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: June 24, 2019

Court File No.: Sault Ste. Marie File No. 207/18

Between:

Children's Aid Society of Algoma, Applicant

— AND —

JR JPG JC RC DH

Respondents

Before: Justice John Kukurin

Heard on: June 21, 2019

Reasons for Judgment released on: June 24, 2019

Counsel

John Rossi — counsel for the applicant society

Shadrach McCooeye — counsel for the respondent mother, JR

Jasmine Gassi Harnden — counsel for the respondent father, JPG

JC — not present, although duly served

RC — not present, although duly served

DH — not present, although duly served

Lindsay Marshall — Office of the Children's Lawyer counsel for the children A., D., and J.

Reasons for Judgment

KUKURIN J:

[1] This is a decision on two motions. The first (at Tab 2, Vol. 1) is brought by the Applicant society for an order:

(a) for temporary care and custody of five children of the mother, JR, in her favour subject to an interim supervision order with a number of conditions;

(b) for access to the biological father of the two youngest children, JPG, with respect to all five children, with a number of conditions;

(c) for an order for legal representation for the three oldest children by the Office of the Children's Lawyer (the OCL).

[2] The second motion is brought by the mother (at Tab 15, Vol 1) for an order:

(a) that interim (temporary) care and custody of all five children be granted to the mother subject to no supervision order by the society, and subject to no conditions;

(b) alternatively, that the five children be placed in the temporary care and custody of the mother subject to a society supervision order, but with less restrictive terms and conditions than are sought by the society, and as further discussed below.

[3] This is a temporary care and custody hearing in a child protection application in which the society seeks placement with the mother of all five children subject to the society's supervision, for twelve months, and subject to a number of conditions (twelve in number), eleven of which require the mother to do or not do something, and the twelfth of which gives the society the right to go into her home, with no prior notice, speak privately to her five children at their home or elsewhere.

[4] As can be readily inferred, the mother has five children. The three oldest are ages 17, 15 and 10 and each has a different biological father. The two youngest are twins, two years of age and their biological father is a fourth father, the respondent JPG. There does not appear to be any existing family court order dealing with custody or access under the Children's Law Reform Act. However, from the facts before this court, it is a reasonable inference that the mother is the person who had charge of at least four of the five children, and maybe all five.

[5] During the weekdays, the child J. apparently resides with his biological father (JC), or his paternal grandmother, when his father is working. He resides with his mother and his four half siblings on weekends. This arrangement for the child J. is apparently consensual between his biological parents but not, it appears, a happy one from the mother's point of view. It is difficult to conclude that J.'s mother is the person who had charge of him at the time of the society's intervention. As for when that time was, it was when the society filed its application, November 5, 2018.

[6] This child protection case is not one that has only just started. November 5, 2018 is seven months in the past. The temporary care and custody hearing is already six months late based on Rule 33 of the Family Law Rules, which governs the timelines in this case, and states that such hearings should take place no more than 35 days after the application is commenced.[1]

[7] This case, and the motion of the society for temporary care and custody, was first before the court on November 7, 2018 at which time the presiding justice made an order "without prejudice" based only on the evidence filed by the society. That order placed four of the children with the mother, and provided no placement order for the child J. for no discernable reason.[2] The placement of the four other children was subject to an interim supervision order with precisely the same conditions that the society is seeking in its final order in this application. An order was made for access to JPG, the father of the twins, for access to all five children, but again, on a without prejudice basis and with conditions, the most important of which is that his access to his twin sons be supervised, and that his access to the three older children be subject to their wishes. The without prejudice order also gave the mother access rights to the child J. The "without prejudice" order has persisted for the past 7½ months and the hearing before the court now is for a temporary care and custody order that is not made "without prejudice".

[8] In the meantime, an order was made for legal representation of the three older children who have had Ms. L. Marshall appointed by the OCL.

THE LAW OF TEMPORARY CARE AND CUSTODY

[9] The Child, Youth and Family Services Act (the CYFSA) replaced the Child and Family Services Act (the CFSA) effective April 30, 2018. In the area of temporary care and custody, both statutes had the same provisions, with one significant change, namely, the CYFSA contains a prohibition placed on the court from making a temporary care and custody order with respect to a child unless it first takes into consideration the child's views and wishes, giving them due weight in accordance with the child's age and maturity, provided that such views and wishes can be ascertained.[3]

[10] The provisions for temporary care and custody are found in s.94 of the CYFSA. There are four choices that a court can make with respect to any child. The first two are non-removal orders under paragraphs (a) or (b) of s.94(2) CYFSA. In the present motion, the court is asked to choose between these two orders.[4]

S.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.

