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: 2019-12-17

Court File No.: 125 N. Brodie Street, Thunder Bay, ON FO-18-295-00

Between:

Dilico Anishinabek Family Care Applicant

— AND —

EJ Respondent

Before: Justice D. J. MacKinnon

Heard on: September 9, 2019 and November 29, 2019

Reasons for Judgment released on: December 17, 2019

Counsel

Kristi Burns — Counsel for the Applicant Society

Marco Frangione — Counsel for the Respondent, EJ

Martha Petryshyn — Counsel for the Office of the Children's Lawyer, legal representative for the children

Cases Referred To

• Children's Aid Society of Algoma v. J.B., 2019 ONCJ 6
• Jewish Family and Child Service v. R.K., 2009 ONCA 903
• Kenora-Patricia Child and Family Services v. L(N), 2005 ONCJ 247
• Kenora-Patricia Child and Family Services v. J.G., [2001] O.J. No. 2290
• Brant Family and Children's Services and L.DV and C.B., 2018 O.C.J. 669
• Winnipeg Child and Family Services (Central Area) v. W.(K.L.), 2000 SCC 48
• Children's Aid Society of Brant v. R.P., 2019 ONCJ 649

Statutes, Regulations and Rules Cited

• Child, Youth and Family Services Act, s. 74(2)(b)(i), s. 74(2)(d) and s. 74(2)(e); s. 88; s. 80; s. 74(4)
• Ontario Regulation 114/99, Family Law Rules, Rule 16
• Children's Law Reform Act, s. 34

JUDGMENT

MACKINNON, J.:

Introduction

[1] This is a motion for summary judgment brought by the Respondent father for dismissal of the Protection Application of the Applicant society. The Respondent's position is that there is no basis for the allegations of the Applicant and no issue for trial.

[2] In response, the Applicant society, Dilico Anishinabek Family Care, has not filed a similar motion for summary judgment. The materials of the Applicant filed do indicate that the society believes that there is no genuine issue for trial and that there are sufficient grounds for a finding and disposition in its favour without recourse to trial. It seeks interim care of the children for six months. The Office of the Children's Lawyer supports the agency.

[3] The Respondent father also argues that the agency failed to bring the matter before the court within five (5) days of apprehension as required by s. 88 of the Child, Youth and Family Services Act, thus depriving the court of jurisdiction.

Background

[4] EJ and WN are the parents of KJ born […], 2011 and MJ born […], 2013. The grandmother of the children is CN.

[5] WN and her mother and her children are Indigenous. EJ is not Indigenous. The Applicant agency is an Indigenous child welfare agency.

[6] From 2011 to the apprehension of the children in 2018 there were a number of allegations which arose in regard to this family. There were unverified allegations related to physical maltreatment of another child of WN, who was autistic and who resided with the couple at the time. There were allegations of drug abuse by the parents and resultant neglect. A number of temporary customary care agreements were entered into which placed the children with the grandmother CN. The children were returned to the parents as the allegations were unverified.

[7] In 2014, the grandmother CN called the agency and reported that she did not know the whereabouts of EJ and WN and she had the children. The father indicated that WN had taken his vehicle a few days earlier. He needed to go to work and had asked CN if he could borrow her vehicle and if she would babysit the children to which she agreed. He was located by the society at work with the car of CN. Still, the agency apprehended the children. They were returned a few days later.

[8] Society records show that in October of 2015, KJ reported that her father had choked her and pulled her hair. EJ indicated that he had grabbed the child as a television was about to fall on her and this resulted in the marks on her. A parental supervision and caregiving issue was verified. There were also again allegations related to drug abuse and neglect by both parents.

[9] The couple separated and on March 15, 2016, EJ was granted full custody of KJ and MJ under the Children's Law Reform Act. The order is silent as to access by WN.

[10] On April 20, 2016, a month after the custody order, the mother attended at the home intoxicated and wanted to see the children. The father allowed her a short visit. She visited with them privately in their room. She then asked if she could use EJ's telephone and she called the police, who arrived at the home on a complaint by her that EJ had sexually abused the children. The mother reported that KJ told her during her visit that she "bleeds from down there" pointing to her genital area, and that "daddy hurts her". Dilico also attended and the children were apprehended. They were aged three and five years. The statements were not repeated by KJ.

[11] The father says that the children were then subjected to a rape testing kit at the hospital where they were taken and again had another internal examination the next day by Dilico staff. The agency denies this and states that it was an external assessment only.

[12] In May of 2016 a referral indicated self-stimulation observed by the school in regard to KJ.

