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: April 30, 2020
Court File No.: C309247/19
Between:
Children's Aid Society of Toronto Applicant
— AND —
M.M. (mother) P.V. (father) M.M. (maternal grandfather) Respondents
Before: Justice Roselyn Zisman
Heard on: April 24, 2020
Reasons for Judgment released on: April 30, 2020
Counsel
Karen Ksienski — counsel for the applicant society
Lisa Johnson — counsel for the respondent M.M. (mother)
Helen Kurgatnikov Miller — counsel for A.M. (maternal grandmother)
No appearance by or on behalf of P.V. (father) or M.M. (maternal grandfather)
Decision on Temporary Motion
Zisman, J.:
Introduction
[1] This is a motion by the Catholic Children's Aid Society of Toronto (society), pursuant to subsection 94(9) of the Child, Youth and Family Services Act, to change the placement of the child, M.A.M. (M) who just turned 3 years old, to place her in the temporary care and control of the society.
[2] A.M. (the maternal grandmother[1]) also filed a Notice of Motion for the child to be placed in her care.
[3] The motion was heard by telephone conference. The parties affirmed that the contents of their respective affidavits were true.
[4] The society relied on the affidavits of the family service worker Gabriela Ivan sworn July 11, 2019, March 17, 2019 and April 21, 2020, and the endorsements of the court dated December 4, 2019 and February 28, 2020. The society also filed an Amended Protection Application.
[5] The mother relied on her affidavit dated April 20, 2020. The mother is unable to presently care for the child and supports placement with the grandmother.
[6] The grandmother relies on her affidavits dated April 15, 2020 and April 23, 2020.
[7] The father, who resides in the Philippines, did not file any documents but attached to the grandmother's affidavit is an email stating he supports the child being placed with the grandmother.
[8] The grandfather did not appear or file any documents. He has advised the society that as he lost his housing he is not able to care for the child. His position on this motion is not known to the court.
Background and Undisputed Facts
[9] Although a deal of material was filed on this motion, the basic facts are not disputed.
[10] The mother was born and raised in the Philippines. She is presently 22 years old.
[11] The grandmother and the grandfather met in 2002. He is not the mother's biological father. He was 18 years old[2] and the grandmother was 38 years old.
[12] When the mother was about 3 years old, the grandmother left her with the grandfather who then raised her. He is the only father she has ever known and only found out through strangers that she was adopted by him.
[13] In 2003, the grandmother went to Hong Kong and then in February 2010 to Canada and worked as a live-in caregiver. She attached some positive references as exhibits to her affidavit.
[14] Between 2003 and 2012, the grandmother visited Philippines 6 times for a month each time. She also sent money to the family.
[15] In 2013, the mother's teacher contacted the grandmother and told her that she was worried about the mother. The mother had alleged that her stepfather (the grandfather) had sexually assaulted her. The grandmother told them to report this to the police. She stated that as she was in Canada there was nothing she could do about it.
[16] The mother states that when she was about 14 years old she told her mother that the grandfather had touched her inappropriately when she was 13 years old. Her mother did not believe her. It was the mother's understanding that her mother and the grandfather's mother spoke to the grandfather and he denied anything happened.
[17] The mother then went to live with her boyfriend's family. The grandfather left the home to move in with his girlfriend with whom he subsequently had two children. The mother and her aunt then moved back into the family home. The mother never lived with the grandfather again.
[18] However, in 2016, the grandmother sponsored both the mother and the grandfather to come to Canada.
[19] The mother and the grandfather arrived in September 2016. They all moved into one bedroom in a two-bedroom apartment. Another family lived in the other bedroom.
[20] The grandmother was not aware that the mother was 18 weeks pregnant when she arrived in Canada. The mother attended one pre-natal visit and then did not show up for further appointments despite having already received her OHIP card.
[21] When the baby was born, she had a low Apgar score, had an infection and needed to be revived upon birth.
[22] The society was alerted by the hospital when the mother gave birth as the mother was only 19 years old and there were concerns about her parenting capacity and skills.
[23] The society verified these concerns and a plan was implemented that the grandparents assume primary responsibility for the care of the child.
[24] The society worker Ms DeFonte noted that both the mother and the grandmother presented as caring, loving and affectionate with the baby. However, they required ongoing education about child development, child's medical care and needs, teachings about home and baby safety, appropriate feedings as well as encouragement to develop a healthy attachment. The mother's attachment to the baby was questionable as she presented with a flat affect. A parent support referral was made to assist the family.
