammuda telephoned an unnamed "biochemist" at "Life Labs" in St. Catharines. She deposed that the biochemist told her that the father's explanation was not possible.

[31] Thereafter, the Niagara Society now said it would not approve the father as the primary care giver due to the concern about father's "drug use and mental wellbeing". And although the grandmother had come forward as a support person, the Niagara Society now expressed a concern she could not be a "primary caregiver", given her work hours.

[32] Following the child's birth, both parents stayed overnights in the hospital for three nights. Then, S. R-L. was moved to the Neo Natal Intensive Care Unit for about 20 days. The parents were no longer able to spend overnights with S. R-L. in the hospital, but they visited with her very regularly.

[33] The Niagara Society learned that the child would be discharged from the hospital during the week of August 20, 2018. At this motion, the mother presented a plan to live with her mother permanently. However, that was not the exact plan immediately following S. R-L.'s birth. Initially, she was only going to stay with her mother only temporarily. As I will explain, the Society questions the wisdom of that decision. But regardless, what is clear is that the mother had been trying to put a safety plan into place with the Niagara Society that involved her mother's support before the two Societies together attended at the hospital on August 20, 2018. Nevertheless, on August 16, 2018, the Niagara Society obtained a warrant and then S. R-L. was taken to a place of safety on August 20, 2018 as I set out above.

[34] S. R-L. has been placed in a foster home in the Niagara Region. This makes it more difficult to coordinate access given S. R-L.'s young age as the mother is now in Toronto living with her mother.

B. The Society's Protection Concerns

[35] The Society's protection concerns (as specified in the affidavit of child protection worker Karen Clarke sworn August 23, 2018) are:

(a) both parents' cocaine and marijuana use;

(b) both parents' mental health; and

(c) the concern that the father is not compliant with his medication that he must take to treat his mental health diagnosis.

[36] The Society also added three other arguments at the motion.

[37] First, it submitted that the mother has exhibited poor judgment by remaining at her father's house for as long as she did while pregnant (I will address this later in these reasons). Second, it argued that the parents' explanations respecting the positive urine tests lack credibility. For the Court to order supervision, the Society points out that there must be a relationship of trust between it and the parents. It says trust cannot exist if the parents are not truthful. And third, the Society said it has not yet observed the grandmother and O.L. together. But again, by the time of the motion, the mother's plan had been to go and stay with her mother upon discharge for quite some time, so it is somewhat surprising that this observation visit had not yet occurred.

[38] To some degree, the mother and the Society each blame each other for the delay regarding the lack of observation visit between the grandmother and S. R-L. I am unclear what exactly transpired on this point and I need not make any finding regarding it. When I asked the grandmother in Court if she was prepared to participate in an observed visit, she readily agreed to go. So as set out above, I directed the Society to immediately arrange for the Niagara Society to observe the grandmother and the child together.

[39] I ordered the observation to occur on Friday, October 5, 2018 at 2:00 pm.

PART III: LAW AND ANALYSIS

A. The Applicable Legal Tests on this Motion

(1) General Principles

[40] I begin with some general principles.

[41] While this motion is specifically governed by various provisions of section 94 of the CYFSA, of course the paramount purpose in section 1(1) of the CYFSA applies and it is to promote the best interests, protection and well-being of children.

[42] In deciding the issues raised on this motion, I also bear in mind the preamble to the CYFSA, and I consider the issues raised in the motion through the lens of the statutory purposes of the legislation set out in sections 1(1) and 1(2). In deciding what is in a child's best interest, various provisions in the CYFSA place an emphasis on family reunification, provided of course that it is safe and appropriate to do so. And I begin by considering the trite principle that the Society (and the Court) should take the least disruptive course of action to protect a child.

[43] I note that the maternal grandmother is a central part of the parents' plan. The involvement of extended family members in the lives of children and decisions affecting their well-being is recognized as one such way of achieving the goals of the CYFSA. Ontario, in enacting the current legislation, committed to the principle that children and families have better outcomes when services build on their strengths. The preamble to the CYFSA states that prevention services, early intervention services and community support services build on a family's strengths and are invaluable in reducing the need for more disruptive services and interventions.

[44] A number of the additional purposes in section 1(2) of the CYFSA militate in favour of family reunification at this time based on the record before me. For example, the additional purposes in section 1(2) include that the help provided should support the autonomy and integrity of the family unit, it is again stated that the least disruptive course of action that is available to help a child should be considered, services to children should be provided in a manner that respect a child's need for continuity of care and for stable relationships within a family, services should be provided in a manner that includes the participation of the parents and relatives and extended family, where appropriate, and services to children and their families should be provided in a manner that build on the strengths of the families, wherever possible.

