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: 2018-12-06

Court File No.: Brampton 18-20007

Between:

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

— AND —

I.A. Respondent/Mother

K.I. Respondent/Step-Father

S.O.A. Respondent/Father

Before: Justice Lise S. Parent

Heard on: November 21, 2018

Reasons for Judgment released on: December 06, 2018

Counsel:

• A. De Melo — counsel for the applicant Society
• I.A. — on her own behalf
• K.I. — on his behalf
• S.O.A. — on his own behalf

PARENT J.:

Proceeding Before the Court

[1] This is a care and custody motion in respect of the child, I.A., born XX, XX, 2009.

[2] The Society seeks an order placing the child I.A. in the temporary care and custody of the father subject to the supervision by the Children's Aid Society of Peel ("the Society") and subject to the following terms and conditions:

a. The father, S.O.A., shall follow through with registering the child, I.A., in a specialized school to meet I.A.'s learning needs.

b. S.O.A. shall allow the Children's Authority of Trinidad and Tobago to have access to the home and to meet with the child, I.A., on an announced or unannounced basis.

c. S.O.A. shall ensure that the child, I.A., receives support from a family physician and/or a mental health professional in relation to I.A.'s diagnosis. Such support shall include, but shall not be limited to the continued monitoring of I.A.'s prescribed medication and follow-up appointments with a psychologist.

d. S.O.A. shall follow through with recommendations by the child's school, family doctor, and other professionals working with the child, I.A.

e. S.O.A. shall sign consents to enable the Children's Aid Society of the Region of Peel to exchange information with professionals and service providers with whom he and/or the child, I.A., are involved.

f. S.O.A. shall ensure there is no adult conflict in the home, and shall not use any demeaning words in the presence of the child, I.A.

g. S.O.A. shall participate in all programs and services recommended by the Children's Aid Society of the Region of Peel and/or the Children's Authority of Trinidad and Tobago.

h. In the event that he is unable to care for the child, I.A., S.O.A. shall immediately notify the Children's Aid Society of the Region of Peel.

i. S.O.A. shall ensure the child, I.A., has telephone access with the respondent mother, I.A., every Sunday at 5:00 p.m.

[3] The notice of motion filed by the Society further seeks an order that access between I.A. and the mother and step-father be at the discretion of the Society as to location, duration, frequency and level of supervision.

[4] The Society seeks this order pending the determination of their Amended Protection Application, filed on October 25, 2018 seeking statutory findings pursuant to section 90(2) of the Child, Youth and Family Services Act, 2017 S.O. 2017, c.14, Sch. 1 ("CYFSA"); a finding in need of protection pursuant to sections 74(2)(a)(i), 74(2)(b)(i) and 74(2)(h), and an order that I.A. be placed in the care of the father subject to the supervision of the Society for a six (6) month period with access to the mother and step-father at the Society's discretion pursuant to section 101(1) 1.

[5] I.A. was apprehended from the care of the mother and the step-father on January 18, 2018. There is also another sibling in the care of the mother and the step-father who is not subject to these proceedings.

[6] I.A. has remained in the care and custody of the Society pursuant to a temporary without prejudice order granted by Clay, J. on January 23, 2018. This order also provides that access between I.A. 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 I.A. was due to concerns that I.A. was being inappropriately physically disciplined and emotionally abused by the mother and the step-father.

[8] The Protection Application filed by the Society on January 25, 2018, sought an order of six (6) month society wardship with access to family members at the discretion of the Society. This initial Protection Application was filed pursuant to the Child and Family Services Act, R.S.O. 1990, c.C.11, as am. ("CFSA") which was thereafter replaced by the CYFSA on April 30, 2018.

[9] The Society, in support of this order, filed the affidavit of the involved child protection worker, Ms. Abimbola Fajobi. This affidavit is sworn January 22, 2018 and is located at Tab 3, Volume 1 of the Continuing Record.

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

Regarding the Mother:

(i) Prior domestic violence with I.A.'s father;

(ii) Ability to properly address I.A.'s behaviours, within the home and at school, such as aggression, being fearful, sexualized conduct and inability to form relationships with peers and adults;

(iii) The inappropriate use of physical discipline;

(iv) Statements made indicating that I.A. should be removed from the family home due to I.A.'s behaviours; and

(v) An inconsistency of dispensing ADHD medications to I.A.

