WARNING
The court hearing this matter directs that the following notice should 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: May 22, 2020
Court File No.: C10469/18
Parties
Between:
Children's Aid Society of Toronto Applicant,
— AND —
J.E. Respondent (mother)
— AND —
S.A. Respondent (Father)
Before: Justice Melanie Sager
Motion Heard on: May 15, 2020
Decision Released on: May 22, 2020
Counsel
Chithika Withanage — counsel for the applicant society
Herbert Stover — counsel for the respondent (mother)
Deborah L. Stewart — counsel for the respondent (father)
Decision
SAGER, J.:
Introduction
[1] The motions heard this day are brought within a Status Review Application. The Children's Aid Society of Toronto (the society) requests a temporary order placing the child, S.A-E., who is almost two and a half years old, in the care and custody of the society. The mother, J.E., asks for an order placing the child in her care subject to the society's supervision. In the alternative, the mother asks for an order for overnight access to S.A-E. every weekend. The father seeks an order placing the child in his care or in his and his sister's joint care subject to the society's supervision. In the alternative, the father requests that the child be placed in the care of custody of his sister alone. Finally, if the child is not placed with the father and/or his sister, the father asks for access to S.A-E. every weekend from Friday at 4 p.m. to Sunday at 7:00 p.m.
Background of the Litigation
[2] The Children's Aid Society of the Regional Municipality of Waterloo commenced a Protection Application on February 28, 2018, seeking a finding that the child was in need of protection as a result of the mother's transiency and living a high risk life that may have involved drug use while refusing to cooperate with the society workers who were trying to help her.
[3] After being in the society's care for a period of 6 months, a friend of the mother's, T.B., was approved to provide temporary care of S.A-E. The child was placed in the mother's friend's care on August 29, 2018 but unfortunately, by October 2018, T.B. was no longer able to care for S.A-E. due to her own mental health issues. On October 22, 2018, an order was made placing S.A-E. in the temporary care of the society and she returned to foster care.
[4] The parents then supported placement of the child with V.R., the mother's long time family friend[1]. S.A-E. began an extended visit in V.R.'s care on July 17, 2019 and on August 27, 2019, the court made a temporary order placing the child in V.R.'s care subject to the society's supervision.
[5] The father was noted in default on July 12, 2018 by Justice Debra Paulseth as he had not served and filed an Answer and Plan of Care. On that date Justice Paulseth made an order finding the child in need of protection based on 74(2)(b) and (g) of the Act.
[6] On December 3, 2019, Justice Stanley Sherr made a dispositional order placing the child in the care and custody of V.R., subject to the society's supervision for a period of four months with terms and conditions. With respect to the parents' access to S.A-E., V.R. is not to allow either parent to have any contact with the child unless previously approved by the society. In addition, the mother was granted access to the child as agreed upon between her, the society and V.R. while the father's access is at the discretion of the society.
[7] On January 20, 2020 the parties had a second child. A child protection proceeding was commended in Waterloo, Ontario where the child was born and later transferred to Durham Children's Aid Society after the mother and baby moved to that jurisdiction and where the file remains open.
[8] On March 17, 2020, the society issued a Status Review Application in which they requested an order placing the child in V.R.'s care and custody subject to the society's supervision for a period of three months. The society requested an order that access by both parents to S.A-E. shall be at the society's discretion.
[9] On March 26, 2020, the matter came before the court and the father requested a date to argue a care and custody motion claiming the child's placement with V.R. was no longer in her best interests. A date was set for the motion on April 14, 2020 and later adjourned at the parties' request to May 15, 2020.
[10] On May 8, 2020, S.A-E. was brought to a place of safety after V.R. advised the society that she was no longer able to care for her due to the stress placed on her by the conduct of the parents. V.R. reported to the society that she feared for both hers and the child's safety.
[11] On May 13, 2020, the society issued an Amended Status Review Application in which it requested an order placing S.A-E. in extended society care with no order for access by either parent. An urgent motion proceeded on May 13, 2020, when the court made a temporary without prejudice order placing S.A-E. in the society's care.