[13] The police concluded their investigation and found no evidence of sexual harm. Although the agency agreed, the agency kept the children for another month and then they were returned to the father.

The Apprehension

[14] In regard to this Application, the children were apprehended on September 21, 2018. The allegations put forward by the agency to support the apprehension were:

a. The condition of the home;

b. Drug use in the home;

c. Sexualized behaviour including the children dressing in skimpy "stripper" outfits and sleeping on sofas in the living room in their underwear with their father also in his underwear.

[15] The Society had received a referral that there was crack cocaine, Seroquel and Tylenol 3's being used by and in the home of EJ.

[16] The father in his Answer states that a society worker, Ms. Holstead and two police officers knocked on his door at 4 a.m. on September 21, 2018. The worker told him that they were there to inspect his home after receiving a referral that he was using illicit substances while in a caregiving role. He allowed the police officers and social worker to enter and inspect the house, which they did for half an hour. No drugs were found.

[17] As a result of the terrible condition of the home, the father was asked by the attending worker to get a hotel room for he and the children until he could clean up his home. He said that he could not afford to do so. He asked if he could get the children off to school in a few hours and get a room the following night. The worker refused this suggestion and an arrangement was made for the children to stay with CN until the home was cleaned. However, the worker also said that they would be investigating whether sexual abuse was occurring.

[18] On the same day, a Kinship Arrangement was entered into between the grandmother and the father so that the children would be cared for by the grandmother. The father withdrew his consent to this arrangement on October 5, 2018. The society brought their application and wanted the children to remain in the care of the grandmother, as agreed to by the band of the children.

[19] The grandmother notified the agency that she could no longer care for the children on November 16, 2018 as she was entering a senior's residence. The children have been in foster care since that time.

The Court Proceeding

[20] The Application of the agency pleads that the children KJ and MJ be found in need of protection pursuant to s. 74(2)(b)(i), s. 74(2)(d) and s. 74(2)(e) of the Child, Youth and Family Services Act.

[21] The mother WN and the maternal grandmother CN have not filed an Answer, or participated in this proceeding. The mother WN is receiving access to the children through the agency.

[22] On December 10, 2018, an interim order of care and custody to the Applicant was granted by Justice Elder of this Court. In her reasons, Justice Elder stated that:

It is concerning to the court that, despite comments from the court about the weaknesses of the Affidavit material filed by Dilico on the adjournment dates, no supplementary Affidavits from the doctors, teachers or referral sources were filed. Nor is any evidence provided about whether their investigation is complete or ongoing…

To summarize, it is incumbent on Dilico to complete its investigation, gather more information and begin the process of assessment and treatment for these children. Dilico should be identifying what services will meet the needs of this family as well as what E.J. needs to do to have the children returned to him…

At this stage I am satisfied that Dilico's intervention and temporary placement of the children in its care is justified. However as time passes the court may not accept the evidentiary record as meeting the threshold necessary to justify the children's continued placement in care…

[23] The father was granted twelve hours of supervised access each week.

[24] A motion for disclosure was also brought by the Respondent father.

[25] It is now more than a year since the apprehension of the children. The Respondent father challenges whether the agency has evidence supporting their claims, and argues that there is no issue for trial and the children should be returned to him.

[26] A Request to Admit was served by the Respondent, and the agency responded with a Response to Request to Admit.

[27] Following argument on the summary judgment motion, I directed that the worker Laura Margarit be presented for cross-examination.

ISSUE: EVIDENCE AND FINDINGS

[28] The agency bases its application on s. 74(2)(b)(i), s. 74(2)(d) and s. 74(2)(e) of the Child, Youth and Family Services Act.

Ground One - s. 74(2)(b)(i)

[29] The first ground alleged by the Applicant is s. 74(2)(b)(i) which states:

s. 74(2)(b)(i) 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…

[30] Actual physical harm must be proven on a balance of probabilities. (see Children's Aid Society of Algoma v. J.B., 2019 ONCJ 6). Physical harm can be manifested by act, omission or pattern. It can be caused by neglect or error in judgement. Intention is not a necessary element. (see Jewish Family and Child Service v. R.K., 2009 ONCA 903) The physical harm must be more than trifling.

[31] The "risk" of physical harm must be "likely" from an examination of the evidence. History can be a predictor.

[32] However, in Kenora-Patricia Child and Family Services v. L(N), 2005 ONCJ 247, the court found that a pattern of allegations is not sufficient to prove a finding, if the underlying facts of the allegations are not proven.

