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: March 11, 2020

Court File No.: Brantford OC 373/17

Between:

Ogwadeni:deo Applicant

— And —

J.R. and J.M. and Six Nations of the Grand River Respondents

Before: Justice A.D. Hilliard

Heard on: February 20, 2020

Reasons for Judgment released on: March 11, 2020

Counsel

• Fallon, P. — counsel for the applicant society
• Lyons, J. — counsel for the respondent J.R.
• Montour, E. — counsel for the respondent J.M.
• Elchami, M. — counsel for the respondent Six Nations of the Grand River
• Binning, S. — counsel for the Office of the Children's Lawyer, legal representative for Zy.R., Za.R.
• Giles, A. — counsel for the Office of the Children's Lawyer, legal representative for Z.G.R.

Judgment

Hilliard J.:

Overview

[1] This is a motion brought by the Respondent father, J.M., to reinstate his unsupervised access to the two younger subject children Zy.R. and Za.R.

[2] The issues for me to determine on this motion are:

(1) Does my order of September 9, 2019 provide Ogwadeni:deo (OGD) the authority to change the Respondent father's access from unsupervised to supervised without a further court order?

(2) Should the Respondent father's access be supervised or unsupervised?

Background

[3] A protection application was commenced in 2017 that was ultimately dismissed on December 19, 2017, after the parties had entered into a voluntary service agreement.

[4] A second protection application was issued on January 26, 2018, which is the current proceeding. To date there have been no statutory or protection findings made.

[5] There are three children who are the subject of this application. The children have never been in the care of OGD or any child protection agency.

[6] Both protection applications requested an order placing the children in the care of the Respondent mother under terms of supervision, and for the Respondent father's access to be subject to terms of supervision.

[7] The Respondent father has another biological child, J.M., who is the subject of a separate child protection proceeding which is ongoing but is being heard separately from this application.

[8] The protection concerns regarding the Respondent father as set out in the current protection application are inappropriate physical discipline of the children, and exposing the children to adult conflict.

[9] There have been a number of interim orders made in this proceeding, including two consent orders regarding the Respondent father's access, made on June 22, 2018 and April 16, 2019 respectively.

[10] On September 9, 2019, I made an Order on the consent of all parties that provided as follows:

On consent, access pursuant to the April 16, 2019 order shall be resumed, subject to the discretion of Ogwadeni:deo and the following terms:

(a) The Respondent J.M., to sign consents regarding drug screening with his doctor, within thirty (30) days of receiving same;

(b) The Respondent J.M., to only use his medication as prescribed by his doctor;

(c) The Respondent J.M., must meet regularly with the worker and cooperate; and shall respond to messages promptly and schedule meetings promptly;

(d) The Respondent J.M., shall not transport the children without valid licence, insurance, safe vehicle and appropriate car seats;

(e) The Respondent J.M., shall not leave another individual in care of the children unless approved by Ogwadeni:deo;

(f) The Respondent J.M., shall not allow any individuals to spend the night without prior approval of Ogwadeni:deo;

(g) The Respondent J.M., shall not allow the children to bathe together;

(h) The Respondent J.M., shall not sleep during the day while in a caregiving role to the children unless there is an approved individual supervising the children;

(i) The Respondent J.M., shall ensure there is sufficient food at home for the children;

(j) The Respondent J.M., shall meet with a worker from Ogwadeni:deo within seven (7) days of today's date;

(k) The terms of the April 16, 2019 order shall remain in force and effect.

[11] The April 16, 2019 order, which has yet to be taken out, provides for father to have specified unsupervised access with the children.

[12] On September 17, 2019, the Respondent father had a meeting with support team members at OGD to discuss concerns the agency had regarding father's access with the children. The Respondent father was uncooperative and confrontational during that meeting, and ultimately terminated the meeting early.

[13] On September 30, 2019, a support team member from OGD met with the children. The oldest child reported that she continued to have to look after her younger siblings during access visits as the Respondent father spent most of the visit locked in his room. The two younger children both reported an unknown male was present overnight in the residence and confirmed that the Respondent father was spending significant periods of time in his room. The youngest child complained that there was not enough food to eat during access and he was hungry after the visit.

[14] On October 8, 2019, a support team member from OGD again met with the children. They did not report any concerns about the previous visit.

[15] On October 10, 2019, a support team member from OGD transported the children from the Respondent father's residence immediately after an access visit. Two of the children indicated that the Respondent father spent significant periods of time in his room with the door locked. The oldest child again indicated that she had to care for her younger siblings while at the Respondent father's residence as he was locked in his room. As a result, the oldest child indicated that she no longer wished to attend access visits.

[16] On October 11, 2019, OGD made the decision to suspend the Respondent father's unsupervised access.

[17] On October 15, 2019, OGD determined that the Respondent father would be offered supervised day access at OGD's supervised access centre.

Issue 1: Did OGD have the authority to suspend the Respondent father's unsupervised access without a court order?

[18] The Respondent father takes the position that the suspension of his unsupervised access by OGD amounts to a technical apprehension of the children, and a motion should therefore have been brought seeking a change to my Order of September 9, 2019.