[11] There are two removal orders that the court may also make. However, for the court to make either of these orders, the society has the onus to satisfy the court that both of two criteria are present. These two criteria are set out in s.94(4) CYFSA.[5] However, the fact that the society is seeking only a non-removal order signifies to the court that the society cannot meet the s.94(4) criteria to warrant an order that removes the children from the mother.

[12] Accordingly, the court has to look for the statutory criteria that determines whether the court makes a non-removal order with society supervision and conditions attached [i.e an order under s.94(2)(b)], or whether it makes a non-removal order with no society supervision and no conditions [an order under s.94(2)(a)]. There are no such criteria in the CYFSA. So the court has to look at the regulations made under the CYFSA. There are none there, either. The next place to look at is case law. However, no counsel cited any case law that applies to such a choice. The closest that anyone came is s.1 of the CYFSA setting out its purposes.

[13] Section 1 of the CFSA contains principles and purposes that apply throughout the entire statute. The foremost is s.1(1) that focuses on the child:

S.1 (1) The paramount purpose of this Act is to promote the best interests, protection and well-being of children

[14] This is followed by section 1(2) that lists a number of other additional purposes that, provided that they are consistent with the paramount purpose, should be recognized. These are many and various, but among the ones that are applicable in the motions presently before the court are the following:

1. While parents may need help in caring for their children, that help should give support to the autonomy and integrity of the family unit and, wherever possible, be provided on the basis of mutual consent.

2. The least disruptive course of action that is available and is appropriate in a particular case to help a child, including the provision of prevention services, early intervention services and community support services, should be considered.

3. Services to children and young persons should be provided in a manner that:

   i. respects a child's or young person's need for continuity of care and for stable relationships within a family and cultural environment;

   ii. takes into account physical, emotional, spiritual, mental and developmental needs and differences among children and young persons;

   vi. includes the participation of a child or young person, the child's or young person's parents and relatives and the members of the child's or young person's extended family and community, where appropriate.

[15] In terms of protection of children, the CYFSA authorizes the state, in the entity of a children's aid society, to intervene in a family but only if a child is in need of protection. That is a finding that has not yet been made in this case, despite its age, and despite the statutory time limits in place on the making of that finding:

S.96 Where an application is made under subsection 81 (1) or a matter is brought before the court to determine whether a child is in need of protection and the determination has not been made within three months after the commencement of the proceeding, the court:

(a) shall by order fix a date for the hearing of the application, and the date may be the earliest date that is compatible with the just disposition of the application;

[16] The finding that a child is in need of protection is not based on limitless factual circumstances. In fact, any such finding is circumscribed by the CYFSA and must be a finding that is established to be within the confines of the wording of the several grounds set out in s. 74(2) the statute. In the present case, the society is relying on that finding being made for each child under the following:

S.74 (2)(b) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person's:

(i) failure to adequately care for, provide for, supervise or protect the child,

(ii) or pattern of neglect in caring for, providing for, supervising or protecting the child,

S. 74 (2) (h) there is a risk that the child is likely to suffer emotional harm of the kind described in subclause (f) (i), (ii), (iii), (iv) or (v) resulting from the actions, failure to act or pattern of neglect on the part of the child's parent or the person having charge of the child;

While it is true that a court can make a finding on whatever evidence is presented that supports such a finding, even if that finding is not one relied upon by the society, the society has the onus in a temporary care and custody situation and the court looks to the direction in which the society points to determine from what the child may need the court's protection.

[17] There is one final aspect of the law that has some application here, namely the definitions contained in the CYFSA. Specifically, the interplay between the definition of "parent" and the statutory indication of who are "parties" in a child protection case.

"parent", when used in reference to a child, means each of the following persons, but does not include a foster parent:

1. A parent of the child under section 6, 8, 9, 10, 11 or 13 of the Children's Law Reform Act.

2. In the case of a child conceived through sexual intercourse, an individual described in one of paragraphs 1 to 5 of subsection 7 (2) of the Children's Law Reform Act, unless it is proved on a balance of probabilities that the sperm used to conceive the child did not come from the individual.

3. An individual who has been found or recognized by a court of competent jurisdiction outside Ontario to be a parent of the child.

