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.

(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.

(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.

ONTARIO COURT OF JUSTICE

CITATION: Children’s Aid Society of Algoma v. J.B., 2019 ONCJ 6

DATE: 2019·01·07

COURT FILE No.: Elliot Lake 34/15

BETWEEN:

CHILDREN’S AID SOCIETY OF ALGOMA,

Applicant,

— AND —

J.B., C.B.,

L.B. and J.X.

RESPONDENTS.

Before Justice John Kukurin

Heard on Nov 15, 16, 19, 20, 21, 22, 23 and on written submissions

Reasons for Judgment released on January 7, 2019

Anthony Marrato ................................................................. counsel for the applicant society

J.B. (mother) ................................................................................................. on her own behalf

C.B. (parent) .................................................................................................. on his own behalf

L.B. (maternal grandmother – added party) ............................................. on her own behalf

J.X. (maternal grandfather – added party) ................................................ on his own behalf

Andre Berthelot ....................................... counsel for the Office of the Children’s Lawyer, legal representative for the child

KUKURIN J.:

[1] This are my Reasons for my decision in this child protection case started in July 2015. It deals with a finding, a disposition, and access.

[2] This case was started when the Child and Family Services Act (the CFSA – the old Act) was in effect. However, on April 30, 2018, the CFSA was replaced by the Child, Youth and Family Services Act (the CYFSA – the new Act). Pursuant to s. 11 of O. Reg. 157/18, the trial in this proceeding was heard under the new Act, specifically Part V of the new Act which deals with child protection proceedings

O. Reg 157/18 S. 11. (1) A proceeding commenced under Part III of the old Act but not concluded before the day this section comes into force is continued as a proceeding commenced under Part V of the Act.

[3] The trial lasted seven days. It was lengthy but unremarkable, except for the following issues on which these Reasons make some comment:

(a) the proceeding involved a mix of affidavit and viva voce evidence at trial;

(b) the proceeding was conducted under s.93(2) CYFSA[^1] with evidence on both finding and disposition (and access), my first hearing under his new regime;

(c) the evidence of the Office of the Children’s Lawyer (OCL), whose position basically supported the society’s position, initially was intended to be presented through a social work assist. And it was. However, OCL counsel decided, mid trial, to also call the child, age 12 years, who testified viva voce;

(d) the child has filed an Answer and Plan of care, an unusual tactic for the OCL;

(e) much of the trial evidence, including a voir dire on admissibility of the child’s out of court statements, was rendered questionable in view of the child’s testimony.

CLAIMS MADE BY THE PARTIES

[4] These reasons are much more comprehensible with some explanation of the context. The child is now age 12. She was apprehended from her mother when she was age nine. The child’s biological father is deceased. The child was living with her mother and the mother’s boyfriend, C.B., whom the society persists in referring to as the child’s ‘stepfather’, and whom it has named a party in this proceeding, obviously believing he meets the statutory definition of a parent.[^2] The maternal grandfather and maternal grandmother were not initially named as parties in the society’s application, but have been added by court order made during the course of this case at their request. The child has legal representation through the OCL and she appears to be acting ”as if she were a party”[^3] in this case.

[5] The society has the onus of, first of all, satisfying the court with admissible evidence that the child is a child in need of protection. If it meets this threshold, it next has to persuade the court that the court should make the disposition order that it is seeking. Next, the society has to persuade the court that the orders it is seeking with respect to access are those that the court should make.

CLAIMS OF THE PARTIES

[6] The society seeks a finding that the child is in need of protection under

S.74(2)(a), (a)(i) and (a) (ii) – she has suffered actual physical harm

S.74(2)(b), (b)(i) and (b)(ii) – there is a risk she will suffer physical harm

S.74(2)(f) –the child has suffered emotional harm as described in this clause for the reason set out in this clause

S.74(2)(h) – there is a risk that the child will suffer emotional harm as described in clause (f) for a reasons listed in clause (h).

The society’s initial disposition claim was for nine months wardship (now called temporary society care), but has been amended to one of placement with the maternal grandparents subject to a three month supervision order with a number of conditions. The society is also seeking an order for access to each of the mother and stepfather subject to a number of conditions, probably the most important of which is that any such access be subject to the wishes of the child.

[7] The mother and stepfather both oppose any finding that the child is in need of protection. The mother wants the child returned to her if they are successful in opposing the finding, but if a finding is made, the mother seeks maternal access. The stepfather has no claims in his Answer for anything.[^4]

[8] The maternal grandparents want an order of deemed custody in their favour. They want access to the child if they are not successful in obtaining custody. They have no formal position on a finding in their pleadings or in their submissions.

[9] The child, in her Answer, does not take any position on a finding that she is in need of protection. She does, however, in her submissions. She does wish to continue to reside with the maternal grandparents. Her preference is that it be under a deemed custody order under s.102(1)[^5], failing which she asks that it be under a supervision order.

FINDING THAT THE CHILD IS IN NEED OF PROTECTION

[10] The society has relied on a number of grounds for a finding that the child is in need of protection. A court may find a child in need of protection even on grounds that a society fails to indicate it is relying upon. Here, the society may be guilty of over-pleading in terms of grounds it does rely upon. By the time of trial, a society should be fairly certain it can prove its grounds. At the commencement of this trial, the society indicated to the court, and to the other parties, that it was still relying on all of the grounds in s.74(2)CYFSA that it had initially indicated, and it would attempt to prove that Ap. was a child in need of protection under all of them.[^6]

[11] Section 74(2)(a) – Actual physical harm suffered by the child is the foundation of the grounds in clauses (a), (a)(i) and (a)(ii) of s.74(2) CYFSA[^7]. As far as I can tell from the evidence, the child has not suffered any physical harm at any time, or at all. The society has consistently maintained that she did, and has steadfastly refused to abandon these grounds right up to and throughout the trial. It led no evidence that the child actually suffered any of the physical harms of the type described in clause (a) of s.74(2) CYFSA. It did not even argue that the child had. This is irresponsible behaviour on the part of a society, particularly when it knew, or should have known, that it did not have the evidence to support such a finding.

[12] Section 74(2)(f) – With respect to clause (f) of s.74(2) CYFSA[^8], this ground is proven only if the child

firstly, actually suffers at least one of the emotional harms that are described in the subsection, and

secondly, reasonable grounds exist to believe that the emotional harm suffered by the child is as a result of the actions, failure to act, or pattern of neglect of the child’s parent or of the person having charge of the child.

[13] The society has not adduced any evidence from any mental health professional that the child has suffered any emotional harm. Moreover, if the child has suffered emotional harm, the society has not specified in its submissions that any such emotional harm has been demonstrated by any one or more of the symptoms listed in subclauses (i) to (v) of clause (f). It has failed to show with any admissible evidence that the child exhibited any of such symptoms, with the possible exception of anxiety, and more importantly, that they were “serious” symptoms. The child was a viva voce witness, and virtually no questions were asked of her with respect to her suffering any emotional harm.

[14] Moreover, the society produced over a dozen medical reports with respect to the child, not one of which mentioned any of the emotional harm symptoms in clause (f). The child also attended for counseling. The counselor’s closing report is interesting but not very helpful in providing evidence to support emotional harm suffered by the child. The report indicates that Ap. did not engage in the counseling process and was not interested in sharing her past experiences. The counseling was more with the child’s maternal grandparents and helping them to cope with some of the child’s problematic behaviours and compliance with their house rules. Ultimately the report concluded that the child’s overall needs scores were at the minimal level at start, and even lower at end of counseling, a level that is described as “may not need ongoing services”.

