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: 2019-09-30

Court File No.: Brantford C146/19

Between:

The Children's Aid Society of Brant o/a Brant Family and Children's Services

Applicant

— AND —

L.M.S., R.J., J.T., R.T.

Respondents

Before: Justice A.D. Hilliard

Heard on: September 24, 2019

Reasons for Judgment released on: September 30, 2019

Counsel

Birkin Culp — counsel for the applicant society

Linda Henry — counsel for the respondent L.M.S.

Patrick Fallon — counsel for the respondent R.J.

J.T. and R.T. — on their own behalf

Alison Macdonald — counsel for the Office of the Children's Lawyer, legal representative for the children

Decision

Hilliard J.:

Overview

[1] A temporary care and custody hearing was argued in this matter regarding interim placement of the subject children, D.J. and K.M.J.

[2] For the reasons set out in this judgment, I have determined that the least intrusive order at this time that can adequately manage the risk of harm to the children is for the children to remain in the care of the Respondent maternal grandparents, J.T. and R.T., pursuant to terms of supervision, with access to the Respondent parents as I will set out hereunder.

Facts

[3] The children who are the subject of these proceedings are D.J., born […], 2010 (9) and K.M.J., born […], 2015 (4).

[4] Prior to the children being brought to a place of safety, the parties had separated and there was an ongoing application pursuant to the CLRA before the Court.

[5] The children were removed from the care of the parents on May 23, 2019 and were placed in the home of the maternal grandmother which was deemed a place of safety by the Society.

[6] The protection concerns are set out in the affidavit of Courtney Atlee, sworn May 24, 2019, as follows:

1. Significant historical and current domestic violence;
2. Substance abuse by both parents;
3. Father's unwillingness to cooperate with the Society;
4. Emotional harm caused by caregivers;
5. Questionable decision making concerning children's best interests;
6. Likelihood of parties reconciling without first addressing protection concerns.[1]

[7] The Respondent father's evidence is that the Respondent mother had issues with drugs and that she was abusive towards him. He denies physical or emotional abuse of the Respondent mother and the child, D.J.

[8] The Respondent parents got into a physical altercation on May 19, 2019 that resulted in the police being called and the Respondent father being placed under arrest for assault.

[9] The Respondent father was released on a Promise to Appear and an Officer in Charge Undertaking in the early hours of May 20, 2019. The conditions of his Undertaking included a term that he not have any contact directly or indirectly with the Respondent mother with limited exceptions.

[10] Almost immediately upon his release the Respondent father began contacting the Respondent mother by text message, email, and phone calls. None of the contact was pursuant to a stated exception in his Undertaking.

[11] The contact was reported to the police and the Respondent father was arrested for breaching his Undertaking and held for bail. He was subsequently released on a Recognizance with a surety.

[12] After the Respondent father's initial arrest for assault, the Respondent mother took the children and went to live at the home of her parents.

[13] The Respondent mother acknowledges historic substance use. Her evidence is that it was the Respondent father who would purchase drugs for her and that he was the only person with whom she consumed illicit substances.

[14] The Respondent mother's affidavit evidence also sets out allegations of physical, emotional, and sexual abuse throughout their relationship.

[15] The Respondent mother was permitted to continue to reside with her parents and the children after the commencement of the protection application.

[16] At the time of this hearing, the Respondent mother had moved out of her parents residence to focus on her recovery. She conceded that as of the date of the hearing she was not in a position to put forward a plan for the return of the children to her care and was therefore supporting the children remaining in the care of her parents.

[17] Both parents have been having semi-supervised access visits with the children since they were taken to a place of safety.

[18] During semi-supervised access visits, the Respondent father continually demonstrated an inability to refrain from engaging in inappropriate conversations with the children, including discussing his personal finances and showing the children a bag of cash, telling the children he is sad and bored, discussing with the children gifts he intended to purchase for them and trips he would take them on, and approving of and encouraging his son's physical altercations with other children at school.

[19] The Respondent father purchased the exact type of puppy that his 9 year old son had always wanted and brought the puppy to 2 access visits, the second being after having been told he was not permitted to bring the puppy for access visits.

[20] The Respondent father also engaged in verbally aggressive communications with the child protection worker.

[21] No concerns were raised in the evidence about the Respondent mother's access with the children.

[22] The OCL provided the children's view and preferences from counsel table and indicated that the child, D.J., is quite adamant and explicit that he wishes to go and live with his father. K.M.J is happy to remain with her grandparents and wishes to continue doing so while also having access with both of her parents.

[23] Although OCL counsel is unable to provide an opinion about whether D.J.'s stated preference has been influenced by the Respondent father, the language used by the child in expressing his views are not what would normally be expected from a child of 9. The position of the Respondent grandparents, the Respondent mother, and the Society is that the Respondent father has indeed attempting to influence D.J. during access visits. This suggestion is denied by the Respondent father.

Analysis

[24] Pursuant to section 94(2) of the Child Youth and Family Services Act (CYFSA), the court must determine what is the least intrusive order for the placement of the children during the adjournment of the protection application.

[25] The approach that must be taken by the Court on a temporary care and custody hearing is a laddered approach based upon the options set out in s. 94(2) rather than an overall best interests test.

[26] The Court must return the children to the care of the parent from whose care they were removed unless it is satisfied on a balance of probabilities that the risk of harm to the children cannot be adequately managed by terms of supervision with the children in the care of the parent.