[33] There are a number of allegations in this case which fall under s. 74(2)(b)(i):

a. Risk of direct physical harm caused by the father;

b. Drug use which affects care and protection of the children;

c. The condition of the home of the family;

d. Failure to provide dental care.

Direct Physical Harm

[34] There have been a number of statements attributed to the children related to physical discipline or harm by the father. In October of 2015 KJ said that her dad choked her and pulled her hair. The explanation from the father was that he pulled her out of the way of a TV that was falling. The agency did not verify this complaint but verified parental supervision and caregiving skills as an issue. There were marks on the necks of the girls on October 24, 2015 which the father said was from brushing their hair and pulling. The children returned to him with no protection concerns. In May of 2016 KJ said that her father had a knife and tried to hurt her with it. This was not verified.

[35] All of these allegations occurred prior to this apprehension, but did not rise to the level that required the children to be in agency care.

[36] The agency has not followed up on some of the statements, such as KJ saying that her father tried to drown her. Another statement made by her was that her father would come into the room in the night and act "crazy" – a claim she also made about her mother.

[37] The referral by WN in 2016, one month after the custody order was granted, that KJ had been hurt by her father "down there" and was bleeding was not substantiated by physical evidence. Either the child said this to please her mother, or the statement was created by the mother. Nonetheless, the agency continues to rely on WN as a source of referrals.

[38] This is not a case where there are unexplained injuries to the children, limited parental capacity, or the use of corporal punishment. In this case, there has been no evidence produced showing physical harm to the children by EJ, or that it is likely, and this ground is unsubstantiated.

Drug Use

[39] At the time of the apprehension, there had been a tip that the father had and was using crack cocaine, Seroquel and Tylenol 3's while in a caregiving position. In particular, the claim was that the father was using "crack" on a daily basis. The agency has refused to give the source of this information.

[40] One has to wonder at the timing of the attendance by the agency at the home of EJ and the children at four in the morning. I find that the agency engaged the police to assist them in an early morning "raid" on the residence to obtain the evidence suggested by the tipster: that a caregiver was incapacitated by the use of illicit drugs. This was the explanation given to EJ by the worker who attended with the police, Ms. Holstead. I do not believe that the police and the agency would forego the benefit of this surprise visit by not conducting a search, and that they did so, as recounted by the father, with no drugs found.

[41] In her cross examination, Ms. Margarit, the social worker, suggests that the reason that no drugs were found in the house on the night of the apprehension is because it was not the intention of the society or the police to look for evidence of drug use when they attended at the home of the family. If it was not for this reason, why were they there?

[42] The agency in their Response to the Request to Admit explains that a search could not be done due to the messy and cluttered state of the house, that the police did not search for the drugs and that a complete walkthrough of the house was not allowed by EJ. There is no affidavit by Ms. Holstead, the worker on the scene, supporting this view.

[43] No drugs have ever been found in the home of the father and there is no evidence that he uses or used illicit drugs, or was under the influence of any drug at the time of the apprehension. No criminal record was produced to show encounters with the law related to drugs.

[44] The agency was going to test the blood of the children in order to determine if there had been exposure to illicit drugs. They decided not to do so as MJ did not want to cooperate.

[45] In addition, there is no evidence that KJ and MJ were compromised in any way at the time of the attendance of the agency. The children were apprehended without warrant.

[46] The father submitted to a urine test on October 1, 2018 but did not get the results from the agency for a considerable period of time. It was negative for drugs. The agency suggests that the father has methods of circumventing urine tests as suggested by WN. There is no evidence to support this contention. The society wanted the father to submit to blood tests "to address the issue of falsified results" but the father refused on the basis that he did not believe that the agency would return the children in any event.

[47] An anonymous source suggested that individuals using drugs behind a local mall then attend at the home of the father. The society refused during this case and this summary judgment motion to reveal the name of this and other "anonymous" sources of information. However, during her cross examination evidence Laura Margarit told the court that the neighbour, Melissa Holmquist was the tipster but that she did not want to be involved. There is no evidence suggesting why this tip should be believed. I discount this evidence as it is hearsay.

[48] The agency admits that other referrents in regard to this issue are WN and a former girlfriend of EJ called "the Burger King lady".

[49] There is no evidence that prior to or since the apprehension, that the father has been using illegal drugs. There is no evidence that he sells drugs. There is no evidence that drugs are used in his home.

[50] While he has not had the children in his care, the father has been able to maintain a residence, its condition to a standard, no police presence or occurrences, meet his access visit schedule, provide gifts and care to his children at visits and attend to this case. This has been the situation for a year. This is not the usual behaviour of a drug addicted parent.