[45] In summary, the preamble, the purposes of the CYFSA and the specific provisions of section 94, which I turn to next, lead me to the conclusion that the child should come out of care at this time on terms and conditions.

(2) The Specific Test At A Temporary Care and Custody Hearing

[46] Having first considered those general and interpretive principles, I turn to the specific statutory test that I must apply, which is set out in section 94 of the CYFSA.

[47] Sections 94(2), 94(4) and 94(10) of the CYFSA read:

Custody during adjournment

94(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.

Criteria

94(4) 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).

Evidence on adjournments

(10) For the purpose of this section, the court may admit and act on evidence that the court considers credible and trustworthy in the circumstances.

[48] It is well established that at a temporary care and custody hearing, there is a two part test that the Society must meet. First, the onus is on the Society to demonstrate, on credible and trustworthy evidence, that there are reasonable grounds to believe that there is a real possibility that if a child is returned to the person having charge of the child prior to the Society's intervention, it is more probable than not that the child will suffer harm. And 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. See Children's Aid Society of Ottawa-Carleton v. T., [2000] O.J. No. 2273 (S.C.J.).

[49] The Court must choose the order that is the least disruptive placement consistent with adequate protection of the child as required by subsection 1(2) of the CYFSA; see also Children's Aid Society of Hamilton v. B.D. and F.T.M., 2012 ONSC 2448. The degree of intrusiveness of the Society's intervention and the interim protection ordered by the Court should be proportional to the degree of risk. Catholic Children's Aid Society of Toronto v. J.O., 2012 ONCJ 269.

[50] In this case, the mother's plan includes the significant support of her mother regularly during the week, except when the mother has to be at work some of the time. As part of its assessment of proportionality and determining what the least intrusive option is, if the Court concludes that the child's return with or without conditions is insufficient to mitigate the degree of risk contemplated by section 94(4), then pursuant to section 94(5), the Court must first consider placement with a relative before placing a child in the temporary care of the Society.

[51] Section 94(5) reads:

Placement with relative, etc.

94(5) 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.

[52] Section 94(6) addresses the terms and conditions that may be imposed, either as part of a return to the parent or parents, or as part of a placement with the grandmother in this case.

[53] Section 94(6) reads:

Terms and conditions in order

94(6) 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's 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.

[54] And finally, section 94(11) of the CYFSA requires the Court to take into consideration the child's views and wishes, unless they cannot be ascertained, at a temporary care and custody hearing. Given the child's age, this section of the CYFSA is not applicable.

(3) The Test for Temporary Access

[55] The mother claims access to S. R-L. if this Court does not return the child to her and the grandmother's joint care and custody, and the father claims access regardless of the Court's decision about the temporary placement as he will not be living with the mother and grandmother.

[56] Each of those claims are governed by sections 94(8) and 104(1) of the CYFSA. Those sections read:

Access

94(8) An order made under clause (2)(c) or (d) may contain provisions regarding any person's right of access to the child on such terms and conditions as the court considers appropriate.

Access order

104(1) The court may, in the child's best interests,

(a) when making an order under this Part; or

(b) upon an application under subsection (2),

make, vary or terminate an order respecting a person's access to the child or the child's access to a person, and may impose such terms and conditions on the order as the court considers appropriate.

[57] The applicable test respecting the parents' access to S. R-L. is the best interests test. The Court is directed to consider the various factors set out in section 74(3) of the CYFSA in light of the evidence, in addition, of course, to the general principles that I have articulated above.

B. Application of the Test Regarding the Child's Temporary Placement

[58] No one argued that there should be a return to the mother alone, either with or without conditions pursuant to section 94(2)(a) or (b) of the CYFSA. I would not have made such an order.

[59] There are reasonable grounds to believe that there is a real possibility, that if S. R-L. were returned to her mother, it is more probable than not that the child will suffer harm. I say this because this case involves a young child. Although as I will explain the mother's mental health is managed, she has nevertheless dealt with mental health issues, including mild opioid use disorder for several years. The child experienced some withdrawal symptoms after her birth given the mother's opioid use. And there is the additional factor of admitted marijuana use on the part of the mother to manage her pain (and on the part of the father), even if the impact of the marijuana is mild. At some point in the recent past, the mother's doctor was concerned about the mother unintentionally overdosing on her medication. And while the evidence is that the parents' relationship with each other is stable, the father recently attempted suicide. The Court needs assurances that the parents' relationship will not become a destabilizing factor in the future that will impact the child.

[60] Thus, in my view, there need to be safeguards in place to ensure S. R-L.'s safety.

[61] That being said, these various factors are not reasons for the child to remain in care in this case. The proposed joint placement on terms and conditions makes good sense. The mother's issues have been well managed in the past and they can continue to be managed. I am finding that the plan is sufficient to mitigate the risks to the child that have been flagged.

