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: Family and Children’s Services of Guelph and Wellington County v. O.-D.B. and D.B., 2019 ONCJ 961

DATE: February 13, 2019

COURT FILE No.: C156/17

BETWEEN:

Family and Children’s Services of Guelph and Wellington County.

Applicant,

— AND —

O-D B. and D.B.

Respondents

Before Justice Jane Caspers

Heard on January 22, 2019

Endorsement released on February 13, 2019

Olivia Rebeiro................................................................... counsel for the applicant society

Paul Slan.................................................................................. counsel for the respondents

James Pietrangelo.............................. counsel for the Office of the Children’s Lawyer,

legal representative for the children, Mon.B., I.B. and Man.B.

CASPERS, J.:

1:. INTRODUCTION

[1] The society has brought a motion pursuant to s. 94 of the Child Youth and Family Services Act, 2017 (the “Act”) seeking an order that the children:

A...B…, born […], 2003, aged 15 years (female) (“A.B.”);

N...B..., born […], 2005, aged 13 years (male) (“N.B.”);

Mon...B..., born […], 2007, aged 11 years (male) (“M.B.”);

I… B…, born […], 2008, aged 10 years (female) (“I.B.”);

Man… B…, born […], 2010, aged 8 years (male) (“Man.B”); and

Mar… B..., born […], 2001, aged 18 years (female) (“Mar.B.”)

be placed in the temporary care and custody of the society pending a full hearing, with access to the parents in the discretion of the society.

[2] O-D B. (the “mother”) and D. B. (the “father”), (“the parents”), oppose the society’s motion and seek an order that M.B, I.B. and Man.B.be immediately returned to their care with or without the supervision of the society.

2:. BACKGROUND

Family Constellation

The Parents

[3] The parents own two homes – one in E…, Ontario and a second in Algiers, Algeria. Currently they reside in their home in E…. The mother is the primary caregiver for the children and does not work outside the home. The father is a physician at …..who practices in the Greater Toronto Area. His schedule is flexible as he is required to work only seven days a month in shifts of 10-12 hours per day. The schedule is provided six months in advance in order to allow him to coordinate travel plans for himself and his family[^1].

[4] The parents are from Algeria and as the pleadings disclose, travel regularly between Canada and Algeria.

The Children

[5] There are six children who are the subject of this proceeding. Three live in Ontario and three reside in Algeria.

[6] The children who currently reside in Wellington County are the son, M.B. and his two sisters, I.B and Man. B. They were apprehended from the care of their parents and currently reside in two foster homes. They attend [B…] School. The father deposes that these children have no passports

[7] There are three other children who reside in Algeria who were encompassed by the protection application – daughters A.B. and Mar. B. (who is now 18 years of age) and their brother, N.B. These children continue to reside in F…, Algeria in a 10,000 square foot home on a farm with the paternal grandparents and several other extended family members.[^2] The court is told that they are registered and attend an English language school which offers Ontario Secondary School Diploma Credit courses. They also receive intensive tutoring. Supporting documentation confirming registration is filed[^3]. They are fluent in both Arabic and English.

[8] The adult children who are the not the subject of these proceedings are: Moh… B…. born […], 1989 (“Moh.B.”), Mou… B…, born […], 1990 (“Mou.B.”), Y….B…, born […], 1992 (“Y.B.”), A… B… born […], 1997 (“A.B.”), S…B…born […], 1995 (“S.B.”) and T… B… born […], 1999 (“T.B.”). Moh.B. apparently resides in Algeria and is married. T.B. resides with her parents, S.B. resides in L….., Ontario. The whereabouts of A.B. and Y.B. is unclear.

3:. LITIGATION HISTORY

[9] This current application is not the first protection application brought by the society involving this family. Nor is it the first time that this family has attracted the attention of child protection authorities.

Protection Application July 28, 2017

[10] Proceedings were initiated on July 28, 2017[^4]. At the time the society was concerned about the safety of then 11 year old N.B., whom it was alleged was missing and in the company of his brother, Moh.B. A Canada wide warrant was issued for Moh.B. The referrals were ultimately deemed malicious and were not verified. No charges were laid.

[11] During the proceeding the family travelled to Algeria a move which the society understood would be a permanent relocation. On that basis the society sought leave to withdraw the protection application on January 23, 2018.

[12] According to the documentary evidence filed, three of the children – Mon.B., I.B. and Man. B.– were returned to Canada by the family in the fall of 2018. Mar.B. and A.B. remain in Algeria where they have resided since September, 2017. Moh.B. and N.B. returned to Canada on or about September 12, 2018. On October 18, 2018, N.B. accompanied his father back to Algeria. There he remains. Moh.B. apparently returned to Algeria on or about October 25, 2018 and has married.

Current Protection Application October 25, 2018

[13] The current child protection application involving the six children was issued on October 25, 2018[^5].

[14] A motion was brought without notice to the parents and on an urgent basis and in accordance with Rules 14(4.2) and 14(6) (e.1) of the Family Law Rules. The articulated reasons for so doing are two-fold: the society feared that the children who remained in Ontario would be spirited away to Algeria if notice were given to the parents; and, as a secondary consideration, the society was of the view that notice to the parents might negatively impact the child protection efforts of local child welfare authorities in Algeria, specifically NADA,( the Algerian Network for the Defense of Children) and Global Affairs Canada who were working with the children residing in that jurisdiction.