[51] It is not denied that the father knows individuals that use illegal drugs and that they have been to his residence, but this is an issue to which there are less intrusive methods of address than apprehension.

[52] I find that there is insufficient evidence to find that the father uses illegal drugs to the detriment of the children.

Condition of the Home

[53] The condition of the home on apprehension was that there was excessive clutter, dirty dishes and generally a neglected and dirty environment. This can be a hazard to children.

[54] This situation was remedied as early as September 26, 2018 when Ms. Margarit attended at the home and confirmed compliance except that the property could use some "vacuuming".

[55] On November 17, 2018 after the children had been in care for some months, the father brought to the attention of Ms. Margarit that the children were covered in bug bites. Photos are attached to his affidavit of November 19, 2018. An argument ensued between the father and Ms. Margarit, as she refused to have the children attend at the hospital for examination because she felt that it was chicken pox. The father continued to insist and eventually Ms. Margarit conceded that the children were covered in bed bug bites. However, she attributed the bites to the home of the father.

[56] On October 9, 2018 a pest company had provided a report indicating that they had inspected EJ's home including box springs and mattresses, couches and chairs and found no bed bugs or bed bug activity. This report was attached to the affidavit of EJ dated November 2, 2018.

[57] On the same day, a letter from the Tenant Support Coordinator was received by EJ stating that she had attended at his home on October 3, 2018 to obtain his consent for contact between Dilico and the public housing authority to try to access funding for the clean up of the residence. Following her walk through, and aside from some boxes in the kitchen and basement which EJ was going through, her conclusion was that she, "did not have cleanliness, health or safety concerns that would warrant pursuing funds to assist you." This letter was also provided to the agency in the affidavit of EJ dated November 2, 2018.

[58] The agency's Response to the Request to Admit filed by them on July 8, 2019 says:

Dilico is satisfied that EJ's home has been decluttered; however, the home is not suitable for accommodating children unsupervised at this time.

[59] The society admits that the home condition is not a current or ongoing protection issue, but they withhold any final approval on the stated basis. Yet no evidence was produced to give any reason at all that the home was unsuitable for children unsupervised.

[60] In this case, I find that the attitude of the agency is concerning. Despite clear evidence, and their own admission that the situation in the residence had been remedied, Dilico Anishinabek Family Care was and is unwilling to resile from their position taken on September 21, 2018 or concede that this ground is unfounded. Instead, they revert to a generalized and non-specific complaint.

[61] The risk of harm must be real and not speculative. In the past, Indigenous children were removed from parents because of poor housing conditions and lack of running water: a history that the agency should be well aware of. It is deeply troubling that the agency based its apprehension and continued to keep these children in care on these facts.

[62] I find that any conditions of concern in the home have been remedied. Even if such conditions existed on apprehension, there is no evidence at all that the care of KJ and MJ, their supervision or protection had been compromised.

Failure to Provide Dental Care

[63] The agency alleges that the father did not attend to the dental care of the children while in his custody and that they might suffer physical harm in the future as a result.

[64] The children went to St. Vincent School while in their father's care. They participated in a Dental Prevention Program run by the Thunder Bay District Health Unit at the school. The agency disputes this is adequate in their Response and states that the program, "is not for the purpose of cleanings or checkups."

[65] Following the apprehension, MJ was found to have cavities in her molars during an appointment with a dentist in November of 2018. KJ had to have a tooth removed as a result of an abscess.

[66] The father says that he made the appointment for KJ during the time she was in his care. The agency in their Response states that they have no record of an appointment made by the father for KJ. However, the dental appointment did occur on October 22, 2018, the day the father says he arranged the appointment for, with the dentist the father had for the children.

[67] In their "Dental Report on Child in Care", the agency does not note that the children's dental needs were neglected. This was brought to their attention in the Request to Admit, to which they responded, "Dilico does not assess dental work; Dilico relies on the professionals for that." This is a deflection.

[68] In assessing the level of dental care required, it is important to consider poverty, single parents and other issues which do not allow for the level of dental attention held by others. There is no evidence that the lack of dental care was affecting the health of the children to a degree that they should be removed from their father's care. In any event I do not find that the father failed to address the dental needs of the children.

[69] I am not satisfied that the Applicant has shown on a balance of probabilities that KJ and MJ are likely to suffer physical harm in the care of the Respondent as a result of a failure to adequately care for, provide for, supervise or protect the children.