4. In the case of an adopted child, a parent of the child as provided for under section 217 or 218.

5. An individual who has lawful custody of the child.

6. An individual who, during the 12 months before intervention under this Part, has demonstrated a settled intention to treat the child as a child of the individual's family, or has acknowledged parentage of the child and provided for the child's support.

7. An individual who, under a written agreement or a court order, is required to provide for the child, has custody of the child or has a right of access to the child.

8. An individual who acknowledged parentage of the child by filing a statutory declaration under section 12 of the Children's Law Reform Act as it read before the day subsection 1 (1) of the All Families Are Equal Act (Parentage and Related Registrations Statute Law Amendment), 2016 came into force.

[18] Statutory parties are limited by s.79 CYFSA:

S.79 (1) The following are parties to a proceeding under this Part:

1. The applicant.

2. The society having jurisdiction in the matter.

3. The child's parent.

4. In the case of a First Nations, Inuk or Métis child, the persons described in paragraphs 1, 2 and 3 and a representative chosen by each of the child's bands and First Nations, Inuit or Métis communities.

[19] There are other provisions and considerations that impinge on the law that deals with the protection of children. From a comprehensive view of that law, and the implementation of that law in the courts, several principles can be distilled. In particular, in the area of temporary care and custody:

(a) The CYFSA contains a complete procedural code (with the Family Law Rules);

(b) The CYFSA speaks of an individual "child", more so than of "children";

(c) There is an overarching concern with time and delay and temporal limitations with respect to proceedings that involve children, even more so when the child is younger;

(d) Child protection cases that are not settled consensually are almost universally not complying with times limits contemplated by the statute, especially those that are contested.

(e) There is a big difference in treatment after a child is found in need of protection.

ANALYSIS

[20] The case before this court has a number of parties in its case name. This is mainly for convenience of the society who is the applicant and who names the parties in its applications. However, that does not mean that each person named is a party with respect to the application for each individual child. For example, for the child J., the mother, the father JC, and the society are the only parties. The fathers RC, DH and JPG are not technically properly named as, and are not in actuality "parties" in the case involving the child J.[6] The society consciously chooses to frame its application as it does estimating that the court can keep straight who are parties, and who are not, with respect to any given child.

[21] This is of some importance with respect to JPG. There is nothing in the evidence that establishes that JPG is a parent to (or a party to the applications with respect to) the children A., D., or J. In fact the evidence mainly points in the other direction, namely that he is not a parent to them, but only a parent with respect to his biological children K. and R. So, for purposes of this temporary care and custody hearing, I do not consider JPG as a party except to the application that involves his two biological twins. This does not preclude anyone adducing evidence that may prove the contrary to be true.

[22] What follows is that JPG has no rights as a parent to access to A., D. and J. He is not their stepfather technically, and he is a stranger to them as far as any rights of access are concerned. Therefore, unless there is a claim for access to them, and until the claimant for access by him to them satisfies the court that it is in the best interests of these children that he have access to them, this court should remain silent on his access to these three older children. I might add that these three children have all expressed views and wishes that confirm that they do not want to see him, much less have access visits with him. At their respective ages and their described levels of maturity, I have to give great weight to these views and wishes, not only with respect to the issue of JPG access, but also, as will be seen, with respect to temporary care and custody issues.

[23] It is abundantly clear that the main source of protection concern for these children, considered cumulatively, stems from JPG and his exposure to them. The secondary source of protection concern is their mother who persists in pursuing a relationship with him despite warnings from the society that he is a risk of possible harm, despite the wishes of her three older children who have clearly expressed that they do not want him in their, and her, home, and despite the admissions made by the mother herself, and by JPG that their relationship was toxic and not a good one. It may be admirable that the mother still cares for JPG, and has faith that he will be successful this time in conquering his drug addictions, and that she wants to be a support to him in doing so. However, she has a first responsibility to her children, and I agree that she is somewhat myopic as to what that responsibility requires. She has a difficult time in choosing a balance between herself as a mother and as a partner.

[24] The other source of concern suggested by the society with respect to the mother relates to her history of choices in male partners. All of them seem to have resulted in dysfunctional relationships and separations, and almost all of them has produced a child. The choice of JPG as a partner is the last in a number of choices where the tie has not been broken – yet. As for the mother's hands on care of the children, I do not see any evidence that convinces me that she is a source of risk of harm to them. She clearly is doing something right when the reports of their progress is so positive.