Regarding the Step-Father:

(i) The inability to appropriately address stressors within the family, including I.A.'s behaviours and financial challenges; and

(ii) The inappropriate use of physical discipline on I.A.

[11] The affidavit further indicates the Society has limited information regarding the father, namely that he resides in Trinidad and Tobago and his precise whereabouts are unknown.

[12] On July 4, 2018, the Society filed an affidavit sworn the same day by Ms. Emma Frank, the child protection worker involved with I.A. This affidavit is located at Tab 8, Volume 1 of the Continuing Record.

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

Regarding the Mother and Step-Father:

(i) The decision by the mother and step-father to not continue with I.A.'s medication routine despite medical diagnosis of severe ADHD;

(ii) Comments expressed regarding individuals involved with I.A. and the level of care being offered; and

(iii) Level of discussions needed with the mother and the step-father so as to encourage and ensure their recognition of the need for appropriate activities, given their child's needs, to engage I.A. during the access visits;

[14] The affidavit also sets out positive interactions between I.A., the mother and step-father during access visits. These include positive comments by the mother and the step-father regarding I.A.; the completion by the mother and step-father of a parenting course; attendance and participation by the mother and the step-father at a school celebration for I.A.

[15] The affidavit further indicates the Society's limited updated information regarding the father, namely that the Society had only recently been able to contact him and arrange for service of the court documents.

[16] On November 1, 2018, the Society filed a supplemental affidavit sworn October 1, 2018 by Ms. Emma Frank. This affidavit is located at Tab 2, Volume 4 of the Continuing Record.

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

Regarding the Mother and Step-Father:

(i) The denial by the mother of fleeing Trinidad and Tobago following the commencement of court proceedings by the father in that jurisdiction;

(ii) The mother's statements that she and I.A. were not safe with the father;

(iii) The step-father's reaction, which resulted in his yelling in front of I.A. and a sibling, when being advised that the father would be served with court papers;

(iv) Disclosures by I.A. that the mother and step-father continue to expose I.A. to adult conflict and use inappropriate physical discipline resulting in I.A. requesting that access be suspended;

(v) Ongoing denials by the mother and step-father of I.A.'s allegations even when verified by the Society following investigation;

(vi) The refusal by the mother for supervised visits during the Society's investigation of the allegations;

(vii) The position of the mother that I.A. not continue medication for ADHD, and disclosures by I.A. that the mother does not administer the medication during access visits;

(viii) Denials by the mother that she does not administer I.A.'s prescribed medicine even when these allegations are verified;

(ix) Concerns regarding the proper supervision of I.A. during extended access visits;

(x) Pattern by the mother of withholding information from the Society worker including the location of the father for service purposes;

(xi) Indication that the mother and step-father continue to struggle, despite receiving the resource of a child and youth worker and other community resources, to assist them in developing skills, to manage I.A.'s behaviour given I.A.'s special needs;

(xii) Ongoing pattern of blaming and shaming I.A.; and

(xiii) Persistence by the mother in not administering medication to I.A. despite being made aware of the medical and educational opinions that indicate management, including prescribed medication, is needed to control I.A.'s ADHD as it is at a level that will continue to impact I.A.'s quality of life in all areas including education, peer and family relationships and overall functioning.

[18] The affidavit does contain evidence that the mother attempted to calm the step-father given I.A.'s reaction in front of the children and the mother displaying affection towards I.A. during certain visits.

[19] The affidavit further indicates that the Society was supporting a placement of I.A. with the father given the comprehensive Plan of Care and affidavit with extensive supporting documents the father served on the Society. The affidavit states that the father's plan is child-oriented, demonstrates an awareness of I.A.'s needs and efforts made by the father to address those needs if I.A. is placed in his care.

[20] The affidavit further indicates that the Society's efforts have confirmed the available resources in Trinidad and Tobago as submitted by the father.

[21] The affidavit further indicates that the father has produced documents confirming that he obtained, on November 18, 2015, a variation before the court in Trinidad and Tobago with the result that he now had an order granting him custody of I.A.

[22] The affidavit further indicates that during the father's stay in the Region of Peel in order to attend a court appearance on October 17, 2018, he "had favourable access with I.A. which went exceptionally well."

[23] On November 19, 2018, the Society filed a supplemental affidavit sworn November 16, 2018 by Ms. Emma Frank. This affidavit is located at Tab 8, Volume 4 of the Continuing Record.