[62] While this child is very young and caution is of course warranted, in this case the child's young age also militates in favour of a quick return based on the record before me. This is a critical time that the child should be bonding with her parents. S. R-L. has now been in foster care for over a month, and in my view, whether or not it was the right call by the Societies to take her to a place of safety, now that the mother has moved to Toronto with her mother, S. R-L. should no longer be in care given my view that the mother's plan contains adequate safeguards.

[63] In saying this, I must look at the evidence as a whole. I must decide this motion based only on the evidence that I find to be credible and trustworthy. I will now explain which evidence I find to be credible and trustworthy (on which I base my decision), contrasted to the evidence, which I do not find to be credible and trustworthy, and on which I do not rely.

C. The Evidence on Which This Decision is Based

(1) The Observation of the Parents' Interactions with S. R-L.

[64] I begin with the observation evidence of the parents' interactions with S. R-L.

[65] It is very positive.

[66] As I explained above, the parents stayed overnight with S. R-L. in the hospital during the first three days of her life. The Society learned from a hospital social worker and a team lead nurse that during those first three days, there were no concerns about the parents' interactions with the baby during that three day period, that the father was not presenting as disorganized, and that both parents were alert.

[67] Over the next 20 days when the child was in the neo-natal intensive care unit, there was a lot of opportunity to observe the parents interact with the child as they attended very regularly. Child protection worker Leslie Fraser's affidavit sworn October 1, 2018 states that the parents participated in the child's care, they were involved with the team and asked appropriate questions, and they were "really attached and attuned to S. R-L.'s cues and that they also responded appropriately to nursing direction."

[68] The mother's evidence is that since S. R-L. came into care, the mother has split her time between Toronto and Niagara. Her supports and medical care are in Toronto. Yet with very little money, the mother has been travelling back and forth between Toronto and Niagara to get to these appointments, but also staying in Niagara to see S. R-L. By the time of the motion, she could no longer afford to plan in two cities.

[69] Nevertheless, the mother has been allowed to see the child twice per week. She has not missed a single visit. She is always on time. During visits, she feeds and changes S. R-L. They lie down together and cuddle. The mother sings and speaks to S. R-L. The Society has not had to interfere in the mother's visits on account of any inappropriate interactions.

[70] In summary, it is not disputed that the parents' interactions with S. R-L., either when she was in the hospital, or thereafter, have been very positive. There is no evidence that either parent has come to a visit high or impaired in any way, nor is there any evidence that either behaved inappropriately.

[71] It is not disputed that the child experienced withdrawal symptoms after her birth. There was some suggestion in the record before me that the child may still be suffering from withdrawal. I find this evidence to be insufficient. The Society claims that the foster mother said this a recent meeting. It is agreed that she said the child had "heightened fussiness", but it is disputed whether she said this was on account of withdrawal. In any case, and apart from the fact that such statement is opinion, the foster mother manages the child's fussiness by soothing her in a warm blanket. The grandmother is confident that she can assist the mother in doing this.

[72] All that said, it is important that the Society continue to monitor the parents' (and grandmother's) parenting of S. R.-L. after her return.

(2) The Mother's Mental Health and Opioid Use

[73] Although they present some risk to the child, the mother's mental health diagnoses, her chronic pain and mild opioid use disorder must be put into context. The Court must look at the evidence to assess the extent to which these health issues pose a risk to the child, if the mother is to be in a caregiving role.

[74] I am guided by the commentary in two cases. First, in Children's Aid Society of Toronto v. T.R., 2009 ONCJ 384, [2009] O.J. No. 4192 (C.J.) at ¶ 75, Justice Robert Spence said, "I wish to make it perfectly clear that this court does not take the position that the existence of her mental illness, per se, disqualifies the mother from acting as a capable parent". Likewise, respecting the father's drug use in that case (it was marijuana), at ¶ 43 and 44 of the same case, Spence J. declined to conclude that marijuana use alone is an impediment to good and competent parenting.

[75] In Children's Aid Society of Toronto v. Y.B., 2008 ONCJ 800, [2008] O.J. No. 5698 (C.J.) at ¶ 81-88, Justice Ellen Murray took a similar approach respecting drug use of a more serious nature. She held that the Court must look at the effects of the drug use (it was cocaine), the risk that such use posed to the child, and whether the risk could be managed. Murray J. tried to avoid speculating about future risks, preferring instead to focus on what had actually happened in the past when the parents used cocaine as predictive of future risk.

[76] Obviously each case will turn on its own facts, and the facts of the two cases I have cited are very different from the case before me. As I have already said, in this case, the mother's mental health history and opioid use does not preclude a return of S. R-L. to her care.

[77] I say this for the following reasons.