[25] The evidence is that JPG is not in a great spot in his own life.

a) He is a long term drug addict with crack cocaine being his drug of choice, who has had two periods free from active using, after both of which he relapsed. He currently seems to be in a period of abstinence but that is primarily because he was recently in jail, where drugs are theoretically inaccessible, and now is under house arrest within the home of his sister and brother in law who are his sureties.

b) He recently was accepted for a three month drug treatment program in Ottawa at the Booth Centre, but left after four days, apparently because the environment at this facility was not conducive to a successful outcome to his treatment there. While he is pursuing attendance at other treatment facilities, neither of these are yet confirmed or anywhere close to completed. He has not undergone an actual treatment program for his addiction, which is admittedly long term and chronic.

c) He was charged and pled guilty to several criminal charges. However, he is still facing other charges, including a robbery charge, which apparently has a trial date on August 21, 2019. Its outcome is, of course, unknown, but in the meantime he is subject to a recognizance of bail with conditions of house arrest. He cannot be outside the residence of his sister without being accompanied by her or her husband.

d) He evidently has some undiagnosed mental health issues (aside from drug addiction) and has an appointment with a psychiatrist, Dr. Anyogu, in early September 2019. Currently, he is said to be taking some prescribed but unidentified medications.

e) He has no home of his own, no job and appears to be a seasonal roofer when he does work. He is, at this time, insecure, unstable, fragile, dependent on others for most of his needs, has a questionable future until his current charges are heard and dealt with. He admits through his counsel that he had hit "rock bottom" before he was incarcerated. The best that can be said of him is that he is recovering, and, to his credit, seems to be actively trying to straighten out his life. However, the reality is that this has happened before and not with any long term success.

[26] JPG has limitations on his movements through the criminal justice system. He cannot live in the home of the mother. He cannot even be there unless he is accompanied by his sister or brother in law. He exercises access to the twin boys K. and R. at the home of his sister, all of which is supervised by them. He can continue his relationship with the mother, but must do so within the strictures which constrain him. When he and the mother lived together, their relationship was fraught with verbal arguments, conflict, volatility, anger, and separations mainly because of his drug use – but short of physical violence. This was not a happy household for the children. However, his present absence from the mother's home, his inability to be there, his uncertain future prospects of resuming a relationship with the mother, his lack of any positive relationship with the three oldest boys, and his constraints from the criminal justice system effectively render him no risk of harm, or at the most, a minimal to the children. To say that JPG is a risk of any significant harm to any child in these circumstances is frankly an absurd contention.

[27] From a temporary care and custody placement, the issue of whether the court includes a supervision order and conditions to the placement with the mother has to be decided for each individual child.

[28] A is age 17. He is almost an adult. He is a high functioning youth in his educational milieu as is evident from his reported grades at his school. He is a leader among his peers, and he has ambitions to attain further goals. He is ambitious and obviously hard working, holding down two part time jobs. I fail to see what likely harm under paragraphs (b) or (h) of s.74(2) CYFSA might befall him that he cannot protect himself against. As far as he is concerned, his mother's temporary care and custody of him can be subject to no supervision order by the society, and no terms or conditions.

[29] D. is similar in his academic progress to his older brother A. He has a medical issue that the mother apparently attends to. He also has a part time job and is very bright with high grades. He is 15 years old and is vocal about his dislike for JPG and JPG's past interactions with his mother. I expect that he shows symptoms of the typical teenager within the home and elsewhere that may occasionally be difficult to manage but these will eventually pass. I have a similar view of D. in terms of his mother's temporary care and custody of him. It should be without a supervision order and without any conditions. There is no need for supervision by the society with respect to D. He can protect himself from JPG.

[30] J. is clearly a problem. There is no temporary care and custody order that deals with him. So unless I make one, the question of whether a society supervision order attaches to his temporary care and custody is academic. I note that the society has asked in its motion that the court make an order that places J. in the temporary care and custody of his mother. Although that claim was before the court on November 7, 2018, the motion judge declined to make that order, even on a without prejudice basis, and presumably for a reason. The society took no umbrage with that judicial action or inaction, and issued its order not mentioning J.'s temporary care and custody. I am not sure that I wish to make an order now that does anything differently, and particularly so in light of the facts that show J. may be more a weekend visitor at his mother's home than to have his primary residence there. I would want more evidence, particularly from OCL counsel for J., and preferably from J.'s father as well as his mother. I make no order for temporary care and custody of J. and no society supervision order or conditions are possible. However, I am inclined to refer the question of J.'s temporary care and custody to the judge who made the without prejudice order on November 7, 2018.