[25] Gabriela Ivan was assigned as the family service worker. The family worked cooperatively with the society and with community supports. As the file was designed high risk, Ms Ivan visited the family bi-weekly in order to monitor and provide support.
[26] The mother slowly began to transition into her parenting role and became comfortable parenting on her own. As the mother was going to school full-time, the grandparents were taking turns caring for the child during the day. However, this arrangement changed when the grandparents' work schedule changed so they could no longer assist and the child was then placed in daycare.
[27] In the summer of 2018, when the child was just 1 year old, the grandmother went to the United States to stay with an aunt to work as she felt there would be good opportunities there. Both the mother and the grandfather agreed and the plan was to eventually have them join her.
[28] The mother continued to reside with the grandfather. However, she was then left with minimal supports as the grandfather was working three jobs. The mother eventually left school as she found it too difficult to attend school and care for the child full-time.
[29] From the summer of 2018 to May 2019, the grandmother was in almost daily contact with the mother, the grandfather and the child by telephone and video conferencing.
[30] By April 2019, the grandmother began to learn from the grandfather that there were issues with the mother going missing from the home and at times the grandfather did not know where she and the baby were.
[31] Ms Ivan met with the mother and the grandfather on May 3, 2019. The mother could not explain why the child had not been in daycare for a week. The mother said she had been staying with a friend. The mother needed to be told to change the child, there were insect bites on the child's legs and scratches from scratching them. The mother had no diapers so only wiped the child and changed her clothes.
[32] The mother stated that she was having a hard time dealing with the break-up with the child's father, who was in the Philippines, as they had been together for a long time. The mother denied abusing drugs or alcohol but admitted that some of the choices she had made recently put herself and the child at risk.
[33] The mother agreed to a plan that the grandfather would support her to ensure the child attended daycare and she would stay at home so the child would have a routine and structure and sleep in her crib. The grandfather committed to giving up one of his jobs to support the mother with the child.
[34] On May 14, Ms Ivan attended at the home and the grandmother joined for part of the meeting by Skype. The grandfather advised that following the May 3 meeting the mother left the home and had not been home since. He tried to encourage her to come home telling her that her daughter missed her, but she did not respond.
[35] Other meetings took place in May and June between Ms Ivan and the grandfather and the grandmother joining by Skype. The plan that was developed was that the grandfather was to be assessed as a kin placement and that the society would be commencing a Protection Application.
[36] At no time during these meetings or at any other time did the grandmother raise any concerns about the care that the grandfather was providing to the child.
[37] In July 2019, the society commenced a Protection Application. On July 18, 2019 a temporary without prejudice order was made placing the child in the care of the grandfather with terms of supervision.
[38] The mother now raises concerns about grandfather's care of the child. These concerns were historical and were raised at the time with the father and the court.
[39] For example, on December 4, the court was advised that the kinship plan with respect to the grandfather was approved although the society did raise some concerns. The court was advised that the grandfather has been transporting the child without a car seat, however he committed to not do this again. The court was also advised that that the mother had not been having contact with the child.
[40] On January 10, 2020, the grandfather expressed concerns to Ms Ivan that the grandmother would be returning to Canada unexpectedly. He was worried as they were no longer in a relationship and it would be difficult for them to live under the same roof, especially as they lived in one bedroom. He was concerned that the child would be exposed to their disagreements. He told Ms Ivan that the apartment lease was in the grandmother's name so he could not ask her to live elsewhere and he had nowhere else to go.
[41] The grandmother returned to Canada later in January and moved back into the apartment with the grandfather and the child. The grandmother reported to a society worker that she returned as she missed the child and wanted to take care of her and adopt her.
[42] In meetings in January and February with the grandmother she did not report any concerns to Ms Ivan or any other society worker about the care the grandfather was providing to the child. The grandmother was in support of the plan that the grandfather continue to care for the child. However, the society recommended that the grandfather find his own accommodations due to the conflict between them.
[43] According to the grandmother, on February 26, 2020 the mother told her about the sexual abuse by the grandfather and others when she was in the Philippines. The grandmother confronted the grandfather and he denied it.
[44] According to Ms Ivan, on March 3, the society first became aware that the mother had alleged that the grandfather had sexually abused her. The director of the child's daycare called Ms Ivan and advised that the grandmother told her that the grandfather had been arrested. The grandmother also told her that the grandfather had sexually abused the mother and she was not sure if he was also trying to sexually abuse the child.