[78] The mother explained that when she was younger, her doctors tried different combinations of medications to manage her pain. Today, she is not always pain free and she still requires medication to function and live. But she is medically supervised and she has been for many years. This evidence is undisputed.

[79] It is also undisputed that the mother has a long standing relationship with her family doctor, and more recently she has been under the care of a specialist. These are protective factors.

[80] As set out above, her family doctor, Dr. DeRocher, has provided care to the mother for 7 years. The mother has a good relationship with Dr. DeRocher, so much so that even after the mother went to live in Niagara on the Lake in the fall of 2017, she continued to travel back to Toronto to see Dr. DeRocher. Dr. DeRocher has since become S. R-L.'s family doctor. There is a relationship of trust between the mother and family doctor.

[81] Dr. DeRocher prepared a report that the mother filed with the Court for this motion. Dr. DeRocher did not express concerns about the mother's mental health. She also reported that the mother has been "consistently compliant" with her medication. Dr. DeRocher elaborated that the mother had not been hospitalized since her teens for mental health purposes. While the mother has a longstanding history of depression in the context of Bi-Polar disorder, Dr. DeRocher reported that the mother has never been a risk to herself or others for as long as Dr. DeRocher has been involved (7 years). She says that the mother's current mental health is managed. Despite the stress of this "current situation", the mother has "remained functional and minimally impacted with regards to her mental health condition". Later in these reasons, I will highlight what I view to be a concrete example of this statement in relation to this proceeding.

[82] Nor does Dr. DeRocher believe that the mother was abusing her pain medications. However, Dr. DeRocher's report indicates that she was concerned that the mother would unintentionally overdose, given the high doses of opioids she was using, and the tolerance the mother had developed, which Dr. DeRocher said was "out-of-keeping" with what would have been expected. This, combined with the mother's positive urine screens for cocaine (which I will discuss later), is what caused Dr. DeRocher concern.

[83] To deal with these concerns and the fact of the mother's pregnancy, the mother switched to suboxone, in consultation with Dr. Turner. Dr. DeRocher described this as the "gold standard treatment" for both chronic pain and opioid use disorder, particular in pregnancy. Dr. DeRocher's report indicates that the mother attended appointments on time with Dr. Turner, was appropriate and engaged in her treatment.

[84] The mother admits and is worried about Dr. DeRocher's concern about a potential overdose. While she denies using cocaine, she acknowledges Dr. DeRocher's overdose concern and she has asked Dr. Turner to keep her on suboxone for as long as possible.

[85] In summary, the mother's mental health and opioid use are medically supervised by a long standing medical professional and a specialist, with both of whom the mother has a good and trusting relationship. There is no evidence of harm or instability on the part of the mother from either of these health care professionals. Except for the concern about overdose, the evidence is that the mother is managing well.

[86] I find the involvement of these health care professionals to be protective factors in this case. But as part of the terms of supervision, with which the mother agrees, the Court will want to see their continued involvement and the mother's continued compliance with medical treatment. The Court will also want to receive updated evidence about how the risk of overdose continues to be managed to ensure that S. R-L. remains safe in the mother's care.

(3) The Evidence Regarding Cocaine Use and Marijuana

(i) Marijuana Use

[87] I begin with marijuana use. Both parents admit to using it.

[88] In the mother's case, it is not recreational use; she uses marijuana for medical reasons. She obtained a license in 2015. Her evidence is that her reaction to marijuana is mild, and it helps her to relax and to reduce pain and stress. She also explained that she reduced her marijuana use during her pregnancy to a minimal dose. She smoked a small amount only 5 to 10 times in total during her pregnancy. Incidentally, she did not drink alcohol and has no issues with drinking. I note that Dr. DeRocher has not expressed a concern about marijuana.

[89] The father's evidence is that he uses marijuana two times per week. He says that 2 grams lasts him about 2 weeks. He says it has a mild impact on him and he finds it relaxing and calming.

[90] As Spence J. said in Children's Aid Society of Toronto v. T.R., 2009 ONCJ 384, [2009] O.J. No. 4192 (C.J.), marijuana use alone is not an impediment to good and competent parenting. In this case, though, although mild, both parents acknowledge that marijuana has some impact on them. The mother relies on it as part of pain management. And the impact on the father has not been fully explored. As I will explain, he intends to undergo an addictions assessment. Under the terms of a supervision order, the impact of both parents' marijuana use can continue to be monitored to ensure that S. R-L. remains safe. I note that both parents are prepared to consent to an Order that they will not use marijuana when in a caregiving role, which is a reasonable concession in this case.

(ii) The Parents' Alleged Cocaine Use Giving Rise to the Protection Concerns

[91] As set out above, out of all the urine screens that the mother has taken over the years, only one in November 2017 and two in late June and early July 2018 detected cocaine.