[24] A review of this affidavit confirms that this affidavit was filed in response to the mother's latest affidavit. The affidavit details the evidence supporting the Society's ongoing concerns which can be summarized as follows:

Regarding the Mother and Step-Father:

(i) The further withdrawal by the mother and step-father of their willingness to work co-operatively with the Society including receiving services and assistance from the Society and/or those arranged by the Society;

(ii) The inability of the mother and the step-father to recognize and accept that their behaviour has resulted in I.A. being in care;

(iii) The ongoing failure by the mother to administer prescribed medication to I.A.;

(iv) The ongoing inability of the mother and the step-father to demonstrate insight into their behaviour which caused and continues to cause harm to I.A. both physically and emotionally; and

(v) The ongoing concerns of the mother's ability to manage I.A.'s behaviours and fully engage during visits.

[25] The Society submits that the initial and continued existence of their concerns regarding the mother and the step-father, which have not lessened even with resources being made available to them coupled with the deterioration of the mother and the step-father's willingness to engage with the Society, does not support a return of I.A. to their care, with or without terms of supervision.

[26] The Society submits that given the plan of care proposed by the father, which includes resources for I.A. and the willingness of the father and the local child welfare agency to supervise, the evidence supports a temporary placement of I.A. with the father in Trinidad and Tobago.

Position and Evidence of the Father

[27] S.O.A. was self-represented at the hearing. His submissions were limited to supporting the order requested by the Society. He further indicated that he loves I.A. very much and wants to have I.A. come to live with him in Trinidad and Tobago.

[28] A review of the file confirms that S.O.A. filed, on October 22, 2018, an Answer to the Society's Protection Application. In this document, S.O.A. confirms that he is seeking that I.A. be placed in his care.

[29] S.O.A. has also filed two (2) affidavits within these proceedings namely an affidavit sworn October 1, 2018 located at Tab 2, Volume 3 of the Continuing Record and an affidavit sworn October 18, 2018 located at Tab 2, Volume 3 of the Continuing Record.

[30] The summary of the evidence provided by S.O.A. is as follows:

Concerns Regarding the Mother and Step-Father

(i) Following a consent divorce order granted on April 13, 2012 in Trinidad and Tobago, the mother was given sole custody and he was given liberal access;

(ii) He was unable to develop a proper relationship with I.A. due to the mother's behaviours which he describes as aggressive, contentious and insulting;

(iii) Following the filing of proceedings by him to obtain custody of I.A. in January 22, 2015, the mother left Trinidad and Tobago with the step-father and I.A.;

(iv) His efforts, including a Hague Application, he indicates failed as the mother was in Canada, were made by him to have I.A. returned to his care;

(v) He obtained a temporary order from the court in Trinidad and Tobago on December 8, 2015 giving him custody;

(vi) That he came to Canada in January 2017 to see I.A. and settle the issues of custody and access with the mother however she refused all attempts for discussions and contact; and

(vii) That the mother deliberately misled the Society as to his identity and whereabouts in order to delay his involvement in this matter.

Plan of Care for I.A.

(i) He has the ability to provide I.A. with an appropriate home and ensure that all of I.A.'s medical, dental and optical needs are met including being pre-enrolled in a local private school that has an educational psychologist to assist in I.A.'s special needs;

(ii) He has arranged for I.A. to be seen by a psychiatrist so as to develop a treatment plan given the abuse I.A. has suffered;

(iii) He has met with the Senior Legal Officer of The Children Authority of Trinidad and Tobago and is prepared to have them supervise I.A.'s placement with him;

(iv) He is prepared to allow access through the internet between I.A. and the mother;

(v) I.A. would be able to develop a relationship with an older half-sibling who also resided in Trinidad and Tobago;

(vi) I.A. would have the support of the father's fiancée, church and community;

(vii) He has the financial ability to meet all of I.A.'s needs; and

(viii) He is prepared and committed to working with all professionals and child welfare agencies to ensure all of I.A.'s needs are met.

[31] It is on this basis that S.O.A. confirms his consent to the order requested by the Society to place I.A. in his care under their supervision.

Position and Evidence of the Mother and Step-Father

[32] I.A. represented herself and the step-father at the hearing. She submitted that she and the step-father, K.I., opposed the request of the Society and the father and sought the return of I.A. to their care.

[33] The mother further submits that should I.A. be returned to her and K.I.'s care, they will continue to access services provided by the Society and the community so as to address I.A.'s behavioural challenges. She indicates that she is prepared to accept and respect any conditions attached with this placement should this order be granted.