[19] OGD and OCL counsel argue that the terms of the Order itself specify that the Respondent father's access is generally subject to the discretion of OGD and subject to terms with which father did not comply.

[20] During argument, OCL counsel specifically pointed out that there is no minimum provision for access contained in the September 9, 2019 Order.

[21] The Respondent mother supports the position of OGD. The Band supports the position of the Respondent father.

[22] On a strict reading of the terms of my Order of September 9, 2019 OGD has the ability to exercise its residual discretion to change the Respondent father's access without a further court order. However, it was, in my view, ill advised for OGD to simply rely on the residual discretion clause in the order rather than bringing a motion requesting the suspension of the Respondent father's unsupervised access.

[23] I find on the evidence before me that there were new protection concerns arising after September 9, 2019, which formed the basis for OGD's position that the children were not safe having unsupervised access with the Respondent father. Those protection concerns were the basis for OGD invoking their residual discretion and suspending the Respondent father's unsupervised access.

[24] However, OGD should have immediately brought a motion to suspend the Respondent father's supervised access after his unsupervised access was revoked. The Order of September 9, 2019 provided the Respondent father with specific periods of unsupervised access, unlike an Order providing the Respondent father with access in the discretion of the agency. It is understandable that the Respondent father expected that if his unsupervised access was suspended, the matter would return to court to allow him an opportunity to respond to the new allegations.

[25] Although it would have been preferable for OGD to have brought a motion specifically requesting a court order suspending the Respondent's father's access, I find that based on the terms of my September 9, 2019 order a motion was not required, and therefore OGD is not in violation of the terms of that order. The suspension of the Respondent father's access did not therefore amount to a technical apprehension in these circumstances.

Issue 2: Should the Respondent father's access be supervised?

[26] The Respondent father has brought a motion seeking unsupervised access, so I must determine what is the least intrusive order that can be made for the Respondent father to have access to the children, while ensuring their safety in light of the protection concerns.

[27] The Respondent father acknowledges in his affidavit evidence that another child in his care, J.M., was apprehended around the time that the decision was made by OGD to suspend his unsupervised access with all three children. Although the affidavit of the support team member does not specifically reference the apprehension of J.M. as a factor in deciding that the Respondent father's unsupervised access was to be suspended, I find that there is no possibility that it is merely a coincidence.

[28] On the affidavit material that is before me, it is clear that protection concerns arose after September 9, 2019 regarding the Respondent father's care of J.M., the full details of which are in the knowledge and possession of OGD, but, for whatever reason, have not been provided to the court. Other than a case note from a support team member attached as an Exhibit to the Affidavit of Leanna Joy Bomberry, the details of the allegations that led to the apprehension of J.M. are not in evidence before me on this motion. OGD's affidavit evidence does not specifically refer to, or acknowledge that, a child in the Respondent father's care was apprehended since September 9, 2019.

[29] In order for me to make a fair and just determination as to the protection concerns relating to the Respondent father's care of the children, all available evidence should have been presented by OGD. That was not done in this case.

[30] OGD is a child protection agency mandated by legislation to ensure the protection and wellbeing of children within its territorial jurisdiction. As a result of this mandate, OGD is provided significant resources to investigate and gather evidence relating to protection concerns brought to that agency's attention. OGD has an obligation to put all relevant evidence before the court as it relates to concerns that have arisen regarding a parent's ability to provide adequate care for a child or children. OGD has failed to discharge its obligation in that regard on this motion.

[31] OGD also has an obligation to ensure the confidentiality of the identity of children subject to child protection proceedings. The full first name of the child, J.M., was disclosed in the evidence filed by OGD in these proceedings. J.M. is not a subject child of this application, but is a child subject to a separate child protection proceeding. By providing J.M.'s name in the evidence on these proceedings, OGD has failed to meet its obligation to ensure J.M.'s privacy and confidentiality. However, ensuring the confidentiality of the identity of a child does not preclude OGD from presenting evidence about protection concerns related to that child. Protection concerns related to the Respondent father's ability to care for and adequately supervise a child in his care is clearly relevant evidence in this proceeding.

[32] On a thorough reading of the evidence before me on this motion, I find that serious concerns have arisen since September 9, 2019 as to the adequacy of the Respondent father's supervision of the children while in his unsupervised care. The basis of those concerns are the disclosures of the subject children in this application, as well as the direct evidence of the circumstances of the child, J.M.'s apprehension.

[33] There is some evidence that there was a disclosure by the child J.M., of sexual interference while that child was in the Respondent father's care. However, I have no basis upon which to assess the veracity of that allegation as the only reference to it is in the case note referred to above and appended as an Exhibit to an affidavit. I am therefore left with a possible inference based on the evidence that is before me, that a lack of supervision by the Respondent father may have resulted in an individual sexually interfering with J.M.