Ground Two – s. 74(2)(d)

[70] The second ground that Dilico Anishinabek Family Care claims is s. 74(2)(d) of the Child, Youth and Family Services Act, which states:

s. 74(2)(d)

(c) the child has been sexually abused or sexually exploited, by the person having charge of the child or by another person where the person having charge of the child knows or should know of the possibility of sexual abuse or sexual exploitation and fails to protect the child;

(d) there is a risk that the child is likely to be sexually abused or sexually exploited as described in clause (c).

[71] The substance of this ground is that the children are likely to be sexually abused by EJ or sexually exploited in his care.

[72] Is there evidence that the children have been sexually abused by the father or someone known to the father? Is there a likelihood that the child could be sexually abused of exploited in the future?

[73] The agency relies on a number of allegations in support of their position that the children were sexually abused by their father or at risk of being abused. The allegations are related to:

a. "sexy stripper" outfits,

b. sexual dancing for their father and his friends,

c. sexualized behaviour by KJ,

d. inappropriate touching

Sexy Stripper Outfits

[74] The allegation of the agency is that the father would have the girls dress in "sexy stripper outfits" and dance for him and his friends, possibly around a pole.

[75] After the apprehension of the children on September 20, 2018, the father had to wait for an inspection of the condition of his home by Laura Margarit. When she did inspect it, he asked if the home passed inspection. She said no, that it could use some vacuuming. He asked if the children would be coming home and she indicated no. When he questioned this, the worker said to him, "Tell me about the stripper dress, Ed."

[76] He said that he did not know what she meant. Then he remembered that in mid September WN had been visiting the girls on his property. The girls were jumping on the trampoline in his yard and would grab the poles around it. He states in his affidavit, "The Respondent (WN) confronted me during her visit on my property and asked me 'why I let my daughters dance like strippers on the (trampoline) poles'".

[77] He showed the worker the trampoline and explained the above to her. The worker was not satisfied and stated that she would be investigating further to determine if the girls were at risk of sexual harm in his care.

[78] On cross-examination the worker admitted that she did not look at the outfits the girls had been wearing even though their location was pointed out to her. She did not ask the children or follow up on the issue of whether the children dance in front of men.

[79] A neighbour of the father provided a letter indicating that her children were in dance classes and occasionally KJ would accompany them. She gave KJ and MJ some used costumes from the dance class. The black and yellow costume was a bumblebee outfit. The dance group indicated that they were willing to answer any questions or provide further information in regard to these costumes. There appeared to be no follow-up by the agency.

[80] In their Response of July 7, 2019, the agency acknowledges, "The children were never enrolled in dance programs at Dance Dynamics, although KJ sometimes attended at the dance centre with her friend in the summer."

[81] Regardless of this explanation for the costumes, in their Response to the Request to Admit in July of 2019, the agency continues to hold to this as a sign of abuse:

The concern was that the children referred to the dance costumes as their "sexy stripper suits", and the children using inappropriate adult terminology to describe their attire in a sexualized manner.

[82] There is no evidence before the court that the children used this terminology. Even if they did, it appears that the source of the characterization of their attire more likely came from their mother, or the agency.

[83] In regard to MJ, the agency suggests that she puts on a dinosaur mask and dances for her dad and his friends. The child did say that she puts on the mask and roars for her dad. She did the same thing with Ms. Margarit present. While Ms. Margarit states that the child said she was naked when she wore the suit, there is no evidence before the court confirming that the child made these statements.

[84] In addition, the society has adduced no evidence that "men" were at the residence and the girls danced for them.

[85] The reason that the court required the cross-examination of Ms. Margarit is that her interviews of the children are, in many cases, the only evidence of the agency and starkly at odds with other evidence.

[86] I find the explanation by the father related to these outfits is plausible and more likely and supported by independent evidence. While the agency has held tenaciously to the narrative that the children dress in sexy stripper outfits and dance for their father and his friends, there is no evidence supporting their view.

Sexualized Behaviour

[87] It is acknowledged by all parties that KJ has sexualized behaviour; that is, self-stimulation.

[88] In regard to MJ, she has had difficulties with toilet-training and was wearing pull-ups even at the age of five. She has had difficulty with her stools.

[89] The agency attributes these problems to the father.

[90] I am satisfied that the problem of KJ self-stimulating was first evidenced by the school in May of 2016. The agency says the following in their Response to the Request to Admit:

"The first referral for self-stimulation in 2016. However, the school never brought it up again until Dilico (the agency) became involved in September/October, 2018. Dilico was advised by collateral sources that the frequency and severity of KJ's self-stimulating had increased."