[45] The society followed up with the grandmother who reported that the mother told her that the abuse involved the grandfather, his brother-in-law and another uncle. The mother reported it to her school and she told the mother to go to the police but she did not go. The abuse started when the mother was 13 to 15 years and involved the grandfather massaging the mother's breasts.
[46] In another interview, the grandmother reported that she called the police as the grandfather threatened to kill her and assaulted her. The argument started because she wanted him to pick up the child from daycare. She confronted him about sexually molesting the mother. He became enraged, uttered the death threat, threw a pillow at her and slapped or hit her in both ears. She also stated that this was not an isolated incident.
[47] The grandfather denied the sexual abuse allegations. He stated that he felt provoked by the grandmother and made a mistake grabbing her. He stated that he heard the allegation for the first time when the grandmother returned from the United States. The grandmother threatened him with deportation and jail.
[48] As a result of the criminal charges as of March 4 the grandfather was no longer in the home and the child was left with the grandmother.
[49] It is the grandmother's position that she was the child's primary caregiver after she returned from the United States in January 2020. There is little evidence with respect to the roles of each grandparent from January until the grandfather's arrest in March. The daycare confirmed that the grandfather was primarily responsible for the pick ups and drop offs at the daycare. But as they were all living together I draw the common sense inference that both grandparents cared for the child. I find that in the circumstances of this case, nothing turns on this issue.
[50] The child was removed from the care of the grandmother on March 13th.
[51] On March 17[3] the mother met with Ms Ivan, the mother stated that she told the grandmother in 2013 about being abused but she did not tell her the details. The grandmother did not believe her.
[52] The mother further stated that she was presently unable to care for the child due to her mental health issues. She was dealing with the break-up of her relationship with the father of her child who still resided in the Philippines, being abandoned by her mother at a young age and being sexually assaulted. The mother's family doctor had referred to a psychiatrist.
[53] The society issued an Amended Protection Application seeking an order that the child be placed in the care of the society for 6 months. The temporary motion was heard on March 18 and a temporary without prejudice order was made that day placing the child in society care with access to the mother and the grandparents in the discretion of the society.
Applicable Legal Principles
[54] The society's motion is brought pursuant to section 94(9) of the Child, Youth and Family Services Act (CYFSA) that states as follows:
Power to Vary — the court may at any time vary or terminate an order made under subsection (2).
[55] In this case, there was a temporary without prejudice order made on July 18, 2019 placing the child with the grandfather and the society is now seeking to vary that order.
[56] Neither counsel for the respondent mother or the grandmother raised the issue that this was a without prejudice order.
[57] The child had been in the care of the grandfather and the mother since August 2018 and in the sole care of the grandfather since May 2019.
[58] Neither the mother or grandfather requested a temporary care and custody motion.
[59] The grandmother is not a party to these proceedings. A Notice of Motion was filed requesting that she be added as a party. The endorsement of April 2 indicates that the society and the mother agreed to her being added as a party but the motion was adjourned to April 24 as there was on information as to whether the grandfather agreed. On April 24, counsel for the grandmother advised that the issue of the grandmother being added as a party had been dealt with by the court. But having now reviewed the endorsement, it is clear that this issue is still outstanding and no order has been made adding the grandmother as a party.
[60] In this case, I find that the temporary without prejudice order placing the child with the grandfather was not contested and in fact was supported by the mother and the grandmother.
[61] In view of the length of time the child had been in the care of the grandfather before the formal court order of July 18, 2019 and since that time, I find that the order should be considered as a with prejudice temporary order.[4]
[62] There is a general consensus in the case law[5] that the moving party, seeking a variation of a placement order during the adjournment of a Protection Application, has the onus of first establishing a material change in circumstances since the making of the last court order.
[63] Once a material change in circumstances is established, a contextual analysis should be conducted by the court to determine if the placement order should be changed.
[64] The court should consider the changed circumstances, the objectives set out in section 1 of the CYFSA, the tiered considerations for temporary custody orders set out in section 94(2) of the CYFSA, and the best interests factors set out in section 74(3) of the CYFSA.
[65] In this case, the society has clearly met the onus of proving that there has been a material change in circumstances as the grandfather is no longer able to care for the child. Further, there are allegations made against him of sexually abusing the mother and allegations that he assaulted and threatened the grandmother with death. The grandmother also alleges there were other incidents of domestic violence.