[92] The mother undergoes urine screens as part of the management of her health. There is no evidence that she has tested positive for cocaine thereafter.

[93] The mother explained the positive tests as follows. While she was living in Niagara-on-the-Lake with her father, his girlfriend "C." moved in. This person was very problematic. She is a drug addict who continued to use.

[94] The mother explained that in about November 2017 (around the time she had the first positive test) she had a confrontation with C., who was carrying a bag of white power. The mother did not want drugs in the house, which led to the confrontation. During the confrontation, the bag erupted and the mother was exposed to the powder. The mother also believes that it was environmental exposure that resulted in the positive tests in late June and early July 2018.

[95] It is not just the mother's say-so regarding her exposure to cocaine that was put into evidence before me. The grandmother also spoke to her former spouse about C.. The grandfather told the grandmother that C. is indeed a drug addict.

[96] Regarding the father, his doctor reported that he had one positive test at the end of July 2017. The father has denied cocaine use. He admitted to having tried it as a party drug in the past, but he said he hadn't used it since 2014. He takes certain medications in relation to his mental health. Over the summer of 2018, the father's medications were changed. He doesn't know what caused the positive cocaine test, but opined it may be related to his other medications.

[97] As I explained above, there is a dispute in the affidavit evidence as to what Dr. Myubi's position is about the possibility of this. But most recently, Dr. Myubi, authored a letter dated October 3, 2018 saying that he was aware of two articles that said that one of the father's medications could cause a false positive in testing for certain kinds of drugs, including cocaine. This is far from a conclusive statement one way or the other on the cause of the father's positive cocaine test. With no disrespect to Dr. Myubi, I also do not have evidence about Dr. Myubi's qualifications to give an opinion about this, anymore than I have evidence that the father's positive cocaine test should be admitted into evidence in the first place (I address this next).

[98] The child's urine screen at birth was negative for opiates, marijuana or cocaine. By contrast, the child's meconium test was positive for these substances though. However, the mother filed a pamphlet from the US Drug Testing Laboratories, the same laboratory that apparently performed the meconium screen, saying it is impossible to accurately determine the amount of substance ingested. The pamphlet also says that attempting to determine the amount, manner or timing of the substances ingested from the test results is "speculation at best".

(iii) The Society Sought to Improperly Use the Urine Screens and Meconium Testing At this Motion

[99] This evidence begs the question, what is the use to which this information can be put at this stage and how does it factor into the test at a temporary care and custody hearing?

[100] As Justice Stanley Sherr said in Catholic Children's Aid Society of Toronto v. R.M., [2017] O.J. No. 5128 at ¶ 23-36:

[23] The Motherisk Hair Analysis Independent Review (Toronto: December 17, 2015, by the Honourable Susan Lang) (the Lang report) noted that Children's Aid Societies, counsel and judges relied for many years on hair-strand test results for alcohol and drug use from the Motherisk Laboratory. This laboratory operated at the Hospital for Sick Children in Toronto and conducted thousands of hair-strand tests that were used in child protection matters. The Lang report explains how the Motherisk Laboratory was a clinical laboratory and not a forensic laboratory and did not meet internationally recognized forensic standards for its testing. The report concluded that the laboratory lacked expertise in the interpretation of the purported test results, which it frequently misinterpreted or over interpreted.

[24] The Lang report set out in detail multiple flaws and deficiencies in Motherisk's procedures, administrative processes, staff training and staff oversight. It concluded that the hair-strand testing conducted at the Motherisk Laboratory was inadequate and unreliable for use in child protection and criminal proceedings. The report expressed concern about how this unreliable evidence was relied upon in these cases.

[25] The Lang report reiterates the message set out in the "Inquiry into Paediatric Forensic Pathology in Ontario" (Toronto: Queen's Printer for Ontario, 2008) (the Goudge report) that judges have a vital role to play in protecting the legal system from the dangers of unreliable expert evidence. Both reports urge judges to act as gatekeepers by taking a more rigorous approach to examining the reliability of expert evidence.

[26] It follows that judges should be vigilant gatekeepers at all stages of a protection case – not just at the trial stage. A preliminary finding of drug or alcohol abuse against a parent at this stage is likely to follow that parent throughout the entire protection case. It has the potential to significantly impact the direction of the case. It is critical that any such finding be based on reliable evidence.

[101] That said, drug testing may be used in a child protection proceeding, even after Motherisk. However, to do so, the testing must be done properly, admitted into evidence properly, explained properly and its limits properly qualified. For example, see the recent decision of the Nova Scotia Court of Appeal in Nova Scotia (Community Services) v. J.M., 2018 NSCA 71.