[15] Situations can arise where it is necessary to act quickly to protect a child from serious ill-treatment by removing the child to a place of safety. Based on the evidence before me on October 25, 2018, that was such a situation.

[16] Notwithstanding that the court raised some concern about its jurisdiction to exercise authority over the children residing in Algeria, given the facts presented and the immediacy of the situation, an interim, interim without prejudice order was made on October 25, 2018 placing the six children – Mar.B., A.B., N.B., Mon. B., I.B. and Man. B.- in the care of the society with access in the discretion of the society. The Office of the Children’s Lawyer was requested to represent the children. The order was extended twice, on November 6, 2018 and again on December 4, 2018. The motion first returnable on October 25, 2018 was adjourned to January 22, 2019 at 10:00am for argument on the issue of temporary care and custody. This is my decision with respect to that motion.

[17] Both parties are represented by counsel, comprehensive materials have been filed and each party has made submissions. The children, Mon. B, I.B. and Man. B., are represented by James Pietrangelo on behalf of the Office of the Children’s Lawyer (OCL).

Position of the Society

[18] In support of its request for an interim care order and in accordance with the relief requested in the protection application, the society posits that all six children – those in Canada and those in Algeria – have suffered physical harm [s. 74(2)(a)(i) and (ii)], are at risk of physical harm [s.74(2)(b) (i),(ii)], require medical treatment to which the parent refuses or is unavailable to consent [s. 74(2)(e)], have suffered emotional harm [s.74(2)(f)] and are at risk of suffering emotional harm [s. 74(2)(h)][^6].

[19] The society seeks confirmation of the interim, interim order made on October 25, 2018 requiring that the six children remain in care with access in the discretion of the society.

Disclosures of the Children

[20] The foundation for the society’s concerns is predicated to a large degree upon the disclosures allegedly made by the children to authority figures in child protection agencies locally and abroad. The allegations are serious. Briefly summarized, the concerns are as follows:

(a) Mar. B. and A.B. have communicated to social worker, Meghan Howe,[^7] and to Nancy Davis (“Ms. Davis”) and Marie-Eve Pomerleau (“Ms. Pomperleau”), Consular Case Management Officers, Family Unit, Global Affairs Canada, located in Algeria, that they are being held in Algeria against their will, are not permitted to attend school and that they wish to return to Canada. It is submitted that this was confirmed by Moh. B.’s 15 year old wife in discussions with Ms. Pomerleau.[^8]

(b) During the course of an interview between social workers, Warren Kurt and Meghan Howe and the children at [B…] School, which took place on October 17, 2018, M.B. disclosed that A.B. was drugged and taken to Algeria in September, 2017 because she did not want to leave Canada.[^9] There were further suggestions that N.B. had also been drugged by his father and taken against his will back to Algeria.[^10] According to the narrative of Ms. Howe, Ms. Davis was provided with photographs of drugs, including Clonazepam, which were obtained fraudulently by the father and which Mar.B. says were administered by her father to N.B.to facilitate the child’s return to Algeria[^11].

(c) On or about October 20, 2018, Mar.B. confided to Ms. Davis, who subsequently reported to the society, that her father was planning to return to Canada on or about October 23, 2018 to retrieve the three remaining children and return them to Algeria. According to Mar.B, should the older daughter, T.B., who resides with her parents, attempt to interfere with the unilateral actions of her father, her father “plans to strangle and/or drug T[….].”[^12]

(d) The parents are wealthy, own multiple properties and can easily travel to evade child protection intervention.[^13]

(e) Mar.B., A.B. and N.B. are not properly supervised in Algeria[^14].

(f) There is a protection proceeding ongoing in Algeria commenced by NADA, the Algerian Network for the Defense of Children, with respect to Mar.B. and A.B. Since N.B. has returned to Algeria, his name will be added to the application to have the children brought into care. In order to facilitate this, Ms. Howe notes that it would be helpful to Algerian authorities if the children in Algeria were subject to a protective order in Canada[^15].

(g) The parents are not able to protect the children from harm and are complicit with Moh.B.in his physical abuse of the children.[^16]The society believes that Moh.B. still poses a risk to the children.

Historical Allegations of Abuse

[21] The affidavits filed by Ms. Howe outline what purports to be a long history of abuse directed by Moh.B. towards the children and arguably, according to the society’s submissions, condoned by the parents.

[22] Through various channels A.B .and Mar.B. have, according to the affidavits filed by the society, indicated to the consular officials that they are fearful of their brother, Moh.B., who has been abusive towards them and towards their older siblings. Allegedly Mou.B. described abuse inflicted upon him by his parents between 1997 and 2003 which included being physically beaten with thick straps, hot irons on his buttocks, tied by his hands and feet and placed in scalding hot water in a bath tub, scalded by utensils, using a propane torch to heat them, regular ice cold showers, wearing a dog collar, gaged with a dirty sock or cloth, his mouth duct-taped closed, starved, given food scraps and his own feces to eat[^17].