[66] None of these allegations were known to the society when it approved the plan that the child be placed in his care.
[67] The only plans before the court are that the child be placed in the care of the grandmother or be placed in the care of the society.
Discussion
[68] I find that the actions or inaction of the grandmother have placed this child at risk of emotional harm.
[69] The grandmother has no insight into how the decisions she has made have impacted on her own daughter and now on her grandchild.
[70] The grandmother left her own young infant with the grandfather and then had little contact with her as she was growing up.
[71] The court was asked to take judicial notice that this is a cultural practice and quite a common occurrence in many underdeveloped countries.
[72] However, I am not prepared to take such judicial notice. I have assessed the best interests of this particular child based on the evidence presented on this motion.
[73] In this case, the mother has stated that she is dealing with and has been impacted by being abandoned by her mother at a young age and also with discovering from a third party that the man she considered her father is not her biological father.
[74] This child is already feeling the impact of being abandoned by her mother. Since May 2019 and except for a recent visit, the mother only saw the child once at the daycare in June. The daycare director reported to the society that the child was happy to see the mother but was very disturbed after she left, crying and screaming for about an hour and it was hard to settle her down.
[75] In January 2020, during a home visit with the grandparents and the child, the worker observed that the grandmother kept asking the child if she loved her mother and showed her pictures of the mother. The grandmother got upset when the child would not respond and later after being asked again if she loved her mother, the child spat at the photo. The worker had to explain to the grandmother that the child had the right to be upset.
[76] In March 2020, the grandmother also permitted the mother to visit the child without the prior knowledge or consent of the society. The grandmother deposes that she was not aware the society required that any visits by the mother occur through the society.
[77] Given the court's concerns about the credibility of the grandmother, I find that the society did advise the grandmother of this directive and she nevertheless arranged the visit. This raises concerns about the grandmother being compliant with terms of supervision. Also, the grandmother did not seem to recognize or consider the possible emotional impact such a random visit could have on the child in view of the length of time the mother had not seen the child.
[78] I have no concerns that the grandmother can meet the instrumental needs of the child, that the child knows her and is affectionate with her.
[79] However, the grandmother also left this child when she was only a year old to move to the United States. There was no evidence presented as to the necessity of her doing so as she was working in Canada. Further, I find that she must have been aware that the mother needed support to help her parent.
[80] Even if the mother was beginning to parent the child on her own, she was young and inexperienced. The mother had started school full-time. The mother confirmed that the grandfather was working long hours at two jobs and was not home very often to assist her.
[81] The grandmother provides contradictory evidence of this issue stating that when she left the mother was doing well. But on another occasion reported that before she left for the United States, she was aware that the mother was struggling, leaving home for days and associating with bad friends. However, she never thought the mother would walk away from her child.
[82] Within less than a year, the mother could not cope and left the child with the grandfather.
[83] The mother deposed that she was the primary caregiver from August 2018 and May 2019 as the grandfather was working. She felt she had no choice but to leave the child with the grandfather as the grandmother was in the United States and the grandfather had previously taken good care of her when she was a child. The mother felt the child was safer with him than with her.
[84] Even when the grandmother became aware in April and May 2019, that the mother was having difficulties coping and that she had left the child with the grandfather, she did not return to help either her daughter or her grandchild.
[85] It is submitted that the grandmother was in contact with the child and the grandfather and was content that the child was being well cared for.
[86] Counsel for the grandmother asked the court rhetorically, if the court was expecting that a grandparent put their life on hold for a grandchild.
[87] However, in this case, the grandmother is requesting that the court entrust this young child to her care on a long-term basis and therefore her historical pattern of caring for her own child and her grandchild is relevant.
[88] There is no explanation why when hearing that the mother left the child with the grandfather that the grandmother did not return to the jurisdiction in the same way it is not clear why she left in the first place.
[89] There is disputed evidence of various plans the society alleges were proposed by the grandmother to send the child to the Philippines to live with her father and his family.
[90] The grandmother deposed that the society misunderstood her and it was such a vacation or a short-term plan.
[91] Although I agree that at the present time given the COVID-19 travel restrictions such a plan in any event is not feasible, I accept the society's evidence that the grandmother did propose such a plan. What is relevant is that this again indicates that the grandmother does not have any insight into the impact on the child of having various caregivers.