[102] Had the Society sought to rely on the urine and meconium testing, the Society could have filed a much more detailed affidavit aimed at providing an interpretation of the tests and establishing their reliability. If the parents objected, there could have been a voir dire, or the Court may have decided to hold one. In Sherr J.'s decision in Catholic Children's Aid Society of Toronto v. R.M., [2017] O.J. No. 5128 at ¶ 27-32, there is a helpful roadmap about the kind of necessary evidence that ought to be in an affidavit, or about the voir dire that would be required.

[103] But instead, the Society conceded that it was not relying on the drug testing at the outset of the motion, which it was also entitled to do. But this means there is no evidence before me of current cocaine use.

[104] However, the drug testing nevertheless influenced the steps the societies took. And although the Toronto Society said it was not relying on the testing, it said it was relying on the three health care professionals' statements of concerns. But those statements of concern flowed heavily from the testing. As I will explain, what the Society essentially sought to do at the motion was rely upon the testing indirectly.

[105] In Chapter 6 of the follow up "Report of the Motherisk Commission" by the Honourable Judith C. Beaman, Commissioner, dated February 2018, Justice Beaman writes that children's aid societies and courts often drew negative inferences about parents, who did not go for testing or disputed results, including about their willingness to cooperate with a society. Moreover, testing was often used as a proxy for parenting. And the use of testing generally reflected a narrow approach to substance use, focused on abstinence.

[106] I find these comments from Commissioner Beaman's report to be quite germane here.

[107] The Niagara Society disqualified the mother as the primary caregiver once it received word of the positive cocaine tests. It initially considered the father as the primary parent briefly thereafter, with the grandmother as a support person. Then it received information from Dr. Myubi and it no longer considered him.

[108] While the Niagara Society received more information from Dr. Myubi about the father apart from just the positive urine screen (which I find would have justified it in taking a more restrictive approach vis à vis the father as a primary caregiver (I will come to this)), it nevertheless very clearly placed considerable weight on the positive urine screen. As explained above, once she learned about the positive urine screen, Ms. Hammuda telephoned Life Labs to get advice. Her affidavit neither names the biochemist as the source of the hearsay, nor does she set out the individual's (to whom she spoke) qualifications to be proffering any opinion that the father's explanation for the cocaine test didn't make sense. But she relied on that advice.

[109] So while I am finding that the evidence of what the person from Life Labs said is inadmissible, the Niagara Society nevertheless relied on it, at least in part, to disqualify the father. And it relied on the drug test to question his credibility.

[110] But it was not just the impact of that evidence on its position respecting the father. Now the Niagara Society disqualified the grandmother too, since she would not be present to parent 24/7, something it did not necessarily consider to be an essential previously.

[111] While the Toronto Society said it was not relying on the urine screens at the motions, it nevertheless argued that the parents' explanations about cocaine use are just not credible. It argued that there needs to be a relationship of trust between the Society and the parents, and that such a relationship cannot exist if the parents are not honest.

[112] While it is true that there needs to be a working relationship, with honesty and information flow in order for a supervision order to work, I find the manner in which the Society wants the Court to apply this general principle in this case to be problematic. I find that its arguments run afoul of the very caution that Commissioner Beaman made in Chapter 6 of the February 2018 Report.

[113] To begin, despite its argument about a lack of trust, it is clear from the material filed that from the outset, both parents have in fact worked cooperatively with the Society and there has been a high degree of transparency. Again, the Society got involved in the first place because of the mother's self-referral. But quite apart from that, the evidence is that the parents have been open and have engaged with the Society.

[114] For example, when they were first asked about drug use after the mother's positive cocaine tests were reported to the Niagara Society, both parents presented as candid and forthcoming with information to Ms. Hammuda. They admitted marijuana use, but denied cocaine use. According to Ms. Hammuda's own evidence, she went on to discuss the harmful impact of drug use for the baby with the parents, and she said they were both "receptive and agreeable".

[115] There is some suggestion in the Society's material that the parents became upset after S. R-L. came into care, and may have thereafter been less willing to engage with the Society after that. If this is true, I find this to be understandable. But any unwillingness, if it existed, did not last long. The evidence before me reveals that the parents (and the grandmother) are very willing to continue working with the Society.

[116] To the extent that either or both of the parents reacted adversely to their child coming into care, this must be looked at in context. The mother was trying hard to come up with a safety plan, and in the face of that, S. R-L. was still taken to a place of safety. Even when the mother was told in advance that S. R-L. would be taken to a place of safety, the mother still kept trying to plan and to persuade the Niagara Society to change its mind.

[117] The mother says that when she learned this bad news, at first she felt "hopeless and defeated". The first person she told was her mother. She says she held her mother and cried.

[118] These are perfectly reasonable sentiments and a completely understandable reaction.