[23] In May 2012 Y.B. allegedly reported that Moh.B. had been abusing Mou.B.[^18] This report was not verified.

[24] The court is told that on March 3, 2015 RCMP in British Columbia reported to the society that Mou.B. disclosed having been physically abused by both parents and by Moh.B., which included burning by hot objects and scalding water, being tied up, locked in rooms and deprived of food[^19]. The police reported that the Mou.B had scars to his chest and back matching his descriptions of abuse. The police found the claims credible.

[25] On July 21, 2017, Mar.B. and S.B. reported that Moh.B. had assaulted N.B. 30 times with an ice scraper and strangled him. Mar.B. stated that she was hit by Moh.B. on the back of the head on the same date. The parents were present. The police were called but by the time they arrived N.B. and Moh.B. had left. A warrant was issued for Moh.B’s arrest. It was at this time that the family and Moh.B. returned to Algeria. Moh.B. was never apprehended or formally charged. Given that the family was no longer in Canada, the society withdrew its protection application[^20].

Position of the Parents

[26] The parents deny all allegations.

[27] The parents argue that the wrongheaded and xenophobic suspicions held by the society are “shocking”, “unjustified” and without merit. They question the society’s contention that the children are to be spirited away by “evil, foreign parents”[^21] and argue that the society is justifying its current position by ascribing “sinister motives” to family travel and by relying on historical allegations that the society acknowledges have previously been deemed malicious[^22] and have been either recanted by the children or dismissed by a criminal court.

[28] They submit that the Mon.B, I.B., and Man.B., have been traumatized by their removal from their parents.

Mar.B., A.B. and N.B.

[29] The parents take the position that this court has no jurisdiction to make any order with respect to Mar.B. who is now 18 years of age and residing in Algeria. Nor does this court have jurisdiction over A.B. or N.B., both of whom reside in Algeria.

Mon.B., I.B. and Man.B.

[30] Regarding Mon.B., I.B and Man.B., the plan of the parents is to remain in Canada. In a meeting with Meghan Howe which took place on October 25, 2018[^23], mother denied that there were any plans to take these children to Algeria as alleged by Mar.B. and by an older child, A.

[31] Furthermore, the parents maintain that since coming into care there has been a decline in the physical state of the children. M.B. has lost a lot of weight such that he is dangerously underweight, and when they observed him on November 15, 2018, he was unkempt and smelled.[^24]

[32] In the affidavit filed by Kim Colangelo it is acknowledged that the children have not adjusted well to foster placement. She notes that after coming into care the children refused to take showers, brush their hair follow direction from the foster parents, writing on the walls of the foster home with crayons and markers, filling the toilet with toilet paper to clog it necessitating the involvement of a plumber, leaving feces in the toilet which they refused to flush and urinating and smearing feces on the carpet at the foster parents home and stealing from the foster mother’s purse. In addition, threats have been made against the social workers and foster parents.[^25]

Parents’ Plan

[33] The parents have presented a plan[^26]. They have focused on the children in Ontario as they challenge the jurisdiction of this court with respect to the children who remain in Algeria.

[34] Mon.B, I.B. and Man.B. will reside with their parents. Each of the parents will reside with the children on a rotating basis while the other parent is in Algeria with the children. The children will continue in their current school. Their spiritual needs will be addressed by ongoing attendance at their local mosque in Guelph as well other mosques in Scarborough and Mississauga. They have friends from their school and their mosque with whom they will continue to engage. Their physical, developmental and emotional needs will continue to be met by third party professionals with whom they are engaged. Specifically, their dental needs will be addressed as this was an enumerated concern of the society.

[35] The parents have agreed to a supervision order with terms as proposed by the society. [^27]

4:. ISSUES

[36] The issues before the court are these:

(a) Does the society before the court have locus standi to assume carriage of a case involving a child who is resident outside Ontario?

(b) Should the children Mon. B., I.B. and Man.B., who reside in Ontario, remain in society care or be returned to the care of their parents with or without an order of supervision?

5:. JURISDICTION

[37] One of the more conspicuous holes in the fabric of the Act is the statute’s inability to address various extra-territorial aspects of children within the child protection system.

[38] The issue of territorial jurisdiction is addressed in s. 91 of the Act.

91. • (1) In this section, “territorial jurisdiction” means a society’s territorial jurisdiction under subsection 34 (1).

(2) Place of hearing - A hearing under this Part with respect to a child shall be held in the territorial jurisdiction in which the child ordinarily resides, except that,

(a) where the child is brought to a place of safety before the hearing, the hearing shall be held in the territorial jurisdiction in which the place from which the child was removed is located;

(b) where the child is in interim society care under an order made under paragraph 2 or 4 of subsection 101 (1) or extended society care under an order made under paragraph 3 of subsection 101 (1) or clause 116 (1) (c), the hearing shall be held in the society’s territorial jurisdiction; and

(c) where the child is the subject of an order for society supervision under paragraph 1 of subsection 101 (1) or clause 116 (1) (a), the hearing may be held in the society’s territorial jurisdiction or in the territorial jurisdiction in which the parent or other person with whom the child is placed resides.