[34] A review of the file confirms that I.A. and K.I. filed an Answer on March 14, 2018 jointly seeking the return of I.A. to their care. This position was further confirmed when I.A. and K.I. filed, on November 13, 2018, an Answer to the Society's Amended Protection Application.

[35] A review of the file also reveals that I.A. and K.I. have filed six (6) affidavits within these proceedings, namely an affidavit sworn April 13, 2018 located at Tab 5, Volume 1 of the Continuing Record; an affidavit sworn June 28, 2018 located at Tab 7, Volume 1 of the Continuing Record; an affidavit sworn August 2, 2018 located at Tab 9, Volume 1 of the Continuing Record; a second affidavit sworn August 2, 2018 located at Tab 10, Volume 1 of the Continuing Record; an affidavit sworn November 13, 2018 located at Tab 5, Volume 4 of the Continuing Record and a second affidavit sworn November 13, 2018 located at Tab 6, Volume 4 of the Continuing Record.

[36] The submissions made and the evidence filed on behalf of I.A. and K.I. are that they are prepared and able to resume the care of their child.

[37] A summary of the submissions and the evidence provided are as follows:

(i) I.A. is a certified medical doctor in Trinidad and Tobago and is currently before the Medical Board of Canada sitting her examinations. She therefore has the ability, intellect and skills to determine whether or not I.A. should be medicated and in what dosage;

(ii) K.I. is a pastor, a musician and a publisher who is able to provide support and guidance to his step-child, I.A. and the mother and K.I.'s other child;

(iii) I.A. and her family have been co-operative with the Society and all community resources provided by the Society and sought out by herself;

(iv) I.A. and K.I. have successfully completed, and provided proof of this completion, the COPE Parenting Program offered through a community resource;

(v) K.I. has successfully completed, and provided proof of this completion, of an anger management course offered through a community resource;

(vi) Both she and K.I. have benefitted and learned from the courses they have completed;

(vii) She and K.I. have only used verbal discipline with the child I.A. except on one occasion when a belt was used;

(viii) K.I. no longer uses his hand to discipline I.A.;

(ix) She has sought assistance for I.A. regarding the sexual abuse that was endured when she was a single parent in Trinidad and Tobago and the father did not provide for them and made threats against them;

(x) The father has never been a part of I.A.'s life and therefore is not a parent to I.A.;

(xi) She and I.A. had to flee from Trinidad and Tobago so as to ensure their safety given the physical, emotional and financial abuse by the father;

(xii) She is the custodial parent of I.A.;

(xiii) The father has never exercised his access rights which has brought upon anger, shame, sadness and behavioural reactions by I.A.;

(xiv) The Society has been misleading in its evidence, has dismissed her concerns regarding I.A.'s care while away from her and is favouring the father over her;

(xv) The father is misleading the court as he will never follow through with the plan he has presented for I.A. if placed in his care;

(xvi) I.A. is receiving all the necessary resources, at school and in the community, currently in the Region of Peel. I.A. is familiar with these resources and is responding to them. The removal of I.A. from these resources would be detrimental; and

(xvii) The child I.A. does not know his father, his fiancée or his child from another relationship.

[38] The mother submits that she and K.I. have demonstrated their commitment to I.A., and complied with all the requirements of the Society. She submits that the Society should have no concerns regarding their parenting abilities and that all concerns resulting in the Society's initial and current involvement with her family have been addressed.

[39] Given this evidence, the mother submits that I.A. should be returned to her and I.K.'s temporary and permanent care.

Legislative Framework

[40] Section 94(2) of the Child, Youth and Family Services Act, 2017 ("CYFSA") 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.

[41] 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 I.A. is returned to the care of the mother and the step-father, who had care prior to the commencement of these proceedings, it is more probable than not that I.A. will suffer harm.

[42] Section 94(2) also places the onus of proof on the Society to establish that I.A. cannot be adequately protected by any conditions attached to an order returning the child to the care of the mother and the step-father.

[43] In summary, section 94 requires a two-part test to be met prior to the Society's request for an order placing I.A. in temporary care of the father can be granted.

[44] If the Society discharges its burden of proof under section 94(2)(a) and (b) such that I.A. cannot be returned to the care of the mother and the step-father, the court must then turn to alternative plans by other persons to determine if a placement, subject to the Society's supervision and other terms, does not place I.A. at risk. This placement option must be considered prior to requesting an order placing the child in the care of the Society.