[91] The worker, Ms. Margarit, reports that the school told her that there were increased incidents of self-stimulation with at least five occurrences on October 31, 2018. In their Response, the agency adds:

Dilico reminds the school of their duty to report. Self-stimulating behaviour was disclosed in 2016 but this investigation revealed on-going concern and multiple collateral resources making this referral.

[92] What is the source of KJ's behaviour?

[93] Although the children have been in the care of the agency since September of 2018, there is no diagnosis of the source of this issue.

[94] It is clear that the prior lifestyle of the parents invited other adults into the home, possibly who consumed illegal drugs. The grandmother had the children in her care for various periods of time and it is unknown who lived with her. The mother has met with the children alone and unsupervised and continues to have access with them.

[95] There is often a link between sexualized behaviour and sexual abuse, but not always. Such behaviours may be reactions to other stimuli or stem from the psychology of the child. For example, I note that the increased incidents are after the apprehension on September 21, 2018. Is it related to stress?

[96] In addition, it is distressing that the timing of the emergence of this behaviour is coincident with the examinations of KJ by the hospital after WN's allegation that KJ said that her dad hurt her "down there". The father says that an invasive rape kit was used on the children which they told him about. The agency says it was a visual and external examination only. There is no medical evidence on this issue. The complaint at the time was unverified by the agency or the police, and the children were returned to the father in 2016.

[97] There is no more evidence that supports the theory of the agency that the father is likely the source of KJ's sexualized behaviour than would support any other theory.

[98] There is insufficient evidence to conclude that the father is the source of the self-stimulation by KJ.

Inappropriate Touching

[99] In regard to MJ, the agency suggests that she has been inappropriately touched also. The allegations are that she cried and appeared to fight her father when he tried to clean her bottom at the doctor's office.

[100] In the latest complaint of July 2019, she did not want anyone to clean her bum because they might put their finger in her bum like dad.

[101] MJ has had a difficulty with toileting and her stools. She does not like invasive touching. She also made complaints about the way the foster mother cleaned her bum. The grandmother CN said on November 3, 2018 that she wanted the children removed from the foster home as the casenote, redacted by the agency, says, "blank told her that they took all of her blankets away and she was cold, foster mom yells at blank if she wets her pull up, blank is sleeping in a crib, and blank has a bad rash on her bum – so bad that she cannot pee without crying…"

[102] The neighbour, an anonymous source revealed by Ms. Margarit to be Melissa Holmquist, said MJ sat on her husband's lap and was overly affectionate. The agency did not interview the husband. The agency did not obtain specifics of the behaviours. The agency accepted the tipster's opinion.

[103] Another complaint is that the father cleans the genital area of the children in the bathtub for about five minutes. There is no basis for me to determine that this is excessive or sexual. He is their father and they need to be bathed.

[104] I cannot conclude on this evidence that:

a. KJ or MJ have been sexually abused by their father or any other person; or

b. That either child is likely to be sexually abused in the future.

[105] This ground fails.

Ground Three – s. 74(2)(e)

[106] The third finding sought by the Applicant society is pursuant to s. 74(2)(e) which states:

s. 74(2)(e)

(e) the children require treatment to cure, prevent or alleviate physical harm or suffering and the children's parents or the person having charge of the children, does not provide the treatment or access to the treatment, or, where the children are incapable of consenting to the treatment, under the Health Care Consent Act 1996 and the parent is a substitute decision-maker for the children, the parent refuses or is unavailable or unable to consent to the treatment on the children's behalf.

[107] There is no definite diagnosis for the children. The only possible conditions alluded to here would be the self-stimulating activities of KJ and the difficulties of MJ with toileting.

[108] EJ indicated that after the initial notice to him by the school of KJ's self-stimulation in 2016, the situation seemed to be corrected and there were no further notices from the school.

[109] There is no evidence that EJ refused treatment to his daughters which could have prevented or alleviated physical harm or suffering for any condition.

The Father/Daughter Relationships

[110] In this motion, the affidavit of Clayton Nolan, a worker, dated August 14, 2019 attached reports related to the visits between the children and their father for the purpose of showing the father's inability to be respectful and to work with the society. These reports were important for other reasons.

[111] On the whole, the access reports show the following:

a. Love and affection between the children and their father. They run to him, climb on his lap, hug him and express their affection for him and that they miss him. He does the same with them. They are happy and smiling with him. Some of the visits they are laughing and having fun.

b. Appropriate control. The father redirects them when needed and engages with them in play. He shows a real interest in them and their lives and communicates with them. They listen to him when it is time to get ready.

c. The children do not want to leave their father and sometimes hide from the worker.

d. He encourages the children, telling them that they are good artists or good at gymnastics.

e. The children go shopping with him and have appropriate meals he prepares. He is organized for their visits.