[39] This section provides that the child protection hearing must be held in the territorial jurisdiction of the society: (1) in the place from which the child was removed, if the child was brought to a place of safety before the hearing; or (2) in whose care a child was placed under a wardship order.

[40] Where the child ordinarily resides is irrelevant in matters of protection. [Children’s Aid Society of Ottawa v. C.(H.), 2003 41092 (ON SC), 2003 O.J. No 5293, 1 R.F.L. (6th102 (Ont. S.C.J.)]

[41] As Justice Daudlin noted in Children’s Aid Society of Windsor-Essex v. C.C. et al., [2000] O.T.C. 933, 11 Imm. L.R. (3d) 68, [2000 O.J. No. 4991, 2000 CarswellOnt 5019 (Ont. S.C.),

“A society must be able to protect children in [its] territory regardless of the child’s residence.”

In the case of Children’s Aid Society of Ottawa v. H.C. and C.C., 2003 41092, 1 R.F.L. (6th) 102, [2003] O.J. No. 5293, 2003 CarswellOnt 5242 (Ont. Fam. Ct.),[^28] Justice Jennifer A. Blishen referred to Justice Daudlin’s decision and stated:

“ [14] … Under the Child and Family Services Act, [as it then was] the best interests, protection and wellbeing of children are paramount. Children’s aid societies have the mandate and obligation to investigate allegations that children within their territorial jurisdictions [emphasis mine] may be in need of protection and to take action to protect those children, including apprehending children or bringing cases before the court where necessary, regardless of the “ordinary residence” of the children. Whether the children are in the jurisdiction as visitors, tourists, refugees or to attend school should not and does not make a difference when there are protection concerns…..”

[42] No one can argue with the paramountcy of “best interests, protection and wellbeing of children” under the Act or with the duty of children’s aid societies to protect children. But the prominent recitation of these underlying principles does not constitute a logical argument for establishing that a society’s protective duties extend towards all children, whether local and foreign, as if section 91 does not exist.

[43] Facts that add to the outrage of a situation can never confer jurisdiction when none existed before the introduction of those facts that have prompted intervention. The jurisdictional reach of the legislation is crippled beyond the geographical boundaries of the province, unless there are bipartisan treaties or multi-national conventions allowing such intrusions.

[44] Based on the evidence before me today, I find that the primary residence of the children – A.B., Mar.B. and N.B.– is Algeria, where they have been resident for between one and two years. What the society is seeking far exceeds what the legislation contemplates.

[45] The blunt truth is, and I find, that this court has no jurisdiction to apprehend or assume jurisdiction over a foreign child who is not physically present in Ontario and who is apparently in need of protection.

6: EVIDENCE

[46] I have received evidence in this proceeding based on the following documents:

(a) Protection Application and Plan of Care filed by the society dated October 25, 2018.[^29]

(b) Affidavits of child protection worker Meghan Howe dated October 25, 2018, November 2, 2018, November 27, 2018 and January 18, 2019.[^30]

(c) Affidavit of social worker Kim Colangelo dated January 18, 2019.[^31]

(d) Answer and Plan of Care of the parents.[^32]

(e) Affidavits of Djamel Bouazza dated December 3, 2018 and January 17, 2018.[^33]

Hearsay

[47] The temporary care and custody proceeding, though governed by a self-contained code of procedure contained in the Act and the Rules will follow the normal principles of evidence except that the interests of the children are not to be thwarted by an over rigid application of the rules of evidence or procedure. But the interests of the child will always require that the truth be established and the rules of evidence and procedure followed.

[48] The affidavits filed in this motion are replete with triple and quadruple hearsay from both sides.

[49] Subsection 94 (10) of the Act permits the court to admit and act on evidence that the court considers credible and trustworthy in the circumstance. In determining what evidence is credible and trustworthy, the evidence in its entirety must be viewed together. [Family and Children's Service v. R.O., [2006] O.J. No. 969 (OCJ)].

[50] The Divisional Court has held that a society seeking an order for temporary society care at this early stage of a case has only to demonstrate that it has reasonable grounds to believe that there is a protection risk for the child that justifies society intervention. [L.D. v. Durham Children’s Aid Society and R.L. and M.L.], 2005 63827, 21 R.F.L. (6th) 252, [2005] O.J. No. 5050 (Ont. Div. Ct.). The burden on the society at this stage does not go as high as showing that on the balance of probabilities there is an actual risk to the child in the parent’s care. [CCAS of Toronto v. M.L.R., 2011 ONCJ 652].

[51] Evidence is not to be excluded solely on the basis that it is hearsay evidence and it follows that any party can lead evidence of statements made which are either not repeated or denied in court. This is particularly pertinent in relation to statements made by the children to social workers or their own counsel concerning how he or she has been treated.