The Applicable Law
[12] The parties all agree that subsection 113(8) of the Child, Youth and Family Services Act (CYFSA) governs the relief requested by all parties on the motions. Subsection 113(8) provides that the interim care and custody of a child shall remain with the person or society having charge of the child until the application is disposed of, unless the court is satisfied that the child's best interests require a change in the child's care and custody.
[13] Section 114 of the Act provides:
Where an application for review of a child's status is made under section 113, the court may, in the child's best interests,
(a) vary or terminate the original order made under subsection 101 (1), including a term or condition or a provision for access that is part of the order;
(b) order that the original order terminate on a specified future date;
(c) make a further order or orders under section 101; or,
(d) make an order under section 102.
[14] Subsection 74(3) of the Act directs the court to specifically consider the following as part of the best interests analysis:
(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall,
(a) consider the child's views and wishes, given due weight in accordance with the child's age and maturity, unless they cannot be ascertained;
(b) in the case of a First Nations, Inuk or Métis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Métis cultures, heritages and traditions, of preserving the child's cultural identity and connection to community, in addition to the considerations under clauses (a) and (c); and
(c) consider any other circumstance of the case that the person considers relevant, including,
(i) the child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs,
(ii) the child's physical, mental and emotional level of development,
(iii) the child's race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression,
(iv) the child's cultural and linguistic heritage,
(v) the importance for the child's development of a positive relationship with a parent and a secure place as a member of a family,
(vi) the child's relationships and emotional ties to a parent, sibling, relative, other member of the child's extended family or member of the child's community,
(vii) the importance of continuity in the child's care and the possible effect on the child of disruption of that continuity,
(viii) the merits of a plan for the child's care proposed by a society, including proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent,
(ix) the effects on the child of delay in the disposition of the case,
(x) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent, and
(xi) the degree of risk, if any, that justified the finding that the child is in need of protection.
[15] The parties also agreed that as V.R. is no longer able or willing to care for S.A-E., there has been a material change related to her best interests requiring a change in her care and custody. All three parties agreed that the court must determine what new temporary care and custody order should be made based on what is in the child's best interests. It was agreed that risk of harm is not the test on this motion. See: Children's Aid Society of Brant v. L. (J.), 2008 ONCJ 527 and Children's Aid Society of Toronto v. S.G., 2011 ONCJ 746
[16] As a temporary change in S.A-E.'s care and custody is required, the court must determine which temporary plan is in S.A-E.'s best interests until a final disposition of the Status Review Application.
[17] In determining what order is appropriate, the court should consider the paramount purpose of the Act, being the best interests, protection and well-being of children and the secondary purposes of maintaining the integrity of the family unit, assisting families in caring for their children and recognizing the least disruptive action consistent with the best interests of the children (subsections 1 (1) and (2) of the Act). In assessing best interests, the court should consider the relevant factors set out in subsection 74 (3) of the Act. JFCS v. H.B.S., [2012], O.J. No. 5055 (OCJ).
The Evidence
i. The Mother's Plan
[18] The mother's plan is for S.A-E. to live with her at her sister's home in Oshawa, Ontario along with the parties' three month old baby. Her sister has a four bedroom home and four children. The mother will be S.A-E.'s primary caregiver but will have the assistance of her sister as needed.
[19] The mother's sister provided sworn evidence confirming her support for her sister's plan. She says in addition to providing the mother and S.A-E. a home, she can provide the mother with child care, emotional support and transportation.
[20] The society does not support S.A-E. being placed in the mother's care as the mother has effectively been absent from her life since the commencement of the Protection Application on February 23, 2018, when the child was two months old.
[21] The mother says after S.A-E. was removed from her care in February 2018 she had visits twice per week at the society's offices. She says she "maintained access" which went well. This evidence is uncontested.
[22] The next period of S.A-E.'s life occurred in the care of the mother's friend from August 2018 to October 2018. During this period the society's evidence is that the mother exercised access to S.A-E., only twice out of 10 scheduled visits. These visits were all supervised by the society. The mother's evidence is that during this period she had access "both at the Society's offices and at my mother's home". The society's evidence is that they did not approve any visits by the mother other than that supervised by the society.