[15] The child’s school reports depict an average to better than average academic performance, with no mention of any emotional harm she was suffering. Finally, the society has failed to show with any reliable evidence that there were reasonable grounds to believe that there was any connection between the actions, the failure to act, or any pattern of neglect on the part of the mother, or of the stepfather and any emotional harm symptoms, even if they did not rise to the level of being “serious”. The society has failed in persuading the court that the child was in need of protection on the grounds in s.74(2)(f).

[16] Section 74(2)(h) – The society also relied on grounds in s.74(2)(h) CYFSA[^9] for a finding that the child was in need of protection. This is a ground that involves risk of emotional harm to the child. Therefore it looks to the future. The type(s) of harm, the degree of the harm, and the causal connection of the harm to the mother’s or stepfather’s conduct, pre-requisites for a finding under (h) grounds, are all necessary for the society to prove to the court with respect to this ground. Although no actual emotional harm symptoms are needed to be shown, the society cannot rely only on the existence of reasonable grounds to believe that a risk exists. This ground requires the society to show that the risk does exist, and to do it on the balance of probabilities. “Risk” has been said to mean “more likely than not”. I do not believe anyone on the society’s witness list has the credentials to provide the kind of evidence that would persuade this court that such a risk exists. Frankly, the child has been in the mother’s care through several horrific incidents that the mother experienced, and she apparently did not suffer any of the emotional symptoms required by clause (h). Why would the court believe that there is a risk of this in the future when the child is now three years older, much more mature, and has support and assistance that she did not have when she was with her mother? In addition to the foregoing, the society did nothing to show that the emotional harm would be demonstrated by at least one of the symptoms listed (other than perhaps anxiety), and that it would be a serious demonstration. Frankly, I believe the society has bitten off more than it could chew in pursuing this ground without having a qualified mental health professional who has worked with the child. I might go so far as to say that an expert might be necessary to prove this ground for this particular child.

[17] Section 74(2)(b) – This leaves the grounds under clause (b) of s.74(2)[^10] CYFSA. This ground involves a risk of physical harm to the child. The risk is that the child is likely to suffer physical harm. “Likely” to suffer has the implied connotation of “more probable than not”. The type of physical harm required by this section is not specified.[^11] Theoretically, it may be any kind or degree of harm that is physical in nature. The fact that the type and degree of physical harm is not specified in clause (b), I suggest, makes it easier for a society attempting to establish a finding on this ground to do so.

[18] There are three separate circumstances which may qualify for a finding on (b) grounds. The risk may be a likelihood that

(a) the physical harm is inflicted by the person having charge of the child; or

(b) the physical harm is as a result of the failure of the person having charge in adequately caring for, providing for, supervising or protecting the child; or

(c) the physical harm is a result of a pattern of neglect by the person having charge in caring for, providing for, supervising, or protecting the child.

[19] The person having charge of the child prior to and at the time that this proceeding was commenced was the child’s mother. I do not believe that the stepfather had charge of this child in the sense of the meaning that having “charge” connotes. He was living with the mother, but she was clearly the person who acted as the person who had charge. She made decisions and was responsible for the child. The stepfather clearly had a relationship with the child, but it was, on the evidence, not one that included “having charge”. The child herself testified that she did not ever consider the stepfather to be her parent or, more specifically, her “stepfather”. In fact, there is an argument that can reasonably be made that the maternal grandparents had charge of the child, as much as did the mother. The child spent almost all her weekends with her grandparents in the time leading up to her removal (apprehension) by the society from the mother. She had spent much of her childhood with them and they were making decisions for the child, some contrary to the mother’s wishes. The person who had charge is important for the purposes of clause (b) because it this person who the society must prove was at fault in one of the three ways outlined in this clause.

[20] I do not conclude, based on the evidence, that there was a risk, that more likely than not, the child would suffer physical harm inflicted upon her by her mother under clause (b). Firstly, there is no evidence that the mother actually did so in the nine years from the child’s birth to her apprehension. The past is a good predictor of the future. Secondly, the mother has absolutely no criminal history of violence that she has inflicted on others, especially not children. Thirdly, the maternal grandparents were very involved in the child’s upbringing from her birth. If the mother had ever inflicted physical harm on the child, I expect they would have known about it and would very quickly have made complaints to authorities including the police and the society, and may even have sought custody. They never did. Their relationship with the mother and her relationship with them was not a good one. Fourthly, the child did not allege at trial – when she was age 12 and could clearly articulate and recount past events – that the mother had inflicted physical harm on her. The society has failed to meet its onus on this circumstance of clause (b).

[21] Clause (b)(i) of s.74(2) CYFSA is the more common circumstance that leads to a finding that a child is in need of protection. This may be because the requirement that the risk of physical harm to the child is either caused by or resulting from the failure of the person having charge in doing the things required by clause (b)(i). The society’s onus is to show, with admissible evidence, to the standard of the balance of probabilities, that this risk of physical harm exists. In this case, it is the mother’s failures that must either cause or result in the risk of physical harm.

[22] The reality is that the child has never actually suffered any physical harm. From a historical point of view, the society has no evidence of actual past physical injuries or pain, or suffering to support an inference that a risk exists for any of these in the future. The society however has adduced considerable evidence that it claims establishes the existence of factual circumstances that demonstrate the failure of the mother to adequately care for, provide for, supervise or protect the child. From these, it argues that an inference can be drawn that there is a risk that the child is likely to suffer physical harm if she is returned to her mother’s care.

[23] What are these factual circumstances? Well, they are several, overlie one another, and share some basic features. Essentially, they fall in three categories: substance abuse, domestic violence, and a poor choices of males with whom she forms relationships.

(a) Drug and alcohol abuse

[24] The mother’s substance abuse is mostly, but not totally, historical. The mother had left her family home in Elliot Lake and eventually ended up in Hamilton. She had a son who was taken by his father (H.B.) when he relocated to British Columbia, where both still reside. Apparently, he is now an adult. She also had another child, a daughter, Am., who was raised by a half-sister (P.) of the mother in Hamilton. There was a lengthy court proceeding in Hamilton between the mother and her half-sister which resulted in the half-sister being awarded sole custody of Am. Ultimately, Am., as a teen, chose to live with her father, and she moved to British Columbia where she currently resides. The mother thereafter entered into a relationship with W.T., a drug user. They both used drugs. He went to prison. Ultimately, he died. She had become a crack cocaine addict and found out she was pregnant with his child, the child who is the subject of this proceeding. She was, she admitted, at rock bottom when her parents basically rescued her, and brought her, reluctantly I might add, to live with them in Elliot Lake.

[25] This was about twelve years ago. In the intervening years, there is sporadic evidence of the mother’s use or abuse of substances. In March 2016, the mother underwent a self-reporting drug alcohol assessment at the request of the society. The assessment report was introduced at trial. It indicates that the mother then had a low level of alcohol dependency in the prior twelve months. It also concluded that, over the same period, the mother had a low level of problems relating to drug use, namely cannabis marijuana. It was during these twelve months that the child was apprehended from her care.