[112] In keeping with the view of the agency in regard to the grounds for apprehension, Ms. Margarit suggests that the children do not greet their father, are uninterested in the visits and do not say goodbye. This contrasts with the access notes of various workers supervising the visits who are not so invested in a position.

Conclusion re: Findings

[113] The evidence rebutting the allegations of the agency was generally available in October and November of 2018. The following should no longer have been issues:

a. The condition of the home;

b. "Sexy stripper" outfits;

c. Drugs in the home;

d. Drugs in EJ's system;

e. KJ's self-stimulation.

[114] EJ is a sixty-five year old non-Indigenous man who wants to raise his two daughters, now aged 8 and 6. I am surprised by the lack of support this family received from the agency, and the immediate condemnation of this father when the facts did not warrant this approach. In response to very frail and unsupported allegations, his word and evidence were given little consideration. There is an inherent unfairness to the treatment of EJ. It is understandable why the relationship between the father and the agency is, I believe, irreparably damaged. This situation does not serve the children.

[115] The agency wants the court to make findings based on suspicion and innuendo. In the case of many of the allegations, the agency has failed to disclose the identity of the informant or provide a basis for believing that their statements are true. In other situations, it is known that the non-custodial mother of the children, or an ex-girlfriend of the father were the source of a reference. The agency seemed blind to the domestic nature of these allegations and the possibility of vengeful contrivance.

[116] It is laudable to take a considered position on the basis of proven or provable facts. It is another thing to accept unsubstantiated allegations at face value as facts and try to knit together enough to create a case. Numerous allegations are not facts, but simply a house built on sand.

[117] There is a lack of credible and reliable evidence supporting findings in this case.

ISSUE: JURISDICTION

[118] The children were apprehended on September 21, 2018 when they were removed from the care of the father, who had legal custody pursuant to an order of custody dated March 15, 2016. This action occurred without a warrant.

[119] A customary care or kinship in care agreement was entered into by the father with the agency to provide care to the children.

[120] On October 5, 2018 the solicitor for the father sent a letter and form to the agency indicating that the father was withdrawing his consent to the customary care for his daughters and confirming that he anticipated that the agency would bring the matter to court within five days.

[121] The agency did not have an application issued until October 18, 2018. The first court date was October 22, 2018. The father has raised an issue of the jurisdiction of the court as a result of a violation of s. 88 of the Child, Youth and Family Services Act which states:

Time in place of safety limited

88 As soon as practicable, but in any event within five days after a child is brought to a place of safety under section 81, subclause 83(1)(a)(ii) or subsection 136(5),

(a) the matter shall be brought before a court for a hearing under subsection 90(1) (child protection hearing);

(b) the child shall be returned to the person who last had charge of the child or, where there is an order for the child's custody that is enforceable in Ontario, to the person entitled to custody under the order;

(c) if the child is the subject of an extra-provincial child protection order, the child shall be returned to the child welfare authority or other person named in the order;

(d) a temporary care agreement shall be made under subsection 75(1); or

(e) an agreement shall be made under section 77 (agreements with 16 and 17 year olds).

[122] It is clear that the application of the agency was not brought to court until thirty-one days after the original apprehension on September 21, 2018, or seventeen days after the withdrawal of consent to the customary care agreement which occurred on October 5, 2018.

[123] The setting of a time limit within which the child protection proceeding must be commenced establishes the serious nature of the action of apprehension of children from their parents. The time limit is a mandatory requirement. The court is allowed to engage immediately in its role of examining and monitoring the state actions which intervene in the parent and child relationship. There is a recognition that children can be severely affected by the exercise of the powers given to a child welfare agency.

[124] The principle case dealing with this time limit is Kenora-Patricia Child and Family Services v. J.G., [2001] O.J. No. 2290. Justice J. Little, in reviewing the issue of the five day limit, states the following:

In this new context, I do not think agencies should be encouraged to ignore the plain meaning to be given to the words "as soon as practicable, but in any event within five days" in subsection 46(1). I believe the five days are to be a maximum if needed. I note that subrule 33(1) refers to the five days as a maximum.

[125] The reason for this requirement is also explained in the judgment:

Agencies may find it inconvenient to bring cases involving apprehension before the court "within five days" but parents have had their children removed from their care by way of an apprehension, often without a warrant being obtained. This intrusion in to the life of families is meant for situations in which there is harm to a child or risk of serious harm....