[23] The temporary supervision order placing the child with the mother's friend provides that the parents' access is at the society's discretion. A term of the supervision order is that the mother shall not have any contact or attend at the home of her friend without the prior approval of the society. Therefore, if the mother had access to the child at her friend's home without the society's approval, that was a violation of the terms of the temporary supervision order.
[24] After S.A-E. was brought to a place of safety again in October 2018 until being placed with V.R. in July 2019, the society's evidence is that the mother visited S.A-E. a total of 23 times out of a possible 48 scheduled visits. The mother deposes that during this time she only had two visits with S.A-E.
[25] For the period of July 2019 to date, the society's evidence is that the mother has not seen S.A-E. at all. Not only has the mother not had any access but she has not met with the society worker at all to discuss access, advising her that she needed to focus on her pregnancy.
[26] The mother claims that since S.A-E. was placed in V.R.'s care in July 2019, she has had access "at the Society's offices, at [V.R.'s] home, at my mother's home, and in the community with my mother and also with [V.R.]." The mother's evidence is that when S.A-E. was placed with V.R., she called the mother "a lot" for advice on how to care for S.A-E. She says she went over to V.R.'s home a lot to help her care for S.A-E.
[27] The mother did not keep a record of all of her visits with S.A-E. and did not recall when they occurred in V.R.'s home.
[28] The society's evidence on the motion includes an affidavit sworn by V.R. on May 7, 2020. V.R. has know the mother's family for 25 years. V.R. says that the mother has not had any access to S.A-E. in her home nor have they ever met for a visit in the community. With respect to the mother's evidence that she has visited with S.A-E. while she was in the care of the maternal grandmother, V.R. says that she has left S.A-E. with the maternal grandmother on three occasions and that she was never advised by the maternal grandmother that the mother was in her home or visited S.A-E. on any of the three occasions.
[29] The mother says she last saw S.A-E. at her mother's home in January 2020 when she attended for a birthday party. V.R. deposes that she and S.A-E. were not at that party.
[30] V.R.'s evidence is that in August 2019, the society, the mother and her all agreed that the mother would have video calls with S.A-E. every Friday at 7:00 p.m. V.R.'s evidence is that she reviewed her cell phone records and confirms that the mother only had three video calls with S.A-E. between August 2019 and February 14, 2020. V.R. provides the dates for each call. Furthermore, V.R. says she only had one telephone call with the mother on October 3, 2019 during the entire time S.A-E. has been in her care.
[31] V.R. denies ever seeking assistance or advice from the mother on how to care for S.A-E. explaining that she would not seek advice from the mother who has "never cared for any of her other five children".
[32] The mother disputes V.R.'s evidence but acknowledges she cannot provide any specifics in terms of dates and times of her contact with S.A-E. She says in response to V.R.'s evidence that she only left S.A-E. in the maternal grandmother's care on three occasions, "it seemed that I saw [S.A-E.] at my mother's home a lot more than as set out by [V.R.]."
[33] The mother does not address the issue that violated the terms of the supervision order if she had access to S.A-E. that was not approved by the society.
[34] With respect to telephone and video calls with S.A-E., the mother says "I did not keep a log of my telephone and video calls with [S.A-E.] when she was with [V.R.] and so cannot dispute the dates she has given, but I do dispute that the telephone calls and video calls were more frequent than as set out by [V.R.]."
[35] The mother's evidence regarding her access to S.A-E. is confusing. She admits not keeping records of when her visits occurred. Conversely, the society keeps records of all supervised visits that occur in their offices. In addition, the society's evidence that the mother has not had any access to S.A-E. since July 2019 is corroborated by V.R.
[36] The evidence of V.R. is also very specific as she provides dates of all contact with the mother as confirmed by her cell phone records. Conversely, the mother just provides a blanket denial of V.R.'s evidence.
[37] Where the evidence differs on the issue of the mother's access to S.A-E. since February 23, 2018, I accept the evidence of the society over that of the mother. While the mother's evidence is vague and unsubstantiated, the society's evidence is specific, based on note keeping and corroborated, in part, by V.R. In fact, the society's evidence is also corroborated in part by the mother who admits to having only two visits over a nine month period.