[26] That the mother did not discontinue using alcohol is also evident from police observations recorded in police occurrence reports, also filed as trial evidence. Mention is made “both parties intox, argument ensued” with respect to the mother and another person (on Nov 22, 2008), that B. [the mother] and another had been consuming alcohol (on March 20, 2010), and the mother’s own testimony at trial of the stepfather’s assault on her that she had had “two beer” at the time of the assault. The evidence of recent alcohol abuse by the mother is not overpowering, and she testified that she rarely, if ever, drinks excessively due to a prescribed medication she takes which is not very compatible with alcohol. The child, however, described observing her mother and the stepfather drinking beer, enough, at times, to get drunk. It is clear that the mother does drink alcohol, and occasionally enough alcohol that she becomes inebriated. She has been involved in several questionable incidents where alcohol has been a factor.

[27] With respect to drugs use, the mother admitted to occasional cannabis use. So, for that matter, did the stepfather with whom she was, and is, presently cohabiting. The stepfather candidly admitted to the society that he also gave some marijuana to the maternal grandfather and that they smoked it upstairs at the home of the maternal grandfather. The child indicates that the stepfather smoked “weed”.

[28] More to the point, the child describes an incident in which the child observed her mother take a “baggie” from a metal can which she kept in her purse, which contained a white powder – which was not baking powder – saw her put it on a table, and was sniffing it. The mother noticed the child observing her and told her to “get out”. It is difficult to interpret this description of this event in any way other than that the mother was using drugs at the time. What is more important, from an evidentiary point of view, is that the mother said not one word to indicate that this was a complete fabrication, or that she was doing something other than what the evidence showed she was doing. At most, the mother sought to attack her daughter’s credibility by suggesting that the daughter was confusing this reported observation with something similar in a movie she had been watching. Although, the date when this incident occurred was not recounted precisely, it clearly took place when the child was a pre-teen, likely shortly before her apprehension. From the court’s point of view, this evidence is all the more significant in light of the fact that the mother was a self-admitted crack cocaine addict before she arrived in Elliot Lake. The child also described “jam sessions” at her home with invitees of the mother and stepfather where both cocaine and marijuana were being used. I must discount this somewhat as other witnesses at such jam sessions denied that drugs were being used.

[29] I do not believe, on the evidence, that the mother was trafficking in illegal drugs from her home. The society’s evidence is sketchy and not at all persuasive. However, she and the father clearly had drugs that they used, and the inevitable question arises of where they got these drugs in a country where their possession was illegal. The stepfather is not lily white in his history with alcohol or drugs. His criminal record, also in evidence and uncontradicted by him or by anyone, shows three drinking and driving offences, for the last of which (in 2009) he received a ten year driving prohibition expiring in November 2019, which explains why he does not currently drive a motor vehicle. More worrisome is his conviction in 2008, admittedly somewhat dated, for possession for the purpose of trafficking.

[30] From a risk of physical harm perspective, the combination of alcohol use, and drug use, particularly in circumstances where police involvement took place, is an environment that is fertile for physical harm if a child is also present.

(b) Domestic violence

[31] Drug abuse and alcohol consumption are hardly unusual. By themselves, they do not necessarily give rise to a risk of likely physical harm to a child who is being raised in a home where they are present. They are often catalysts for another undesirable element, namely domestic violence. This is the main concern with the child remaining in the care and custody of the mother.

[32] Incident of June 27, 2015 – The incident that precipitated the apprehension of the child in this case was one of domestic violence. The stepfather and the mother were out socially. Alcohol was being consumed. She was apparently recounting something to their friends. The stepfather kept interrupting her. She finally had enough and told him to butt out or to shut up. He was offended and left, walking to their home. This effectively ended the social get together. The mother drove home, passing the stepfather on the way. When he arrived at their home, he demanded some cigarettes, became argumentative, and overturned contents of a drawer onto the floor. The mother then attempted to call the stepfather’s mother on her cell phone, but the stepfather threw the cell phone to the floor and stomped on it. Then, when the mother began remonstrating and arguing with him, he grabbed her by the hair, dragged her outside, and told her to stay out and not come back. Both had been drinking alcohol earlier that evening. The mother went to neighbour’s for help. The police were called and attended. The mother was taken to the police station but would not give a statement that night. However, the following day, she attended at the police station and gave a comprehensive statement of what had transpired the night before, a statement that was video-recorded with her consent, and was ultimately made a trial exhibit. The mother wanted the stepfather charged and the stepfather was charged. He was put under a bail condition of no contact with the mother until his trial.

[33] While the above recounted facts are not necessarily completely accurate, they fairly represent what I consider to be an incident of domestic violence. There were variations or different versions of what happened depending on who was giving them, and when, but the basic facts remain. The mother was physically assaulted. She had clumps of her hair pulled out by the father. She had scrape marks on her knees and elbows from being dragged outside. Her cell phone was destroyed. She was prevented from making a call for assistance by the stepfather. Ultimately, the father had his trial. The mother was the crown’s main witness. At trial, she claimed that her statement to police was coerced, that she was suffering from PTSD (Post Traumatic Stress Disorder) at the time of the incident, and her recollection was adversely affected by her condition. She claimed she didn’t remember much and it was all jumbled with other previous incidents she had experienced. The father was acquitted. They thereupon reconciled whatever there was to reconcile and resumed cohabitation. This is not an unusual sequel to an incident of domestic violence between spouses.

[34] From a credibility standpoint, the mother’s videotaped statement was the most reliable version of what took place. It was not a statement she gave when she was still feeling the effects of the alcohol she had admitted drinking, or the manhandling she experienced in the incident. It was a statement given the next day after she had a chance to reflect and to think about what had happened. It was a statement that she gave voluntarily, after several cautions about veracity, and in the cold light of day. She provided a narrative that was believable and internally consistent at the time. I believed what she said in this videotaped statement. She was less than persuasive in attacking this statement.

[35] Moreover, the mother attended at the hospital, and the hospital record of her attendance corroborates her reason for attending (domestic altercation, partner dragged patient around by the hair and pushed her around), her physical complaints (neck pain, multiple bruises, spinal tenderness), and physical evidence of effects of violence (abrasions) especially to knees and elbows but also to other areas (biceps, forearm, chest and posterior calf). These are very consistent with her descriptions of what took place as recounted in her video statement, and are not consistent with her alternative explanations of what had happened.

[36] The mother, in her trial testimony, attempted to minimize what happened during this incident. She could hardly deny that it had happened because she told too many people that it had. The most she could do was to cast doubt upon the accuracy of what the society’s evidence depicted as having happened. For example, she claimed she had a memory that was not trustworthy because of her condition of PTSD. Unfortunately, there was no evidence from her of any formal diagnosis of PTSD by anyone. At most, it may have arisen from a passing comment of the mother’s counselor. The mother also attempted to show that she had perhaps provoked the stepfather by biting him. There may well have been a bite mark but no explanation of how and when and in what circumstances it came about. The father did not testify. The mother did not explain, and if she had, her explanation would be suspect in light of her allegation of suffering PTSD.

[37] What was noteworthy about the incident recounted in the mother’s statement is that the child Ap. was not present for any part of what took place. She was at a sleepover being cared for by a friend of the mother. The child learned what had transpired from the mother, herself, who recounted her version of events within a day of their happening. Hearing that her mother was assaulted would affect any 12 year old child. However, Ap. had been through similar experiences before. This was not new to the child, but it appears it was the final straw.

[38] A final straw is a metaphor that relies on the existence of prior straws. In fact, the society’s evidence lays the factual foundation for the court to infer what these other straws were all about. They all involve domestic violence or at least, domestic discord.

[39] Knife incident – the child recounted an incident she witnessed when she was living at her […] Boulevard home. The mother and stepfather were arguing in the morning. The stepfather held a knife to the mother’s throat. This was recounted by the child to a friend at school and made its way to the school principal. The child exhibited fear of the stepfather after observing this incident.