[52] Nevertheless the fundamental principle is succinctly articulated by Justice Katarynych in her decision in Children’s Aid Society of Toronto v. A.M and S.T., [ 2002 45665 (ON CJ), 2002] O.J. No. 1432 at paragraphs 69 and 70,

“69. Just dealing requires a respect for the rules of evidence. At the risk of stating the obvious, what is evaluated in this motion, as in any other motion, is evidence. Supposition, conjecture, speculation, leaps of hyperbole, innuendo, gossip, unqualified opinion where qualified opinion is required - all have no place in an affidavit. If the decision-making in the motion is to be just, counsel must ensure that the affidavits are stripped of this sort of material before they are filed in the motion record.

70. At this early stage, the evidentiary case can be expected to include information obtained from others that is then advanced through the vehicle of a social worker's affidavit as "credible and trustworthy" evidence. The information must rise to the level of evidence….”

Conflicting Narratives

[53] Compounding the myriad of challenges already existent in this case is the fact that the evidence of the society and the parents is diametrically opposed on many salient points. For example:

(a) That the children relocated to Algeria in September 2017 and did not return as alleged by Ms. Howe.[^34] This was shown to be inaccurate. The parents maintain that the family travelled to visit the maternal grandmother who was ill. Mother returned in April 2018. The parents maintain that their home, bank accounts and father’s employment is in Canada.[^35] The three children in their care attended school locally.

(b) That the children would be unilaterally and surreptitiously removed by the parents. Nancy Davis reported to Meghan Howe that Mar.B. told her that the father was planning to return to Canada to bring the three youngest children back to Algeria and that T.B. would be strangled if she attempted to interfere.[^36]The father alleges that the children have no Algerian passports and that he was scheduled to work as evidenced by his work schedule attached to his affidavit.[^37] T.B. continues to reside with her parents.

(c) Allegations from the children regarding Moh.B.’s abuse of his siblings. The parents deny that any assault have taken place and that the allegations are unsubstantiated and acknowledged by Ms. Howe to be “considered malicious.”[^38] Ms. Howe alleges that the Algerian Network for the Defense of Children and Global Affairs Canada are working with the children. According to the father who has spoken with the police in Algeria and a doctor employed by the Algerian government the police found no signs of abuse[^39].It is conceded that there were no signs of physical abuse observed on the children while in care.[^40] Dr. Burke Baird a physician associated with the Child Assessment and Advocacy Program (CAPP) at McMaster Children’s Hospital examined N.B. on August 2, 2017 and confirmed these findings although he suggested that there may have been injuries that have healed.[^41] Furthermore, Mar.B. apparently signed an affidavit, with independent legal advice, recanting all allegations made with respect to the issue of Moh.B.’s abuse of N.B.[^42]

(d) Mar.B. and A.B. – Communications with Consular Authorities. According to Ms. Howe it was communicated to Nancy Davis by Mar.B. and A.B .that they have been held against their will. According to father the children told him that they have never spoken with Nancy Davis.[^43] Furthermore, according to the father, Mar.B. and A.B. claim never to have made any complaints to authorities.[^44] In fairness, the parents may not know if the children have spoken with consular authorities but father does depose that neither he nor the mother have ever been contacted by NADA.[^45]

(e) Reports from the children that N.B. was drugged and taken to Algeria. The father states that he is a highly-respected member of the medical community and such an allegation is without foundation and defamatory. The suggestion that he would forge a prescription could cost him his license[^46]. The parents submit that N.B. resides in Algeria and when he left Canada in September 2017, and he was, in fact, returning to his primary residence.

(f) Reports that the father and Moh.B. were to be arrested in Algeria. According to Ms. Davis’ disclosures to Ms. Howe, it was the plan of action to arrest the father and Moh.B. when they arrived in Algeria on or about October 25, 2018. This did not happen. Following the arrest, the children in Algeria would be taken into the care by the local child protection authorities. This has not happened.

According to the affidavit of the father, he has crossed the border 5 times since October 2018 and neither he nor Moh.B. have been detained.[^47]

(g) Children in Algeria are left alone. It is alleged by the society that children are left alone in Algeria. According to the father the children are well cared for by an extended family several of whom reside with the children in the same residence.

(h) Children not attending school in Algeria. The society alleges that the children have communicated to Nancy Davis that they are not attending school in Algeria, are prisoners in their home and wish to return to Canada[^48]. According to the parents the children are attending an English-language school that is fully accredited.[^49] It is suggested that the children in Ontario were to be taken surreptitiously to Algeria and yet they were in September 2018, remain registered in [B...] School. Ms. Howe states that she contacted [B...] School on September 20, 2018 and was advised that N.B. was not enrolled[^50] and that this caused some concern. The parents submit that in September 2017 N.B. returned to Algeria as this was his primary residence.

(i) Reports from the Children that they are unsupervised. It is alleged by the society that N.B.is given money and wanders around the mall when father is working. Again, the parents submit that this is not true as members of the extended family reside in the home in Algeria to provide supervision.

(j) Direct communication with Mar.B. Ms. Howe states that she spoke directly with Mar.B.in October, 2018[^51]. This is disputed by the parents who in speaking with Mar. B. maintain that the only communication between Ms. Howe and Mar.B. took place by a way of a voicemail left for Ms. Howe by Mar.B.in November 2018.[^52]

[54] Much of the speculation and confusion might have been prevented had there been primary evidence submitted by way of affidavits from any of the sources referenced by the society. For example, the society could have produced affidavits from representatives from NADA, or from Ms. Davis and/or Ms. Pomerleau from Global Affairs Canada attesting to the status of any Algerian investigation and providing details with respect to any conversations with the children. Police reports with respect to allegations of assault by Moh.B. current and historical where the OPP and RCMP were involved would have been helpful.