[34] The failure of OGD to provide adequate evidence as to the protection concerns regarding the Respondent's father's care of his children does not mean, however, that the Respondent father is automatically successful. I must still ensure that I have met my statutory obligation to make orders only in the best interests of the children. Considerations as to the children's safety in the care of a parent seeking access is part of determining what order is in the children's best interests.

[35] As this is the Respondent father's motion for specific periods of unsupervised access with the children, the onus lies on him to demonstrate that the order he is seeking is in the best interests of the children and adequately addresses the protection concerns raised in the evidence before me on this motion.

[36] The Respondent father's affidavit evidence does not specifically address the concerns set out about his lack of supervision other than with denials. There is no evidence from the Respondent father providing an alternate version of what transpired in his home during access visits. At no time does the Respondent father give details of how he spent time with the children during access, what activities he did with the children, or even to what extent he was present in the same room with the children throughout access visits.

[37] I find that the requirement at subparagraph (e) of the September 9, 2019 order makes it clear that the Respondent father is not to leave any other individual to care for the children during his access periods. I accept the evidence of the support team member that the oldest subject child often felt that she was the individual in father's home who was responsible for caring for the younger children.

[38] The condition in the order at subparagraph (h) that father is not to sleep during access periods, I find was also included to ensure that the Respondent father is adequately supervising the children during his access periods. Whether the Respondent father was asleep in his room with the door shut or awake, I find that there were periods of time during access, where the Respondent father was failing to adequately supervise the children.

[39] The Respondent father denies the concern raised about not having enough food for the children during an access visit. He states that the support team member did not take any steps to investigate what food he had at his residence when the children were picked up after an access visit, but he gives no examples of meals that he prepared for the children to eat while they were visiting at his home.

[40] Subparagraph (i) of my order places a positive obligation on the Respondent father to ensure that there is sufficient food in his home during periods of access. I find that the Respondent father could have taken active steps to satisfy the worker as to the food available in his home for the children but failed to do so, choosing instead to simply accuse the worker of not properly investigating. It was also an option for the Respondent father to provide a description of the food in his home in his evidence on this motion but chose not to.

[41] One of the terms of my September 9, 2019 order was that the Respondent father was to provide consents for OGD to obtain drug screens results from his doctor. The Respondent father had not provided his consent to obtain drug screens as of the date of the argument of this motion.

[42] The Respondent father has also failed to comply with subparagraph (c) of my order requiring him to meet and cooperate with the support team member. By terminating the September 17, 2019 meeting early and failing to meaningfully engage with support team members, the Respondent father was not meeting his obligations under the court order.

[43] The fact that it is undisputed that father's supervised access visits have been positive overall does not necessarily lead to the conclusion that his unsupervised access should resume. At no point does the Respondent father acknowledge the concerns about a lack of supervision of the children at his home during unsupervised access. Even if the Respondent father does not agree that he has failed to adequately supervise the children during access, that does not preclude him from acknowledging the concern, and making a commitment to be more vigilant.

[44] Throughout these proceedings the Respondent father has alleged that the Respondent mother is attempting to influence the children and encourage the children to say things about their father that are untrue. It has been suggested that the children's concerns shared with the worker are not independently formed, but rather arise from suggestions made by their mother. I accept the evidence of OGD that the children have told the support team member about the lack of parental supervision at the Respondent father's residence, immediately after an access visit. The children making these statements on the drive home from father's residence leads me to conclude that these statements are an accurate reflection of their time with the Respondent father, and were not influenced by the Respondent mother.

[45] I find that the expectations of the Respondent father were clearly set out in the September 9, 2019 order. At a minimum, the Respondent father was expected to adequately care for and supervise the children during his access visits. There is credible and reliable evidence on this motion that I accept that leads me to conclude that the Respondent father failed to meet his obligations under the order.

[46] The Respondent father does not indicate anywhere in his evidence on this motion, how he will work to address the ongoing protection concerns, should his unsupervised access be reinstated. Instead, the Respondent father focussed on the failure of OGD to properly investigate reported concerns and the perceived bias against him. The Respondent father's evidence addresses his perception that his parental rights have been interfered with but never once acknowledges his obligations, both under the court order or as a parent generally.

[47] In considering whether the protection concerns can be adequately addressed by an order for unsupervised access, I must consider the Respondent father's evidence as to how he plans to address and remedy the concerns raised. I find that there is no evidence presented by the Respondent father on his motion that satisfies me that he plans to address the concerns raised about the lack of supervision of the children in his home. Without evidence of a plan to address those concerns during unsupervised access, I am not satisfied that an order for unsupervised access will adequately protect the children in the Respondent father's care.

[48] Given all of the foregoing, I find that an order for unsupervised access to the Respondent father is not in the children's best interests at this time.

Conclusion

[49] The Respondent father's motion for unsupervised access is dismissed.

[50] The parties may make submissions on the issue of costs, if they wish, within 14 days. Any party responding to a request for costs shall have 14 days from the date they receive costs submissions to reply. Submissions on costs shall be sent to my attention through the judicial secretary, and not presented at the counter to be filed in the continuing record.

Released: March 11, 2020

Signed: Justice A.D. Hilliard