[31] The children K. and R., age 2 years, is somewhat different than their half brothers. JPG is their biological father, and is a parent (and a party) in the application that concerns them as the subject children. As I indicated above, I have no concern with JPG being a source of a risk of harm to them under the current circumstances. However, I do not have much faith in the mother's judgment when it comes to JPG. While she has called the police at times, and while she may reach out to for help from other persons or agencies in her community, she also has reconciled with JPG more than once and has allowed him in her home ostensibly to visit with his sons, even knowing that he was essentially at "rock bottom". I would want some society supervision in place together with some conditions that protect these children whether the present more favourable circumstances persist or change in the future.

[32] The society wants all of the conditions that are in the existing "without prejudice" order to be repeated. I would not be averse to certain conditions being included with respect to the temporary care and custody order relating to K. and R. These include paragraph (a), (f) and (l) as set out in the current order. These are meant to address the risk and, in the words of the statute, and in my opinion, can adequately protect these two boys.

ACCESS

[33] The society's motion claim for access by JPG is dismissed with respect to A., D. and J. for the reasons stated above. He is not entitled to access to them as a parent. If the society wishes him to have access as a non-parent, it will have to satisfy the court that the best interests of the children warrant such access. I am not sufficiently naive to believe that the society wants JPG to have access with these children. It is abundantly clear that its claim for access is primarily so that it can ask the court to impose conditions and restrictions on such access. The mother of these children decides what contact these children should have with other persons and in what circumstances. She does not presently expose them to any contact with JPG that I view would also expose them to a risk of harm.

[34] The society's motion also seeks an order for interim access by JPG to his twin sons, K. and R. The submission I heard did not seem to address this access. There is an existing without prejudice order that provides for such access but subject to a number of terms and conditions. I did not take from any submission that I heard that such conditions were problematic. In fact, the evidence I heard indicates that access by JPG to them is taking place at the home of his sister, is fully supervised by persons approved by the society, and seems to be going well. I have no problem in including the same conditions, namely those lettered (a) to (j) of his present access order, in an interim access order that is not made "without prejudice". The only exception is paragraph (k) which should not be repeated as it does not deal with these two children.

[35] The existing "without prejudice" order also included an order for the mother's access to J. I have no idea where this order came from. No party, not the society and not even the mother sought this order. While it was made "without prejudice", it remains in effect. It is unusual that the "without prejudice" order does not mention custody of J. but does mention access to him by the mother. The inference is that she was not awarded temporary care and custody of him. It adds to my reluctance to meddle with any part of the without prejudice order that relates to the child J.

JUDICIAL COMMENTS

[36] The court is more inclined to be less intrusive with its choice of conditions of an interim supervision order before a finding is made that a child is in need of protection, than it is after. The sooner that such finding is made, if it is made at all, the sooner and the more sympathetic the court will generally be to a request for more intrusive conditions. The imposition of conditions often translates not only to a disruption of the status quo and in continuity in care of a child, but also to a disruption in the child's normal life. While, in some cases, it is necessary to intervene to protect the child, the court should tread only so much as such protection is reasonably necessary in imposing the conditions that it does impose.

Released: June 24, 2019

Signed: "Justice John Kukurin"

Footnotes

[1] 33. (1) Every child protection case, including a status review application, is governed by the following timetable:

Step in the case	Maximum time for completion, from start of case
First hearing, if child has been apprehended	5 days
Service and filing of answers and plans of care	30 days
Temporary care and custody hearing	35 days
Settlement conference	80 days
Hearing	120 days

[2] I assumed that the omission of a temporary care and custody order with respect to the child J. was inadvertent as the court is required to make an order for temporary care and custody all children who are the subjects of a child protection application. However, counsel for the society indicated that J. was not forgotten on November 7, 2018. The presiding judge simply did not make such an order for J. No reasons why not are found in the court record.

[3] S.94 (11) Before making an order under subsection (2), the court shall take into consideration the child's views and wishes, given due weight in accordance with the child's age and maturity, unless they cannot be ascertained.

[4] S.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;

[5] S. 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).

[6] This does not mean that a non biological father cannot be a party. It means only that before a non biological male person can be a party, the court must be satisfied that he fits within one of the many definitions under which such person can be a "parent" of the child, and therefore qualify as a party.