[40] […] St. incident – the child described another earlier incident where the mother and stepfather had too much to drink and had gotten into an argument. The mother and child sought refuge at K.T.’s home, a neighbour. The stepfather showed up and the glass in K.T.’s door broke, perhaps accidentally, perhaps not. The child claims she had seen the stepfather pin the mother on the ground in front of K.T.’s home. K.T. claims the stepfather left. The police arrived later. The mother and child ultimately left and went elsewhere. Clearly there was domestic strife between the mother and stepfather sufficient for the mother to seek refuge elsewhere and presumably for police involvement.

[41] Incident where mother hiding from stepfather – the child recounted an incident where the mother hid in the child’s bedroom as the stepfather had threatened to smash the mother’s car. The stepfather’s mother had to intervene to calm the stepfather down.

[42] Incident on Sudbury trip – the child recounted her first hand observation from the back seat, of the stepfather hitting the mother while she was driving from Sudbury, causing her to strike her face on the steering wheel and almost hitting another vehicle on the road. The mother claims that the child was lying when she testified to this at trial. However, it was an incident that the child had recounted much earlier on to society personnel. The child was not shaken under cross examination on her account of this incident.

[43] Incidents involving other male partners of the mother – The mother was assaulted by S.D., with whom she broke off her relationship in 2010. Unhappily, he continued to make life miserable for her and several incidents required police intervention. She subsequently formed a new relationship in 2011 with F.L., an individual that the mother conceded was very violent, which relationship also went south, but not before he had trashed her apartment. The effects of the trashing was a firsthand observation by the child who had been brought there by her grandfather. E.F., a subsequent boyfriend of the mother, was the most violent with her. He banged her head on the pavement which required three stitches at the hospital. He also assaulted the mother’s friend M.D. who had intervened in his assault on the mother. He was subsequently charged and convicted and incarcerated. All of the foregoing were relationships that the mother had entered into since her return to Elliot Lake and since the birth of Ap. The stepfather, C.B., was the most recent.

(c) Poor Choices in Male Relationships

[44] And this leads to the mother’s choices in her relationships with males, either as partners, or as boyfriends. It is not an enviable record she has amassed. At the outset, it should be noted that domestic violence generally involves the male partner as the perpetrator and the female partner as the victim. Generally, the victim should not be blamed for actions of someone else over which she may not have had any control. However, this concession to a female victim must necessarily weaken the more often and the more consistently she makes choices to form relationships with unsuitable partners. This becomes especially so when she is no longer on her own but has the responsibility of a child in her care who is exposed to such males.

[45] H.B. – The mother’s record stems back to her early adult years when she was in a relationship with the biological father of her first two children. Not much evidence was provided of her life with him but he obviously left her, surreptitiously moving to British Columbia with their son, and they seemed to have no relationship in the many years since. In fact, she testified that he was involved in an incestuous relationship and suggested that this may be why he left Ontario.

Steve (surname unknown) – This relationship didn’t last long. She and Steve were both drug users according to the mother’s niece As. who was at their home, babysat the mother’s older daughter Am., and personally witnessed their drug use. The mother lost her job, lost her home, lost her daughter Am. to her half-sister, and became addicted to drugs, She and Steve split. Steve has since died.

W.T. – Her next relationship was one marked by crack cocaine drug use and addiction for both of them. He was convicted of robbery and went to jail. On his release, he went back to drugs. He died, according to a medical certificate, from an overdose of a concoction of drugs. By this time the mother was pregnant with Ap.

S.D. – The mother moved to Elliot Lake and stayed with her parents for a year or so before she got her own place with Ap. The mother was warned in advance by her friend, Ms L., that S.D. was “bad news”. Nevertheless, she engaged in a non-cohabitation relationship with him until he raised a fist to her. She broke it off, but S.D. was not finished with her. S.D. eventually assaulted her throwing her into a closet, stealing her purse and keys. She went to the hospital following that assault. S.D. continued harassing the mother, once in a drunken state with the child present.

F.L. – Her next relationship F.L. ended poorly. She and Ap. cohabited with F.L. He completely trashed her residence. The mother was devastated. Ap. apparently witnessed the aftermath of the trashing. This is according to both Ap. and her grandfather. The mother claims she did not. I believe Ap. and her grandfather. Police occurrence reports indicate that the mother and F.L. had a relationship that involved threats, violence and abuse of alcohol. She reported to police that he was very violent. He was, in the mother’s words, “a bad choice”.

E.F. – The mother next dated E.F., and they appear to have cohabited. Ultimately, he brutally assaulted her, banging her head on the pavement. She went to the hospital and was treated. He had a prior record of domestic assaults before the mother met him. He was eventually arrested, charged with assault causing bodily harm, convicted and incarcerated.

C.B. – The mother met and began socializing with C.B. Eventually, they lived together with Ap. While their life was not a model one, it seemed that she had finally found a partner with whom she could have a satisfying relationship. But the events recounted in paragraph [30] above seem to belie that it was all that rosy.

[46] The evidence, primarily of the society but supplemented with Ap.’s testimony, and the voluminous documentary evidence filed by the society makes it quite clear that the mother engaged in relationships with a series of unsavoury individuals, none of whom lasted very long, and almost all of whom had a pejorative impact on the mother. While I appreciate her comment that “none had a sign indicating that he was a beater”, this wears a little thin when the same thing happens over and over again. What is clear from the evidence is that returning the child to the mother would place her in a situation that would constitute a risk of likely physical harm. The mother so far has suffered the physical harm from partners. It would not take much for Ap. to be the victim if she were in an environment involving alcohol, drugs, domestic strife, and if history repeats itself, violence.

[47] For the above reasons, I make a finding that Ap. is a child in need of protection under s.74(2)(b)(i) CYFSA. It is not necessary that the society convince the court that the risk is a substantial one. The mother as the person who had charge of Ap., has placed Ap. into circumstances that involved risks of physical harm to her. There is no assurance that the mother will not do so in the future.

[48] Section 74(2)(b)(ii) – The factual history, admittedly abbreviated, in my discussion under s.74(2)(b)(i) above also shows a pattern of the mother in choosing relationships with males who, for the most part, showed not only a potential for, but an actual demonstration of domestic violence. Also involved were alcohol or drugs, or both, and this overlaid the domestic violence. By choosing these relationships, the mother demonstrated a pattern of neglect in, at least, protecting the child, and thereby placed her at risk of likely physical harm. I also find the child in need of protection under s.74(2)(b)(ii) CYFSA.

[49] In summary, this court finds Ap. to be a child in need of protection under clauses (b)(i) and (b)(ii) of s.74(2) CYFSA. It does not make a finding under clauses (a), (a)(i), (a)(ii), (b), (f) or (h) of s.74(2) CYFSA.

DISPOSITION

[50] The finding now made that the child is in need of protection, the court moves on to what order or orders the court makes by way of disposition. Disposition incorporates both the element of placement as well as the circumstances surrounding that placement. The placement options here involve a return to the mother, or a placement with the maternal grandparents, or a placement with the society (which may result in foster care). The circumstances of the placement include such things as whether a protection order will be in force during such placement, the terms or conditions of such order, the duration of such placement or such terms or conditions, or the nature of the placement order itself. The choices are:

– the mother, supported by the stepfather – seeking a return of Ap. to her care, preferably with no society supervision, but if necessary with minimal supervision;

– the maternal grandparents, supported by OCL counsel for the child – seeking joint care and custody under s.102 CYFSA;[^12]

– the society, ostensibly seeking a protection order under s.101 CYFSA – is actually asking the court to make a custody order under s.102 in favour of the maternal grandparents; and

– the child, through her counsel, is also seeking an order under s.102 CYFSA placing her in the joint custody of her grandparents.