[27] As the Respondent mother has conceded that she is not currently in a position to have the children returned to her care I will not address her plan any further.

[28] The Respondent father submits that the least intrusive order is for the children to be placed in his care subject to terms of supervision.

[29] The Society, the Respondent mother, and the Respondent maternal grandparents all advocate for the children to remain in the care of the Respondent grandparents, arguing that the risk of harm to the children were they to be placed in the care of the Respondent father is significant and that risk cannot be adequately mitigated by terms of supervision.

[30] Counsel for both the Society and the Respondent mother in submissions directed the Court to consider the evidence of the father's behaviour and his interactions with the children and with child protection workers in assessing whether he would comply with terms of supervision.

[31] In reviewing the Respondent father's affidavit evidence filed with the Court, I noted a complete lack of acknowledgement of responsibility for his actions.

[32] The Respondent father does not address the concerns raised about his inappropriate interactions with the children. His affidavits are essentially a series of denials of any wrongdoing on his part and accusations levelled at the Respondent mother.

[33] Nothing in either of the two affidavits filed by the Respondent father demonstrate any insight into how his own actions brought about this protection application.

[34] The Respondent father attached to his affidavit sworn September 13, 2019 at Tab 11 of the Continuing Record his certificate of completion from the anger management program he was enrolled in at R Places. He details in his affidavit how he learned about conflict resolution but then went on to indicate that, "[t]he workers at this program did not think that I had an anger management problem."[2]

[35] In the section of that same affidavit addressing his access visits with the children, the Respondent father does not respond to any of the allegations raised in the affidavit of the child protection workers about his inappropriate conversations with the children.

[36] In assessing how the risk of harm to the children can be mitigated, the Court must consider whether the parent proposing to have the children returned to their care under supervision will comply with terms of supervision.

[37] Courts can and should expect that generally litigants will comply with the terms of a court order. That expectation is of course subject to evidence to the contrary.

[38] The Court must also consider evidence of a parent's acknowledgement and understanding of the role of their own behaviour in creating the risk of harm to the children.

[39] In assessing the plan of the Respondent father, the evidence of his failure to comply with court orders in the past must be considered.

[40] The Respondent father does not dispute in his evidence that he failed to comply with the terms of his Undertaking rather attempts to minimize his actions.

[41] The uncontradicted evidence of the Society is that the Respondent father has been repeatedly directed to cease engaging in inappropriate conversations with the children during access visits.

[42] I find that the apparently inability of the Respondent father to follow the direction of child protection workers to limit his conversations with the children to age-appropriate child focused topics demonstrates a lack of insight into how his behaviour is impacting the children.

[43] Despite setting out in his affidavit evidence the programming that he has engaged in, the Respondent father does not indicate anywhere in his affidavit evidence a recognition of why such courses are necessary. On the contrary, the Respondent father suggests in his affidavit that he did not really need anger management counselling and indicates that he was assessed as not having a substance use disorder. The attachments to the Respondent father's affidavit that he relies on for these statements do not actually confirm his position in that regard.[3]

[44] The only statement in the Respondent's affidavit material that could be viewed as accepting responsibility lacks any detail. He states simply, "[t]here are a number of areas where I have made mistakes and can make improvements." There is nothing to indicate what mistakes he believes he has made or what areas he is working to improve.

[45] I find that the Respondent is lacking any insight into how his past behaviour and actions put his children at risk of harm.

[46] I am not satisfied on the evidence before me that the Respondent father understands how his own behaviour has placed the children at risk of harm.

[47] I find that there is credible and trustworthy evidence that the Respondent father has failed to abide by terms and conditions placed upon him by persons in authority leading me to have significant concerns about his ability and willingness to abide by terms of supervision.

[48] I am satisfied on a balance of probabilities that the risk of harm cannot be adequately mitigated by a supervision order should the children be placed in the care of the Respondent father.

[49] I have also considered the Respondent father's request for an expansion of his access in the alternative to placement with him. Given my findings on the Respondent father's lack of insight into his behaviour and his inappropriate interactions with the children during supervised access, I am satisfied that his access should remain in the discretion of the Society at this time.

[50] Having come to this conclusion, I am mindful of the position taken by the OCL on behalf of the child, D.J., that his stated views and preference are that he wishes to reside with his father. However, D.J. is only 9 and his views and preference are but one of the considerations in determining care and custody on an adjournment. I also have concerns based upon the evidence before me that D.J.'s stated preference has been unduly influenced by the Respondent father.

Conclusion

[51] The children shall remain in the care of the Respondent grandparents, J.T. and R.T., under terms of supervision as the Society may direct.

[52] The Respondent father shall have access to the children in the discretion of the Society as to supervision, duration, location, time, and frequency.

[53] The Respondent mother shall have access to the children each weekday (Monday to Friday) at such times as may be arranged in consultation with the Respondent grandparents, Saturdays for a minimum of three (3) hours, and such other days and times as approved by the Society and arranged in consultation with the Respondent grandparents. The requirement for the Respondent mother's access to be supervised shall be at the discretion of the Society.

Released: September 30, 2019

Signed: Justice A.D. Hilliard

Footnotes

[1] Affidavit of Courtney Atley, sworn May 24, 2019, Continuing Record Vol 1, Tab 3, para 12.

[2] Affidavit of R.J. sworn September 13, 2019, Continuing Record Vol 1, Tab 11 at para 57.

[3] Affidavit of R.J., supra, at para 54 – 57.