[119] But then she pulled herself together and did not allow this to defeat her. She persevered. With the assistance of her mother, she immediately wrote out a plan to present to the Niagara Society at a meeting that she thought was supposed to take place before S. R-L.'s discharge on August 20, 2018. She was going to try to persuade them to change their position.

[120] I have reviewed the document that the mother and the grandmother prepared. It is a three page agenda type document that asks multiple questions. It asks that many persons at the hospital with relevant information be contacted. The mother wanted to know for how long she would have to present clean drug tests before a return of S. R-L. would be contemplated (something that was not clearly explained to the Court on this motion either). The mother's document contains a Plan A and a Plan B. It also raises a number of the mother's concerns about what she viewed as a lack of transparency from the Niagara Society towards her.

[121] That she was able to prepare this under the circumstances speaks to the mother's functioning that Dr. DeRocher commented about in her report.

[122] But then, the meeting never occurred. Instead, the Society took S. R-L. into care.

[123] The Toronto Society still does not believe the parents' explanations that they did not use cocaine. That is its prerogative. And if the Society is correct and the parents have been dishonest, then the Society's trust based submission has merit.

[124] But trust is a two way street.

[125] What if the parents were telling the truth and then the societies refused to accept their explanations and took more interventionist steps accordingly? Certainly this too would undermine the good working relationship between the parents and the Society. Arguments about trust being required for a supervision order to work usually focus on the parents' conduct. But a good working relationship may also be impacted by steps a society takes.

[126] In any case, I fail to see how I can find that the parents ought not be trusted to work with the Society based on the record before me. In light of the history of cooperation prior to and after the positive screens, how could the Court possibly refuse to admit the urine and meconium tests, only to then conclude that the parents are not credible concerning their explanations to refute the positive tests that were not to be admitted in the first place? Wouldn't that require the Court, after first having refused to admit the very drug tests, to essentially then accept the tests as true in drawing an adverse inference that the parents aren't to be believed?

[127] In my view, if I were to accept the Society's arguments, it would be akin to admitting the drug testing through the 'back door' and I would run afoul of the lessons to be learned from the Report of the Motherisk Commission.

[128] Respecting their ability to work with the Society under the supervision order, I prefer to rely on the other evidence about the parents' ability to do that. Although the parents may have been upset after S. R-L. came into care, I do not get the sense from the affidavit material before me that the parents will now not work cooperatively with the Society going forward. To the contrary, they have proposed a plan in which they commit to significant ongoing cooperative involvement with the Society, as well as significant and somewhat intrusive ongoing health disclosure.

[129] Further, I do not get the sense that the grandmother will not be cooperative with the Society either. Rather, the evidence is that the grandmother will impose rules, and to some extent she has agreed to be policing the parents. She will not allow illegal drugs or paraphernalia into her home. She will not allow the parents to smoke marijuana in the house. The evidence is that she will not hesitate to call the police or the CAS if there is a problem.

[130] When a submission was made about what the grandmother is prepared to do, I observed the grandmother to actively nod in agreement from the back of the court room. In making the Order that I am making, the Court is relying on the undertaking from the grandmother to be vigilant. I am prepared to find that she is a protective factor.

[131] Finally, I also rely on the fact that there has been a change in societies from Niagara to Toronto since S. R-L. has come into care. This is an opportunity for a 'clean slate' for the working relationships going forward.

[132] It is the Court's expectation that both sides will work with each other in good faith under the parameters of this interim order.

D. The Father's Access to S. R-L.

[133] In my view, there should be a slight modification of the terms of the plan insofar as it pertains to the father's access. The father's access should be slightly more restrictive than proposed until the safety concerns that I am flagging are fleshed out and until the Court has better evidence as to the father's stability.

[134] The evidence concerning the father's mental health is different from that concerning the mother. The evidence about the father does not demonstrate that he has come as far as the mother. There is more work on his part to do, but he will have an opportunity to demonstrate his commitment to S. R-L. and in these reasons it is my intention to encourage that.

[135] Apart from the drug testing that I am not relying on, there is some concerning evidence from both the father and the father's doctor about the father's mental health. There is some suggestion that the father may not have been compliant with his medication. There is also an admission from the father that as recently as December 2017, the father attempted suicide by taking his and other's pills and alcohol. He was hospitalized for 9 days.

[136] The father's case lacked the same degree of positive medical evidence that formed part of the mother's case. The father did not have the same level of continuity of care from a health care provider nor the same degree of positive feedback from his doctor. This all needs to be explored further.

[137] I am however encouraged by the father's willingness to undergo an assessment at CAMH. His appointment for this was booked for October 4, 2018, the day after I heard the motion and I expect that I will hear an update/report back to the Court at the next attendance.

[138] I am also encouraged by the observation evidence about the father's interactions with S. R-L., which is positive.