[51] The criteria for making the appropriate disposition are set out in the CYFSA, specifically in s.74(3)[^13]. The court must consider them all

[52] S.74(3)(a) The child’s views and wishes – Under the new Act, these are much more emphasized as a consideration than under the old Act, generally, and specifically as a consideration for the court in applying the best interests test. These are subject to being able to be ascertained. They are also to be given due weight in accordance with the age and maturity of the child expressing them.

[53] Ap.’s views and wishes were initially sought to be presented by way of hearsay through society workers, her grandfather, a social worker assisting Ap.’s OCL counsel, and through school personnel. From an evidentiary point of view, it was argued that statements made by Ap. to other persons were reflective of her state of mind as of the point in time that they were made, and therefore represented an exception to the rule against hearsay. In fact, more than a day was consumed in a voir dire that led to court rulings as to the admissibility of certain out of court utterances made by the child to others. To the extent that these rulings are part of the court record, they may have some utility. However, such statements are cumbersome, restricted to times they were made, and relate to “state of mind” of the child rather than to specific views and wishes. Their utility was marginal at best, and became superfluous when Ap. decided to testify viva voce. No amount of second hand evidence can substitute for that directly from the horse’s mouth.[^14]

[54] As to the first pre-requisite, such views and wishes were very ascertainable, and, in particular, were tested by cross examination, a further desirable aspect to all trial testimony but clearly so for views and wishes of the child.

[55] The court is admonished by the CYFSA to give “due weight” to the child’s views and wishes having regard to the child’s age and maturity. While determination of age is easy, the court must make some determination of maturity as well. It is trite to say that 12 year old girls may vary widely in maturity. The court had to make an estimation of Ap.’s maturity, and factor this estimation into what “due weight” it warranted in her evidence as to her views and wishes.

[56] Judges are not usually blessed with abilities to gauge the maturity levels of pre-teens, and I confess that I number among these. Judges, however, are faced with myriad witnesses and must arrive at some estimation of their capacities as witnesses. Among these are the ability to remember events, to recount events, to describe events with detail, to be consistent in what they report to the court, to maintain objectivity, or where appropriate, to display emotions, to maintain consistency in what they may have said previously, to respond appropriately to cross examination, and to admit mistakes and make corrections when necessary. In the case of the child Ap., I admit I was impressed with her performance in testifying in court, particularly as she was cross examined by both her own mother and the stepfather, who were clearly somewhat adverse towards her. I found the child to be reliable in her viva voce testimony.

[57] How the child testified is part of what goes into the “due weight” that the court gives. The other aspect of her testimony is what she said. I cannot repeat everything that the child said, but in a nutshell, her views and wishes are:

1. She wishes to (continue to) reside with her maternal grandparents.

2. She wishes to visit with her mother. However, she wishes to control when, where and in what circumstances these visits take place, and what the visits will be.

3. She does not want to visit or have any contact with the stepfather. In fact, she resents his being referred to as her “stepfather”, which she denies he ever was.

4. She wants the mother to leave the stepfather and end her relationship with him.

5. She wants the mother to stop picking as male ‘partners’ the kinds of persons she has consistently chosen in the past.

6. She wants her mother to stop drinking and to stop using drugs before they do her in.

7. She wants no more of the drama she and/or her mother have experienced in the past

8. Unspoken, but clearly inferable from the child’s testimony, she wishes the mother to stop calling her a liar and to listen to what she says. She also wants the mother to stop lying to her.

9. She wants the mother and the maternal grandparents to have a better and healthier relationship.

10. She does not want the society controlling her life, in particular, whom she must spend time with.

[58] In addition to her own testimony at trial, the court has to consider the Answer and Plan of Care that the child has filed to the Application of the society in this case. The Answer is a pleading. It was signed by the child and obviously prepared by her OCL counsel. Answers of subject children in child protection cases are, in my experience, as rare as hen’s teeth. They ought to be utilized more by OCL counsel for a number of reasons:

– They are able to set out the child’s position or the child’s counsel’s position to all claims made by each party in the proceeding, thereby clarifying the issues among them.

– They can set out the child’s views and wishes quite clearly and distinctly, thereby avoiding the problem of attempting to establish these by hearsay evidence of other witnesses and by attempting to circumvent the rule against hearsay by admissions as to state of mind, which have inherent limitations.

– They save a lot of time, and particularly earlier on in the proceeding, potentially assisting in settlement or at least avoiding the three or more year old case (as here).

– They are a means to ascertain views and wishes of a child with respect to interim issues in a case such as temporary care and custody[^15] and interim access.

[59] The child was clear as to her wishes in her Answer and Plan of Care. These coincided with her expressed views and wishes in her trial testimony. In terms of judicial weight, I assign a great deal of weight to Ap.’s views and preferences in my assessment of best interests of this child. Her above list of wants looks more like a letter to Santa Claus which this court is not. It can deliver on some of these, but clearly some are beyond this court’s competence.

[60] S.74(3)(b) – This consideration is not applicable as Ap. is not identified as being a FNIM (First Nation, Inuit or Metis) child.

[61] S.74(3)(c) – This clause of s. 74(3) contains a non-exhaustive list of eleven considerations which, if applicable in the case before it, the court must consider. At the outset, the court often relies on the parties or their counsel to outline what particular consideration applies, what is the evidence underlying such consideration, and how it should apply in terms of the best interests test. Regrettably, the mother and the stepfather were not represented by counsel and their submissions were not very helpful in terms of the mandate of the court under this clause.

[62] The child’s physical, mental and emotional needs and the appropriate care or treatment to meet those needs. [subclause (i)] – The evidence is that the child has been living with the maternal grandparents essentially since birth. At first with her mother in their home and after the mother and child found their own place, the child often stayed overnights with her grandparents, often for extended stays. Most recently, she has been with them continuously for the past three years, at first by way of a ‘kin in care’ placement, but currently as a court ordered temporary care and custody placement.[^16] As caregivers and custodians, the maternal grandparents have always provided for Ap.’s needs in all spheres, and Ap. candidly admits this to be true. Ap. Has, at times, not been provided by her mother with the consistency of care that has met her mental needs and emotional needs, particularly her need to feel safe and secure. The grandparents have often been a place of refuge for Ap., and for her mother as well, from dangers in Ap.’s home environment.

[63] The child’s physical, mental and emotional level of development – [subclause (ii)] – Ap. as a pre-teen is testing parental authority and limitations even at the home of her grandparents. For example, her understanding and use of hand held digital devices is clearly superior to that of either grandparent, and Ap. has used this to her advantage. This is not unusual and the grandparents have had the help of the society in coping with this behaviour. While it is more likely than not to continue, it does not seem to be excessive pre-teen behaviour. What is clear is that the child has a mutual loving and affectionate home with her grandparents where she feels safe and secure. Not so with her mother who has had a series of residential moves, who has lived with and/or permitted contact by unsuitable persons to Ap., who has placed Ap. in situations that could reasonably have resulted in physical harm to the child, and with whom Ap. has often been in conflict. In comparing the grandparents with the mother, they clearly come out ahead when considering the child’s current developmental levels. Moreover, the mother has never been successful parenting her other children through the stages that Ap. is at now. As Ap. has so aptly expressed, she does not need the “drama” that is inherent in her mother’s life.