[92] I also find that the grandmother was not protective of her daughter or her granddaughter.
[93] The grandmother did not believe her daughter when she was told about the grandfather sexually abusing her in 2013. Despite being in Canada at the time, she did not take any steps to help her daughter. There is no evidence that she returned to the Philippines after this disclosure or asked her daughter for more details.
[94] Even after this disclosure, the grandmother still sponsored the grandfather to come to Canada. The grandmother deposes that her daughter did not mention the abuse again and it happened 5 years ago.
[95] But knowing about the disclosure and the fact that they would all be sleeping in one bedroom, the grandmother does not explain why she would not have asked her daughter about this.
[96] The grandmother did not mention this allegation to the society even after the grandfather became the sole caregiver of the child. The grandmother also did not mention that there were incidents of domestic violence between herself and the grandfather. If the society been aware of these allegations, they would have been investigated as part of its kin assessment.
[97] There is contradictory evidence by the grandmother about when she advised the society about the sexual abuse allegations.
[98] The grandmother alleges she told another worker when she returned from the United States that she had told Ms Ivan about the sexual assault, but Ms Ivan did not believe her.
[99] The grandmother further states that she advised the society about the sexual abuse allegations sometime in February contrary to the evidence of the society that it was not aware of the allegation until being advised by the director of the child's daycare. I do not accept the grandmother's evidence as it is conceded that there is no mention of such a disclosure in any of the society's case note.
[100] What is also not clear is what caused the grandmother to believe the mother about the sexual abuse allegations in February 2020 because she provided her with details of the assault when she did not ask her in 2013 or 2016 about any details.
[101] It is not clear why being aware since 2013 about this allegation that it was not until March 2020 that the grandmother began to be concerned that there was a risk that the grandfather was sexually abusing the child.
[102] It is certainly understandable that the mother was unable to talk about being sexually abused to the society worker but there is no explanation as to why the grandmother would not have mentioned this to the society.
[103] It is submitted by mother's counsel that the mother and the grandmother have not been advised about the society's expectations. I agree that that the society should do so. However, the society has just in the last several months been advised of information that has dramatically changed the plan for the child and will require further time to formulate a new plan of care that clearly outlines the expectations on the parties.
[104] Counsel for the society advised the court that the grandfather is currently having virtual access twice a week. The society is prepared to permit virtual contact to the grandmother three times a week and to the mother once a week but if she is consistent then contact would also increase to three times a week.
[105] I would strongly urge the mother to begin exercising consistent access to her daughter, even if it is painful for her to do so as she knows for her own experience the emotional impact she felt and still feels from being abandoned by her own mother.
Order
[106] Upon the resumption of normal court operations, all of the documents submitted on this motion are to be filed in the physical court record.
[107] There will be an order as follows:
1. Pursuant to subsection 94(9) of the Child, Youth and Family Services Act, the order of July 18, 2019 is varied and the child M. born ….. shall be placed in the temporary care and custody of the Catholic Children's Aid Society.
2. Access to the child by the mother, maternal grandfather and maternal grandfather shall be in the discretion of the society to include virtual contact via social media and/or telephone including Skype, WhatsApp, Zoom and other facetime messenger or other services that allow video/audio conferencing.
3. Due to the ongoing COVID-19 pandemic, face to face visits will recommence when deemed safe by the society in accordance with the directives of the government and public health organizations. The society shall review access on an ongoing basis and expand access if deemed safe in consideration of the COVID-19 pandemic.
Released: April 30, 2020
Signed: Justice Roselyn Zisman
Footnotes
[1] The maternal grandmother and grandfather are referred to as the grandmother, grandfather and collectively as the grandparents.
[2] There is a dispute as to whether he was 16 or 17 years old but his exact age is not relevant.
[3] Counsel for the mother and the grandmother submitted that it was significant that although Ms Ivan's affidavit was sworn on March 17, this meeting was not referred to in the affidavit. However, the issue of the sexual abuse allegation against the grandfather is clearly outlined in the affidavit.
[4] See Children's Aid Society v. N.(K.), 2008 ONCJ 340; Catholic Children's Aid Society of Toronto v. W.I., 2014 ONCJ 62; Catholic Children's Aid Society of Toronto v. F.Y.I., 2016 ONCJ 463.
[5] See Catholic Children's Aid Society of Toronto v. R.M., 2017 ONCJ 784, for a thorough review of the caselaw.