[126] Both the Kenora-Patricia case and the case of Brant Family and Children's Services and L.DV and C.B., 2018 O.C.J. 669 rely on a decision of the Supreme Court of Canada in Winnipeg Child and Family Services (Central Area) v. W.(K.L.), 2000 SCC 48 for the proposition that the time limit is an essential requirement for agencies to meet. The Supreme Court said:

While the infringement of a parent's right to security of the person caused by the interim removal of his or her child through apprehension in situations of harm or risk of serious harm to the child does not require prior judicial authorization for the reasons outlined above, the seriousness of the interests at stake demands that the resulting disruption of the parent-child relationship be minimized as much as possible by a fair and prompt post-apprehension hearing.

[127] In the Kenora-Patricia case, the court found that the failure to bring the matter to court within the five day period meant that the court had lost jurisdiction. In the Brant case, the court found that an intervening period of care by the parents moved the apprehension date and thus met the five day limitation. However, the relief contemplated by Justice Baker in that case was also dismissal for want of jurisdiction.

[128] In Children's Aid Society of Brant v. R.P., 2019 ONCJ 649, the court found that there was not an informed consent to a customary care agreement and that, over time, there was no consent by the mother to the arrangement. By identifying the time that the consent ended, the court found that the matter was not brought before the court within the hard cap of five days. Justice Hilliard determined, "The failure of Ogwedeni:deo to commence an application within the requisite times has resulted in the court losing jurisdiction to hear the matter."

[129] The agency under s. 80 has a duty to pursue a plan for customary care for children that are in need of protection, cannot be returned to the custodial parent and are members of an Indigenous community.

[130] In this case, I do not find that the entering into of a kinship arrangement or a customary care agreement changes the commencement date for calculation of the period of time under s. 88 from September 21, 2018.

[131] On a plain reading of s. 88, it provides the actions that must be taken by an agency after an apprehension. The agency must do one of the following: commence a court application, return the child to the person who had care, return the child to an extra-provincial authority, enter into a temporary care agreement or enter into an agreement with 16 or 17 year olds. The legislation does not establish that a customary care agreement or kinship agreement is a satisfactory alternative, at this stage, to commencing an application.

[132] In other words, if First Nation, Inuk or Metis children are apprehended, this section provides that an application must be brought in regard to the children, even in cases where the intention is for the matter to be resolved by a customary care agreement. This is even more so as a customary care placement is a place of safety as defined in s. 74(4).

[133] The apprehension of KJ and MJ without warrant occurred on September 21, 2018. There is no doubt in this case that the Applicant agency failed to bring the matter before the court within five days of the apprehension or within five days of the date of the withdrawal of consent by the father on October 5, 2018.

[134] The court has lost jurisdiction to hear this matter under the Child, Youth and Family Services Act.

ISSUE: ALTERNATIVE JURISDICTION

[135] The father in this case has a court order of custody pursuant to the Children's Law Reform Act. The court has jurisdiction under s. 34 of the Act to make an order setting out custodial terms, or an order of supervision if an agency agrees to assume that responsibility.

[136] I have determined not to exercise this jurisdiction in this case for the following reasons:

a. The relationship between the agency and the father is too contentious;

b. As the grounds under the CYFSA are insufficient, the exercise of the jurisdiction under the CLRA would similarly be ill founded and, in fact, unfair;

c. It would open a portal to furtherance of the agency's determination to find evidence to bolster a failed narrative, if they so chose;

d. The existence of love and affection between the father and his daughters and the desire to be a good parent are given weight;

e. The father can seek the support of other services in the community;

f. The family has been through enough upset and turmoil and it is not in the best interests of the children to have court-ordered continuation of the contact between the father and the agency.

[137] It is hoped that the father will follow up on the services needed for KJ and MJ.

CONCLUSION

[138] The parties both agreed that there was no issue for trial.

[139] The court does not have jurisdiction to determine this matter as the Applicant failed to commence the court application within the time allowed by s. 88 of the CYFSA. The Application of Dilico Anishinabek Family Care is dismissed on this basis.

[140] In the event that I am wrong in regard to jurisdiction, I have determined for the reasons above that there is insufficient evidence to support findings in this case. The Application of Dilico Anishinabek Family Care is dismissed on this basis as required.

[141] The motion for summary judgment of the Respondent father is granted.

[142] The children are to be returned immediately to the Respondent father.

[143] If the Respondent wishes to argue costs, the matter is to be adjourned to my next intake date to set a date for argument. The Respondent will notify the court and the opposing parties if this is his preference within five days of today's date.

Released: December 17, 2019

Signed: Justice D.J. MacKinnon