[64] The child’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression – [subclause (iii)] – Frankly, this consideration is not very applicable in this case. The mother and maternal grandparents share all of the aspects of this consideration. The single advantage is to the grandparents, and this is in terms of family diversity. The extended maternal family members seem to be more cohesive with the maternal grandparents than they are with the mother who seems more estranged from them due to her previous history. From the point of view of the child, her relationships with extended family is more likely to develop and be fostered with her residing with her grandparents than with her mother.

[65] The child’s cultural and linguistic heritage – [subclause (iv)] – This does not seem to have any application in this case.

[66] The importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family – [subclause (v)] – The child currently has a dysfunctional relationship with her mother. The child does not have a secure place as a member in the mother’s home. In fact, she refuses to live with the mother so long as the mother remains with the stepfather C.B. The mother also attends university classes in Sudbury three days per week. The child would be in the mother’s home with the stepfather while the mother was away, clearly an arrangement the child would not abide by. The mother had no other alternative to offer. In contrast, the child has a very positive relationship with her grandparents as evidenced by her loving letter addressed to her grandfather (Trial Exhibit 9). She admits she is happy in her grandparents’ home, and that she feels secure with them as her caregivers and custodians. This consideration clearly favours the grandparents over the mother.

[67] The child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community – [subclause (vi)] – The child’s closest relationships and emotional ties are clearly to her maternal grandparents. She has a problematic relationship with her mother and her emotional ties with her are frayed. This is evident from descriptions of mother-child access visits where the access supervisor expressed how badly she felt for the mother who was trying desperately, but unsuccessfully, to connect to her daughter on an emotional level. The child’s out of town relatives are also family ties, admittedly more distant, but likely to be cultivated through her grandparents.

[68] The importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity – [subclause (vii)] – The continuity is currently a continuous one of over three years in the home of Ap.’s grandparents. This, however, is not the entirety of continuity as the child resided with them (as well as the mother) full time for about two years after she was born. Even after the mother moved out, the child often stayed with her grandparents, at times for extended periods and almost every weekend. The grandparents have resided in the same home for many years, a home with which the child is familiar and comfortable. In fact, the discontinuity was more with the homes that the mother made for the child. There were at least a half dozen different addresses where the mother lived in Elliot Lake. At least two were cohabitations with men with whom she separated following incidents of violence. The disruptions in continuity with the mother clearly had a negative effect on the child as she begged her mother not to get involved with, or not return to a relationship with certain individuals. The mother would often promise but would renege on such promises. Continuity of care is much more a certainty with the grandparents than it is with the mother.

[69] The merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent – [subclause (viii)] – This consideration is somewhat deceptive. Officially, the society’s Plan of Care advocates a three month protection order (placement with grandparents subject to society supervision) with access to mother and stepfather. In its submissions, however, the society was supporting a deemed custody order in favour of the maternal grandparents. This is the same relief sought by the grandparents, and also by the child. Accordingly, it is the merits of this plan that should be compared to the mother’s plan which involves a return of the child to her care. The mother’s plan is not viable for two reasons. The first is that the child rejects it. At her age, this is a major factor as the court is extremely reluctant to force a 12 year old child to live where she does not want to live. The second is that the same circumstances exist in the mother’s home today that existed when the child was removed from her care. The mother has done nothing to change the circumstances, and the court has found that these circumstances form the basis for the finding that the child is in need of protection. Apart from these two major flaws, the mother has not provided any details of her plan such as who will care for the child while she is at school in Sudbury and whether the stepfather, with whom the child objects to having contact, will continue to reside with the mother, and /or whether she will still be in a relationship with him. At present, he seems to remain an integral part of the mother’s life. The grandparents, by contrast, have a stable home, with suitable space for the child, are willing to care for the child (and in fact have done so for a long time), have modest but adequate resources and have a good relationship with the child. There is no one objectionable to the child in the plan of the grandparents.

[70] The effects on the child of delay in disposition of the case – [subclause ix) – This does not factor into the best interests test as this decision is the end of the delay in the resolution of this case, which I regret to say has been far too long in coming. In any event, the child has been relatively secure and comfortable in temporary care, with the exception of some stomach ailments, ear and throat issues, and disagreements with the society as to its access requirements, none of which has presented an insurmountable problem.

[71] The risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent – [subclause x] – In this case, the only parent involved in this consideration is the mother. She has evidently chosen to remain in a relationship with C.B. and to continue to cohabit with him. With the evidence as to the proclivities of C.B. to engage in alcohol, marijuana use, and domestic violence, this would place Ap. in a situation where she may suffer harm if she returns to live with her mother. C.B. has not only engaged in domestic violence with the mother, he has a history of domestic violence with prior partners documented in the society’s evidence, notably police occurrence reports, with little, if any, response from C.B. himself who declined to testify or to make any submissions. C.B. also has a history of alcohol abuse which seems to be associated with incidents of domestic strife or violence. He has done little to address any substance abuse issues he may have. A return to her mother is not in Ap.’s best interests.

[72] The degree of risk, if any, that justified the finding that the child is in need of protection – [subclause (xi)] – I have already indicated that I do not believe Ap. has actually suffered any physical harm while in the care of her mother, in the sense that is required by s.74(2). The risk Ap. would be under if living with her mother is as a result of the mother’s lack of insight and her proven track record of poor partnership choices. Ap. would be more likely to come to harm in the cross fire between her mother and her mother’s partner at times when they were arguing, and using alcohol. As Ap. gets older, her being in the wrong place may well be more compromised by her vocal assertion of her own independence and her own interests. Ap. is not by any means shy and it is not inconceivable that she might become involved as a third party in a domestic fray herself, or in defence of her mother. In either case, she would be at risk. This consideration does not militate in favour of Ap.’s residence with her mother.

[73] In summary, and by way of recapitulation, none of the best interest test circumstances actually favour a return of the child to her mother. Moreover, unless and until something changes drastically in the mother’s life and lifestyle, the parenting of the child by her mother is not a realistic or a reasonable future option.

[74] The question then becomes what disposition order should the court make. The only other order advocated is a deemed custody order. This would allow the society to bow out of this child’s life and would give to the child’s grandparents the judicial authority and responsibility to parent Ap. on their own. Ap. would be happy with that arrangement. For a number of reasons, not the least of which is that it has worked well in the past, it is a reasonable solution to consider. The grandparents clearly wish this and are prepared to undertake Ap.’s care. No one has put into question their financial ability to do so. The mother and stepfather have however, questioned some other things about the grandparents that might give the court pause.

[75] The mother’s main submission is that the maternal grandparents have engaged in parental alienation, fueling Ap.’s antipathy towards her own mother. They accuse the grandfather of driving around town, basically stalking the mother, and putting his nose where it does not belong. The communication between the mother and the grandparents is admittedly extremely poor, and almost non-existent. There is no visible good will on either side. This creates a very poor environment where the child is caught in the middle of what I loosely refer to as warring family members.