Analysis

[45] I am being presented with two plans at this stage of the proceedings, namely the return of I.A. to the mother and step-father or the placement of I.A. with the father. Both plans entail that I.A.'s placement would be subject to the Society's supervision and on such reasonable terms and conditions which are appropriate in these circumstances.

[46] Neither the Society nor the parties have submitted a plan or any evidence whereby I.A. could be cared for by a relative, a member of the extended family or community within the Region of Peel on a temporary basis.

[47] After a review of the evidence presented and upon hearing submissions from all parties, I am denying both the Society's motion as well as the mother and step-father's request for the following reasons.

[48] The evidence of the Society overwhelmingly details historic and ongoing concerns regarding the mother's and the step-father's actions towards I.A. which include the use of inappropriate physical discipline, blaming and/or shaming behaviour, and an inability and/or unwillingness to modify this behaviour.

[49] I further find that although the mother and step-father have put forward evidence of their willingness to work with the Society and community supports, I find that this willingness is conditional on only them determining what is in I.A.'s best interests. I am further concerned that the evidence of the mother and the step-father does not indicate an acceptance of I.A.'s special needs and therefore the extensive resources needed to manage them.

[50] 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.

[51] All of this evidence does not lead me to believe that, despite the assurances made to the Court during the hearing, I find that the mother and the step-father are not willing and/or able to follow any conditions or terms I could impose within an order placing I.A. in their care under the Society's supervision.

[52] On the evidence presented, I find that there are reasonable grounds to believe that should I.A. be returned to the mother and the step-father's care, even with clear and precise terms and conditions, there is a real possibility that I.A. will suffer harm.

[53] I find that the evidence presented by the Society regarding the mother and the step-father is credible and trustworthy and satisfies me that the Society has met its burden. Accordingly, the order requested by the mother and the step-father is denied.

[54] The denial of the mother and the step-father's request requires me to consider the order sought by the Society pursuant to section 94(2)(c) of the CYFSA, namely the placement of I.A. with the father.

[55] There is no dispute that the father is consenting to the placement of I.A. in his care.

[56] The father has filed evidence supporting his plan as noted. The Society has provided evidence that it has communicated directly with the service providers put forward by the father in order to satisfy themselves that the placement of I.A. is appropriate.

[57] In order for me to conclude that I.A. could be adequately protected if placed in the care of a person, other than the person captured by section 94(2)(a) or (b), I must be satisfied that the supervision and the conditions will be adhered to in a meaningful manner.

[58] The evidence before me demonstrates clearly the willingness of the father to support I.A. in all areas. I am further satisfied that the evidence supports the determination that the father has made initial contacts with community resources to assist him in attending to I.A.'s needs.

[59] There is however an absence of evidence before me, by the father and the Society, that addresses how any terms and conditions imposed will be meaningfully adhered to given the fact that the evidence confirms that I.A. has had very limited contact with his father since 2012. There is also an absence of any details regarding the context, frequency, duration, supervision of the father's contact with I.A. when he came to Canada in October 2018.

[60] The evidence is clear that I.A. has significant behavioural issues. These issues have manifested themselves in the care of the mother and the step-father, at school, in the community, in foster care and even during supervised visits. These issues have manifested themselves even with I.A. being involved with numerous medical and educational resources.

[61] I accept that the father is sincere in wishing to parent I.A. however, the fact that the father has, by his own admission not been involved with I.A. since 2012, does not satisfy me that the placement of I.A. in his care would not result in a real possibility that I.A. will suffer harm due to, at this temporary stage, the father's lack of a meaningful relationship with I.A. and the absence of evidence as to how this will impact the father's ability to parent I.A. given his special needs and in an unfamiliar environment, namely Trinidad and Tobago.

[62] In making this determination, I am aware of the mother's and the father's position as to the other's behaviour that resulted in I.A. not having a relationship with his father.

Order

[63] For the reasons stated above, the motion of the Society is denied.

[64] An order will go however making the order of Clay, J. granted January 23, 2018, on a temporary without prejudice basis, a temporary order.

[65] The matter will remain as scheduled TBST on January 16, 2019 at 9:30 a.m. in Courtroom #208 on the terms outlined in my endorsement dated November 21, 2018.

Released: December 06, 2018

Justice L.S. Parent