[55] The initial proceeding was brought almost 4 months ago, and some supplementary evidence ought to have been made available.

[56] The affidavit evidence filed by the society is full of inaccuracies, speculation, supposition and conjecture. As Justice Katarynych observed in Children’s Aid Society of Toronto v. A.M and S.T, while at the early stage the evidentiary case can be expected to include information from others that is advanced through the vehicle of the social worker’s affidavit as “credible and trustworthy” evidence, the information must rise to the level of what would be considered admissible evidence. The affidavits of the society must be drafted with care so as not to misstate the facts or leap to unfounded conclusions. To use the words of Justice Katarynych, there must be an attention to “proportionality.” In this case factual inferences have been made where there is no factual support for those inferences.

7:. OCL – CHILDREN’S VIEWS AND PREFERENCES

[57] Mr. Pietrangelo has completed a comprehensive series of interviews with the children, Man. B., I.B and Mon.B., who are his young clients as well as with various collaterals.

[58] He advises the court that the children have not reported to him any violence – verbal or physical – by Moh.B. or their parents. Any concerns appear to have been transferred to them by way of allegations made by the older siblings. The only concern these children raised was that they did not want to return to Algeria to live permanently. This is confirmed in the narrative of Ms. Howe.[^53]

[59] The children are in two different foster homes. I.B. is in his fourth foster home while Man.B. and M.B. are in their third foster home. While there were extreme behavioural issues at the outset, the court is advised that the children have settled, are stable and are generally doing well. At school there appear to be no academic or behavioural issues identified.

[60] The children have been seeing their mother and their older siblings T.B. and S.B., regularly on a supervised basis. Father has been less consistent. As far as Moh.B.is concerned, while these children appear to have had no negative experiences with their brother, they did refer to Moh.B. as “mean” and “bad” based on information provided to them from their older siblings. They have had virtually no contact with their siblings in Algeria whom they miss.

[61] The children have, through there counsel, suggested an alternate plan to living with their parents and that would be placement with their sister, S.B., in London, Ontario. That plan has not yet been explored. Nevertheless, they would be content to return to live with their parents although they each expressed a concern about being taken to Algeria. Having said that they have advised their counsel that they believe that their mother and sister would intervene should father attempt to relocate the children out of the country.

[62] The court has taken into consideration the children’s views and wishes and has given due weight in accordance with the children’s age and maturity pursuant to s. 94(11) of the Act.

8:. DISCUSSION

[63] Although family autonomy may be regarded as a hallmark of a democratic society, it is accepted that there is a duty on a modern state to make provision through its social work agencies for the assistance, support and protection of children who are vulnerable when the family of which they are a part becomes dysfunctional. At one extreme this may take the form of advice and guidance to the family, at the other, it might involve the compulsory removal of the child or children from the family.

[64] In the latter situation, two points must be stressed. First, not only are parental responsibilities and rights being overridden, but also the child is being deprived of his or her liberty. It is therefore important that the law should provide procedural safeguards to ensure that these interests are adequately represented before a decision is made which would deprive parents of their child and a child of his or her family.

[65] The degree of intrusiveness of the society's intervention and the interim protection ordered by the court must be proportional to the degree of risk. [CCAS of Toronto v. J.O.1, 2012 ONCJ 269].

[66] The onus of proof or criteria is the same when the society is requesting a non-removal order pursuant to clause 94 (2) (b) of the Act or a removal order pursuant to clauses 94 (2) (c) and (d) of the Act - the issue to be determined in making the non-removal order under clause 94 (2) (b) is whether or not the society has reasonable grounds to believe that there is a probable risk that the child will suffer harm if reasonable terms and conditions of a supervision order are not imposed. [Children's Aid Society of Halton Region v. Z. (T.A.), 2012 ONCJ 231, par. 20].

[67] Writing in Children's Aid Society of Ottawa-Carleton v. T, 2000 21157 (ON SC), [2000] O.J. No. 2273 at paragraph 10, Justice Blishen summarized the test on an interim care and custody proceeding as follows:

“10. … The Children's Aid Society must establish, on credible and trustworthy evidence, reasonable grounds to believe that there is a real possibility that if the child is returned to his parents, it is more probable than not that he will suffer harm. Further, the Society must establish that the child cannot be adequately protected by terms and conditions of an interim supervision order to the parents.”

[68] In assessing risk, the court should consider the potential exposure of the children to violence. [Children's Aid Society of Algoma v. B.W. and R.M., 2002 CarswellOnt 5500 (OCJ).] Exposure to a pattern of violence in the home, as is suggested in this case, if substantiated, has been accepted as creating a risk of emotional harm to children. [Children's Aid Society of Toronto v. M.S., [2010] O.J. No. 2876 (SCJ)].