[76] Firstly, parental alienation is a not unheard of phenomenon. However, in the field of family law, it is extremely difficult to prove that it exists, almost always requires a professional to diagnose it, and often times the court needs an expert to assist it in understanding the dynamics. In this case, the mother has made this allegation but has not adduced any credible evidence that the grandparents have engaged in this type of behaviour. In fact, the grandparents have helped the mother more than hindered her. Among other things, they

– went to Hamilton to pick her up when her life was at a very low ebb

– took her into their home when she gave birth to Ap., and allowed them to live there for well over a year

– gave her the use of a functional van so that she would have transportation

– took her to the hospital when she was injured by a former partner

– undertook the care of Ap. when the mother could not herself which turned out to be quite often

[77] I do not agree that the mother has demonstrated any parental alienation on the part of her parents. The history of the mother leads me to the opposite conclusion, namely that the mother has engaged in conduct and lifestyle choices that the maternal grandparents clearly did not approve, and with good reason. It has been the mother who has alienated her own child by her promises to the child which she has consistently broken. The incident that precipitated the removal of Ap. was simply the last in a long line up of similar incidents. The child reached an age where she had had enough and no longer wanted to live with her mother. The grandparents have evidently made a decision to write off the mother which is unfortunate, but understandable. Their first priority, like that of this court, must be to a 12 year old child, not to an adult daughter who has never been a successful parent.

[78] Ultimately, the court has to make a choice. The reality is that the child is not at risk of any harm if she resides with her grandparents. From a child protection point of view, the protection of Ap. is somewhat academic at this point. There is little reason for the society to remain involved with Ap. That is, provided that Ap. continues to reside with her grandparents. That can be accomplished by an order made under s.102(1) CYFSA granting joint custody to Ap.’s grandparents. This kind of order is referred to as a deemed custody order[^17] for the reason that although it is made in a child protection proceeding under the CYFSA, it is deemed to be a domestic family court custody order made under the Ontario statute known as the Children’s Law Reform Act (the CLRA). Effectively, it eliminates the society from further involvement. Any subsequent variation must be done under the CLRA.

[79] In the circumstances, I find it is in Ap.’s best interests that a deemed custody order be made under s.102(1) CYFSA in favour of her grandparents.

ACCESS

[80] The court has also to deal with the issue of access to Ap. by her mother or access by Ap. to her mother. The “deemed” access order is also one that the court can make under s.102(2) CYFSA.[^18]

[81] An examination of the provisions of the CYFSA that deal with access shows that the court makes access orders under s.104(1) CYFSA.

S. 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.

[82] Moreover, where a deemed custody order is made with respect to a child who has been removed from the person who had charge of the child, the court must make an order for access to the person who had charge.

S.105 (2) If a custody order is made under section 102 removing a child from the person who had charge of the child immediately before intervention under this Part, the court shall make an order for access by the person unless the court is satisfied that continued contact will not be in the child’s best interests.

[83] Accordingly, the court must make an order for access by Ap.’s mother to Ap. unless the court finds it is not in Ap.’s best interests to do so. I specifically do not make this finding. In fact, Ap. has a lifelong relationship with her mother that has oftentimes been beneficial and enjoyable for Ap. That the relationship is currently on the rocks is more situational than anything else. Moreover, Ap.’s mother is the closest family member that Ap. has or ever will have unless it is a child of her own one day.

[84] What the CYFSA does not do in s.102 is give guidance of what the terms of any access order should be. There are a few issues that impact on what maternal access to Ap. should look like in terms of an order of access.

[85] Firstly, with a deemed custody order, the society will no longer have a supervisory interest either in terms of the child’s placement or in terms of the child’s access visits. As far as arrangements for access to include the society, this is a non starter. It can be of no assistance – and may not want to be.

[86] Secondly, access arrangements are normally made between adults, typically the custodial and the non-custodial (access) parent. In this case, the relationship between the mother and the maternal grandparents is a dismal one. In fact the mother has claimed that the maternal grandparents have undermined her parental role and have worked to alienate Ap. from her and thereby frustrate any access. It is not a game plan I would choose as acceptable for purposes of making access arrangements.

[87] Thirdly, Ap. wishes to control access with her mother, and this I believe extends to whether access will take place at all. To have arrangements made by the two of them directly would be acceptable but Ap.’s grandparents would have to be kept in the loop as to access details prior to any particular access visit taking place. It would put the onus for any access squarely on Ap.’s shoulders. Communications with respect to any access could be done by electronic means as both Ap. and her mother seem to be adept, at least with telephones and tablets.

[88] Optimally, I would prefer an intermediary who would be acceptable to both sides, is able to communicate with them, and would be willing to convey arrangements between them. Unfortunately, no such person has surfaced or has been suggested by either side.

[89] I am not suggesting that access visits between mother and daughter should be supervised. Ap. is old enough and is sufficiently mature to decide to leave any access visit where she may feel uncomfortable.

[90] With respect to the presence or absence of other persons during any access visits, and in particular, C.B., I do not intend to include any prohibitions in an access order. The evidence at trial indicated that the child Ap. had extensive contact and exposure with C.B., many of which were clearly enjoyable. Ap.’s objection to him seems to be in how he has treated her mother rather than how he has treated Ap. Ap. can advise her mother whether she wishes visits with her to exclude C.B. (or anyone else for that matter). The mother then has a choice to decline the visit or to accept Ap.’s condition.

[91] Ap. will turn age thirteen on […] 2019. She will then be a legitimate teenager. I confess I had a different perception of Ap. from reading the society workers’ affidavit evidence, and OCL counsel’s material that related to her. The impression I had from these sources led me to expect a child who was wilful, outspoken, egocentric, manipulative, controlling and perhaps a bit of a liar, or at least a bender of the truth when it suited her. She also was portrayed as independent, demanding, belligerent and wanting her own way, to the point that she walked (or stalked) out of meetings that were arranged with society social workers. I was somewhat surprised that the society workers, despite these portrayals of Ap., were still backing her and supportive of her. I was surprised that her OCL counsel who is a lawyer with considerable experience, also appeared to be taken in by Ap. – hook, line and sinker.

[92] The presence of Ap. as a witness led to a different perception. While all of the foregoing descriptions may well have been true, to some extent, what I perceived was an almost “young woman” who had a mind of her own, was empowered by being the focus of a lengthy court hearing, had her own lawyer representing her (and doing so quite capably), and enjoyed calling the shots to the extent that she could. She liked being emancipated from her mother, and liked the fact that significant persons in her environment were listening to her and finally paying attention to what she was saying. All of this can be quite heady to an almost teen. I say, with some confidence, that I believed Ap.’s factual evidence as to events in her life. I also understood, after hearing Ap.’s testimony, why she wanted what she wanted which was essentially a life without strife and worry over her mother. I understood better why her lawyer and her social workers and her grandparents were supportive of her.

[93] Ap. has to remember that she is not an adult, that things she has done in the past without consequences, may have consequences as she gets older. She has only one mother. Perhaps her mother is not a model of motherhood, but despite her faults, it was apparent to me that she loves her daughter. She has good points as well as not so good points. I am impressed that she is in her last year of a university degree program, that she works as an employee at a local store, that she volunteers with community organizations, and that she has friends and acquaintances who have a genuine regard for her. Perhaps she makes mistakes, and pays for them. But before Ap. slams a door in her mother’s face, she should remember that later, she may not have a handle on her side, if and when she wants to re-open that door. It would be better for both if they could keep that door open a crack and at least keep their relationship intact.

[94] The court is somewhat hampered in making a s.102 deemed access order. In the circumstances, and in absence of a mutually acceptable intermediary, I am inclined to leave it to Ap. to make decisions about access with her mother, rather than leave that to her mother. This also means that any momentum for access to take place will rest with Ap. It will be up to Ap. to contact her mother and initiate access visits.