[139] And I am encouraged that the parents' relationship with one another is a positive one. That said, the father responsibly agreed not to try to live with the mother. Given the issues that remain to be explored, this was a wise decision at this point.

PART IV: ORDER

[140] Based on the foregoing, I make the following orders:

(a) The child shall be placed in the joint care and custody of the mother and the grandmother. The mother shall reside with her mother in the apartment listed in paragraph 58(b) of her affidavit sworn September 22, 2018. If there is to be a change of residence, the mother and the grandmother shall notify the Society of the new address;

(b) The grandmother shall work from home three days per week for the first month. Thereafter, she shall do so two days per week. The mother or the grandmother shall provide to the Society the grandmother's work schedule so that the Society is aware of the days that the grandmother is at home versus at work;

(c) The grandmother shall come home for lunch from time to time on the days that she is at work. The maternal uncle, J.L may also stop by;

(d) The grandmother shall supervise the mother's and child's interactions. For clarity, the grandmother need not monitor continuously and the mother is at liberty to go out into the community with the baby without the grandmother always being present. However, the mother and the baby must sleep overnights at the grandmother's home;

(e) The mother may attend community programs with S. R-L. such as those listed in paragraphs 58(g) & (h) of her affidavit sworn September 22, 2018;

(f) The mother shall apply for a daycare subsidy and she shall enrol S. R-L. into daycare as soon as a spot becomes available once she obtains the subsidy;

(g) The requirement that the grandmother work from home may be reviewed once the child is enrolled in day care, or otherwise in the event of a sufficient change in circumstances, the sufficiency of which may be addressed at a later stage of this case;

(h) The Society shall be entitled to have announced and unannounced visits at the mother's/grandmother's home. It is the Court's expectation that as this new arrangement is put in place, the Society will visit the home more frequently at the outset and particularly on days when the grandmother is at work;

(i) The Society shall also make a referral to the public health nurse. Ideally the public health nurse will be able to visit with the mother to check in on the mother and the baby on days when the grandmother is at work;

(j) At this time, the father shall not reside with the mother. He may have access to the child as arranged between the parties when the grandmother is present at home. Otherwise, he may have access to the child when the mother attends at community programs. At this point, the Court is not permitting the father to have access to S. R-L. in the home when the mother is alone without the grandmother present;

(k) The mother and the child shall continue to be cared for by Dr. DeRocher;

(l) The mother shall continue to undergo urine screens on a weekly basis, or more frequently if required by Dr. DeRocher, and such tests shall be disclosed to the Society;

(m) Neither parent shall smoke marijuana or use any illegal drugs while in a caregiving role;

(n) Based on his consent, the father is undergoing an addiction assessment at the Metro Addictions Assessment Referral Services. The results of the assessment shall be provided to the Society;

(o) Both parents shall sign consents for the release of information from third parties to the Society. This shall include, but shall not be limited to Dr. DeRocher and Dr. Turner in the mother's case, the public health nurse should one become involved, and Dr. Myubi and CAMH in the father's case; and

(p) Both parents shall participate in any programming as recommended by the Society.

[141] As set out in paragraph 140(l) above, the Court is ordering the mother to continue to submit to urine screens. The mother has consented to this as part of her plan in this case. I have made this Order in part based on the mother's consent, and in part because testing is otherwise a requirement of her health care, given her diagnosis with a mild opioid use disorder.

[142] Had there not been a consent to ongoing testing, or had the Court made orders requiring the Society to exercise discretion respecting parenting time, such as for example an order for access in the Society's discretion, then there might have been a concern about ordering testing, given Justice Beaman's commentary, to which I have referred. For example, were the Society to have discretion over access, then the mother might have been concerned that it would rely on any particular future test results as a basis to exercise its discretion one way or the other. And I would have questioned the propriety of making such an order given that the testing being referred to, to date, may or may not be proven to be reliable in the future in this proceeding.

[143] The Society must be vigilant to avoid using any future test it obtains as a result of my order at paragraph 140(l) improperly. But given that the Society is not being given discretion over access, the risk that it may base a decision on a future test is reduced.

[144] That said, if there is a positive test in the future and the Society has protection concerns based on that (or based on other facts in the future), then the parties will need to return to Court. If any of the parties seeks to rely on any of the testing in the future, then the parties should follow the guidance laid down in Sherr J.'s decision in Catholic Children's Aid Society of Toronto v. R.M., [2017] O.J. No. 5128, and by the Nova Scotia Court of Appeal in Nova Scotia (Community Services) v. J.M., 2018 NSCA 71.

[145] The next date in this matter is November 5, 2018 for a case conference. I direct the parties to each file updating affidavits for that appearance.

[146] I wish to thank all counsel for their thorough and helpful submissions.

Released: October 9, 2018

Signed: Justice Alex Finlayson