[69] In this case, Mon.B., I.B. and Man. B. have not indicated that they have suffered abuse at the hands of their parents. They have told their counsel that most of the information they have about Moh.B. comes from their older siblings. They are doing well in care but would like to go home. They are confident that their mother and sister, T., would keep them safe. They are attending school regularly and are doing well and appear socially well-adjusted.

[70] What the children do not want is to be removed from Canada and permanently returned to Algeria.

[71] I find today that there are concerns raised in the pleadings which have not been satisfactorily answered. However, the society‘s evidence on this motion falls short of establishing that there are reasonable and probable grounds to believe that there is a real possibility that if Mon.B., I.B. and Man. B. are returned to the care of their parents, it is more probable than not, that they will suffer harm.

[72] Justice Sherr notes at paragraph 19 of his decision in Children’s Aid Society of Toronto v. Y.C and W.D.L., 2007 ONCJ 479 :

“… the court requires much more than suspicion before it makes an order keeping a child in care at a temporary care and custody motion. It needs tangible, not speculative evidence that there is a real possibility that it is more probable than not that the child will suffer harm if returned to the parent. Such evidence was not provided here.”

[73] What the society wanted presumed a strength in the society’s case that does not exist on the evidentiary record.

[74] Counsel for the society submits that if I return the children to the parents’ care, Global Affairs will not release documents to the society. I am unclear as to why that should be the case. However, I must nonetheless determine the issue based on the information before me. The Algerian child protection authorities must do the same.

9:. DECISION

[75] The Act gives priority to the person who had charge of the children prior to society intervention under Part III of the Act (subsection 51(2) of the Act). I find that the children M.B., I.B. and Man.B. can be returned safely to one or both of their parents under reasonable terms and conditions.

[76] I am satisfied that two issues need to be addressed for me to safely return the children to their parents – the concerns of the children that they will be returned to Algeria against their wishes and the involvement of Moh.B. with the children who reside in this jurisdiction. Currently the court is advised that Moh.B. resides in Algeria and therefore poses no imminent threat to the safety and well-being of the children.

[77] Subsection 94 (6) applies to an order being made in accordance with clause 94 (2) (b) for a temporary supervision order. [Catholic Children's Aid Society of Hamilton v. P. (C.R.), 2011 ONSC 2056]. The society has presented proposed terms for consideration by the parents. The parents have agreed to the terms requested by the society.

[78] I am prepared to endorse the terms proposed by the society and accepted by the parents with some modifications to the terms relating to relocation of and travel with the children and with respect to the presence of Moh.B.in this country and his interaction with his Ontario siblings.

[79] With respect to relocation/travel, I propose to impose the following terms: The parents shall not relocate with the children without providing 30 days’ written notice to the society and receiving its written consent. The parents shall not travel outside of Ontario with the children without obtaining the prior written consent of the society. The parents shall surrender all travel documents for the children to the society before the children are returned to the care of their mother. The parents shall undertake not to apply for new or replacement passports for the children and the children shall be placed on the Passport Program System Lockout List by the society immediately and within 7 days.

[80] With respect to Moh.B., if he should return to Canada from Algeria for a holiday or permanently, the mother shall within 24 hours of receiving such confirmation notify the society, in writing, of the dates of his anticipated arrival. The other terms proposed by the society I feel will ensure the safety of the children.

[81] Therefore, there shall be an interim order as follows:

ORDER:

1. M.B., born […], 2007, I.B., born […], 2008 and Man.B., born […], 2010 (referred to below as “the children”) will be placed in the care of their mother, O-D.B., subject to the supervision of the Family and Children’s Services of Guelph and Wellington County subject to the conditions as follows:

a. O-D.B. shall meet with representatives of Family and Children’s Services of Guelph and Wellington County as requested by Child Protection Workers. Such meetings will occur at the home of O-D.B. and D.B., as requested by Child Protection Workers.

b. D.B. shall meet with representatives of Family and Children’s Services of Guelph and Wellington County as requested by Child Protection Workers and at a location suggested by the worker.

c. Child Protection Workers from Family and Children’s Services of Guelph and Wellington County may meet privately, at any time and at any location with the children; M.B. born […], 2007, I.B. born […], 2008 and Man.B. born […], 2010.

d. O-D.B. and D.B. shall always ensure that Family and Children’s Services of Guelph and Wellington County have current contact information for the parents and the children.

e. O-D.B. and D.B. shall not relocate with the children without the written consent of Family and Children’s Services of Guelph and Wellington County. Such consent shall be requested at least 30 days’ in advance of any proposed move.

f. O-D.B. and D.B. shall ensure that the children do not travel outside Ontario without the prior written consent of Family and Children’s Services of Guelph and Wellington County or a court order.

g. O-D.B. and D.B. shall surrender all travel documents in the name of the children (i.e. passports) to Family and Children’s Services of Guelph and Wellington County immediately and prior to the return of the children to the care of O-D.B.

h. O-D.B. and D.B. shall undertake to have no new or replacement passports issued for the children without the explicit written consent of Family and Children’s Services of Guelph and Wellington County.

i. M.B., born […], 2007, I.B., born […], 2008 and Man.B., born […], 2010 shall immediately, and within 7 days, be placed on the Passport Program System Lookout List by Family and Children’s Services of Guelph and Wellington County.