[95] As for other aspects of access, I would certainly allow the mother to have access to Ap.’s school and medical records directly from the persons providing such services to Ap. Counseling records will be subject to Ap.’s written consent to share these with her mother.

[96] With respect to access to Ap. by C.B., the only claim for such access was made by the society and, in its submissions following trial, it is seeking that no order be made for C.B. to have access to Ap. C.B. does not advance such claim himself. The child does not wish to have any order that provides access to herself in favour of C.B. In fact, I am not entirely sure that C.B. is a “parent” as described in the CFSA or in the CYFSA with respect to the child Ap. I was never made aware under what statutory provision the society believed him to be a parent. Nevertheless, it has named him as a party respondent and has sought and obtained an order of interim access which I do not believe he is currently exercising. In these circumstances, I do not propose to make any order for access to C.B. and any prior order for his access will be terminated.

[97] I thank counsel and the parties for their able presentation of this case. It is a case that required a trial as there were too many factual disparities and different stories being told.

[98] I also add my feeling that section 93(2) CYFSA[^19] has done nothing to shorten at least this child protection trial, and has done much to lengthen it. Throughout this trial, I had much evidence that clearly related only to disposition and had little to do with a finding. I could no longer refuse to admit such evidence since the enactment of s.93(2). In fact, I had to admit it, and then was prevented from considering it until a finding was made that the child was in need of protection. This is, in my view, an illogical provision that will work to increase a backlog that is already substantial in this province. It is bound to add additional days to trial time estimates. It will require judges to compartmentalize strictly dispositional evidence from other evidence and require such judges to temporarily disregard it. It does nothing to promote s.96(a) CYFSA[^20] which mandates early findings in need of protection by way of a bifurcated proceeding, and in fact, promotes a blended proceeding that will entail more delay and more consumption of trial time.

Released: January 7, 2019

Signed: Justice John Kukurin

[^1]: CYFSA S.93(2) In a hearing under subsection 90 (1), evidence relating only to the disposition of the matter shall not be considered in determining if the child is in need of protection.

[^2]: Strictly speaking, a ‘stepfather’ is a male who marries a woman who is already the mother of a child or children. A person who lives in a common law relationship with a mother may be considered, by some, to be a stepfather to her children, but I prefer to consider such person as the mother’s ‘boyfriend’ or partner, or more accurately, her ‘common law spouse’. I do not believe such person acquires stepparent status with respect to her child. He does not acquire custodial rights or access rights to the children through such a relationship. He may, however, acquire child support responsibilities to them by demonstrating a settled intention to treat them as members of his family... I refer to C.B. in these Reasons as ‘stepfather’ only because it is convenient.

[^3]: CYFSA S.79(6) A child who is the applicant under subsection 113 (4) or 115 (4) (status review), receives notice of a proceeding under this Part or has legal representation in a proceeding is entitled to participate in the proceeding and to appeal under section 121 as if the child were a party. (my emphasis)

[^4]: The ‘stepfather’ C.B., filed an Answer that contains no claims whatsoever by him. He chose not to testify at trial. However, he was quite active in the trial and engaged in extensive cross examination of most witnesses. It was difficult to decide what C.B.’s interest was as a party. I conclude that he wanted to minimize any evidence that he was a violent partner, especially of the mother, and was content to support her claim for return of the child to her custody.

[^5]: CYFSA S. 102 (1) Subject to subsection (6), if a court finds that an order under this section instead of an order under subsection 101 (1) would be in a child’s best interests, the court may make an order granting custody of the child to one or more persons, other than a foster parent of the child, with the consent of the person or persons.

[^6]: The society did not argue that a finding be made under clauses (a), (a)(i), (a)(ii), (b) or (f) of s.74(2)

[^7]: CYFSA S.74(2) A child is in need of protection where (a) the child has suffered 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, or (ii) pattern of neglect in caring for, providing for, supervising or protecting the child;

[^8]: (f) the child has suffered emotional harm, demonstrated by serious, (i) anxiety, (ii) depression, (iii) withdrawal, (iv) self-destructive or aggressive behaviour, or (v) delayed development, and there are reasonable grounds to believe that the emotional harm suffered by the child results 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;

[^9]: (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;

[^10]: (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, or (ii) pattern of neglect in caring for, providing for, supervising or protecting the child;

[^11]: Prior to the 2000 amendments to the CFSA, the risk of physical harm grounds required that the society satisfy the court that the risk was a “substantial risk”. That is no longer the case statutorily. The risk no longer has to be a substantial one.

[^12]: CYFSA S.102 (1) Subject to subsection (6), if a court finds that an order under this section instead of an order under subsection 101 (1) would be in a child’s best interests, the court may make an order granting custody of the child to one or more persons, other than a foster parent of the child, with the consent of the person or persons.

[^13]: CYFSA S.74 (3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall, (a) consider the child’s views and wishes, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained; (b) in the case of a First Nations, Inuk or Métis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Métis cultures, heritages and traditions, of preserving the child’s cultural identity and connection to community, in addition to the considerations under clauses (a) and (c); and (c) consider any other circumstance of the case that the person considers relevant, including, (i) the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs, (ii) the child’s physical, mental and emotional level of development, (iii) the child’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression, (iv) the child’s cultural and linguistic heritage, (v) the importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family, (vi) the child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community, (vii) the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity, (viii) the merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent, (ix) the effects on the child of delay in the disposition of the case, (x) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent, and (xi) the degree of risk, if any, that justified the finding that the child is in need of protection.

[^14]: The child testified with a screen as an aid. It was a precaution, but, in my view, hardly necessary as the child was very comfortable as a viva voce witness and held her own quite well even in cross examination.

[^15]: CYFSA S. 94(11) is a new provision that requires the court to take into consideration the views and wishes of a subject child before it makes any temporary order for the child’s care and custody. As such orders are necessarily made within 5 days of a child’s being removed from the person having charge, my feeling is that this mandatory provision is unlikely to ever be complied with, primarily because of time constraints. However, a child who files an Answer and Plan of Care can indicate views and wishes, even as to the child’s temporary placement, or with whom, when and where the child visits pending a final hearing. An Answer is one means of getting the information before the court as early as possible.

[^16]: Officially, the society had been awarded temporary care and custody of Ap. It placed Ap. with the maternal grandparents who functioned essentially as foster parents for the society and were funded as foster parents. However, as foster parents, they were disqualified in their ability to be awarded a deemed custody order. Accordingly, they sought and were granted temporary care and custody so that they could advance this claim. CYFSA S.102 (1) Subject to subsection (6), if a court finds that an order under this section instead of an order under subsection 101 (1) would be in a child’s best interests, the court may make an order granting custody of the child to one or more persons, other than a foster parent of the child, with the consent of the person or persons.

[^17]: CYFSA S. 102 (1) Subject to subsection (6), if a court finds that an order under this section instead of an order under subsection 101 (1) would be in a child’s best interests, the court may make an order granting custody of the child to one or more persons, other than a foster parent of the child, with the consent of the person or persons.

[^18]: CYFSA S.102 (2) An order made under subsection (1) and any access order under section 104 that is made at the same time as the order under subsection (1) is deemed to be made under section 28 of the Children’s Law Reform Act and the court, (a) may make any order under subsection (1) that the court may make under section 28 of that Act; and (b) may give any directions that it may give under section 34 of that Act.

[^19]: CYFSA S.93 (2) In a hearing under subsection 90 (1), evidence relating only to the disposition of the matter shall not be considered in determining if the child is in need of protection.

[^20]: CYFSA 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;