j. O-D.B. and D.B. will sign consents authorizing the release of any information to Family and Children’s Services of Guelph and Wellington County regarding the children.

k. O-D.B. and D.B. will ensure their adult son, Moh.B., does not reside at the family home.

l. If Moh.B. should return to Canada from Algeria for a holiday or permanently, O-D.B. shall, within 24 hours of receiving such confirmation, notify the society, in writing, of the dates of his anticipated arrival.

m. O-D.B. and D.B. will not facilitate access between their son, Moh. B., and the children without advance approval of Family and Children’s Services of Guelph and Wellington County.

n. Access between Moh. B., and the children will be supervised by Family and Children’s Services of Guelph and Wellington County or an agreed upon third party.

o. O-D.B. will ensure that the children are enrolled in and attending school within Wellington County.

p. O-D.B. will ensure that the children are seen by medical professionals and ensure that all recommendations and follow up is completed in a timely manner as recommended by the children’s family doctor or other medical professionals involved with the children.

q. O-D.B. will ensure that the children will have regular dental checkups completed on a schedule determined by the dentist. All recommended work and procedures will be completed in a timely manner.

r. O-D.B. and D.B. will allow the children to connect with the Child and Youth Worker (or similar) at the school. O-D.B. and D.B. will sign consents with the school to allow this to happen.

s. O-D.B. and D.B. will promptly identify at least one person outside the immediate family who can be a part of a network of support. This person will be aware of the concerns of the society and will agree to be a part of a safety plan and regular check in’s with the family.

t. The children will not be subject to any physical discipline.

Released: February 13, 2019

Signed: Justice Jane Caspers

[^1]: Volume 2, tab 7, paragraph 64. [^2]: Volume 2, tab 7, paragraphs 65,68. [^3]: Volume 2, tab 7, paragraph 66 and Exhibit “C”. [^4]: Volume 1, tab 2. [^5]: Volume 2, tab 2. [^6]: Volume 2, tab 2. [^7]: Volume 2, tab 3, paragraph 16, 24, 47 and 48. [^8]: Volume 2, tab 3, paragraph 48. [^9]: Volume 2, tab 3, paragraph 35. [^10]: Volume 2, tab 3, Paragraph 18, 37. [^11]: Volume 2, tab 7, paragraph 38. [^12]: Volume 2, tab 3, paragraphs 19-20. [^13]: Volume 2, tab 3, paragraph 21. [^14]: Volume 2, tab 3, paragraphs 24 and 25. [^15]: Volume 2, tab 3, paragraph 22 and 41. [^16]: Volume 2, tab 3, paragraph 52. [^17]: Volume 2, tab 3, paragraph 56. [^18]: Volume 2, tab 3, paragraphs 66-70. [^19]: Volume 2, tab 3, 54-57. [^20]: Volume 2, tab 3, paragraph 52. [^21]: Volume 2, tab 7, paragraph 6 [^22]: Volume 2, tab 3, paragraph 70. [^23]: Volume 2, tab 4, paragraph 5. [^24]: Volume 2, tab 7, paragraph 8, 12. [^25]: Volume 2, tab 10, paragraphs 15-21. [^26]: Volume 2, tab 6. [^27]: Volume 2, tab 9. [^28]: The reasoning of this case was approved and applied by Justice Penny J. Jones in Children’s Aid Society of Toronto v. Antonia Z. and Christos C., 2006 ONCJ 155, 147 A.C.W.S. (3d) 1006, [2006] O.J. No. 1742, 2006 CarswellOnt 2641 (Ont. C.J.). [^29]: Volume 2, tab 1. [^30]: Volume 2 tabs 3, 4, 5 and 9. [^31]: Volume 2, tab 10 [^32]: Volume 2, tab 6. [^33]: Volume 2, tabs 7 and 8. [^34]: Volume 2, tab 3, paragraph 13. [^35]: Volume 2, tab 7, paragraph 21. [^36]: Volume 2, tab 3, paragraph 19, 20. [^37]: Volume 2, tab 7, paragraphs 15 and 16 and Exhibit “A”. [^38]: Volume 2, tab 3, paragraph 70. [^39]: Volume 2, tab 7, paragraphs 18, 19 and 26. [^40]: Volume 2, tab 7, paragraph 38. [^41]: Volume 2, tab 9, paragraph 36. [^42]: Volume 2, tab 7, paragraph 54. [^43]: Volume 2, tab 7, paragraph 24. [^44]: Volume 2, tab 7, paragraph 25. [^45]: Volume 2, tab 7, paragraph 49. [^46]: Volume 2, tab 7, paragraphs 28-30. [^47]: Volume 2, tab 7, paragraph 32. [^48]: Volume 2, tab 3, paragraph 16. [^49]: Volume 2, tab 7, paragraph 34 and Exhibit “C”. [^50]: Volume 2, tab 3, paragraph 28 [^51]: Volume 2, tab 3, paragraph 47. [^52]: Volume 2, tab 7, paragraph 52. [^53]: Volume 2, tab 3, paragraph 17.