Conclusion Regarding the Mother's Plan
[38] As S.A-E. has not had any in person contact with her mother for the last 10 months, it is not in S.A-E.'s interest to be place in the temporary care and custody of the mother, with or without the assistance of her sister.
ii. The Father's Plan
[39] The father's plan is for S.A-E. to be placed in his care and custody subject to society supervision. The father's evidence can be summarized as follows:
(a) The father has three other children, the older two with another mother, aged 13 and three years; and, a three month old with S.A-E.'s mother. The father describes his role in these children's lives as a "co-parent". He has regular and frequent unsupervised contact with these children including four visits per week with the baby for five hours each visit. He says he is involved in every aspect of his children's lives and shares a close and loving relationship with his children. This evidence, he says, supports his position that he can care for S.A-E. full time.
(b) While the father was unable to see S.A-E. at all between April and December 2018 when he was in jail and from December 2018 until the fall of 2019 as his life was in "shambles" after being released from jail, he has shown a commitment to being in her life since October 31, 2019 when he began having supervised visits to S.A-E. at the society's offices.
(c) The father's supervised visits with S.A-E. between October 31, 2019 and March 13, 2020 went very well resulting in the society agreeing to plan for access in the community. In February 2020 the society sent the father a letter confirming that as his access has been positive, and he is agreeable to engaging in or continuing to engage in services, access to S.A-E. can progress to community visits.
(d) The father has engaged in many services that have prepared him to have care and custody of S.A-E. He completed 'Super Dads, Super Kids' at Ujima House and began the 'Caring Dads' program which was suspended after 5 sessions due to Covid-19. He has also commenced an anger management program which unfortunately was also suspended due to the pandemic. While in jail between April and December 2018, he completed several personal development workshops.
(e) In early March 2020, the society advised that the were putting the plan to proceed to community visits on hold due to several issues that had arisen due to allegations the father made regarding V.R.'s care of the child. Supervised visits continued once a week at the society's office.
(f) The father set out the details of his criminal record in his affidavit, which include two charges of sexual assault, one involving the mother in 2018 and another involving a minor in 2014. With respect to the minor, he pleaded guilty to sexual assault but denies assaulting her or knowing she was a minor. The charges involving the mother resulted in a guilty plea of voyeurism. The father claims that the charges were based on false claims by the mother and that he only pleaded guilty to voyeurism to get out of jail.
(g) The father lives with his sister (paternal aunt) and mother (paternal grandmother) and 18 year old niece who are all available to assist him with S.A-E.'s care. None of these members of his family have a criminal record or involvement with a Children's Aid Society due to child protection concerns.
(h) The father's sister and mother both swore affidavits supporting the father's plan to care for S.A-E. and confirming their availability to assist him. They both describe him as an excellent parent.
(i) Should the father not be sufficiently situated to care for S.A-E. on his own, his sister is willing to have joint care and custody of S.A-E. She is an excellent candidate who should be approved by the society as this very agency approved her to care for and ultimately obtain custody of her niece 12 years ago.
(j) As the father is available to care for S.A-E. in a home shared with his sister who is an approved caregiver by the society, there is no good reason for S.A-E. to remain in care when her paternal family are willing and able to care for her.
[40] The society's position is that it is not in S.A-E.'s best interests to be placed in the father's or his family's care making the society's plan the most suitable for S.A-E. and the only one before the court that is in her best interests. The society has several very serious concerns about the father and his ability to provide a safe and stable home for S.A-E. The concerns are summarized as follows:
a) To date, the father has only exercised access to S.A-E. supervised by the society. This evidence is not contested.
b) The paternal aunt has had only one visit with the child since the society became involved with the family. This evidence is not contested.
c) The paternal grandmother has had only five visits with the child since the society became involved with the family. This evidence is not contested.
d) The father has a very serious criminal history about which he seems to show little insight or accept any responsibility for.
e) The society requires additional information about the sexual assault charges against the father and the guilty pleas. The society requested information from the father about his criminal past in a letter dated January 7, 2020. When that information was not forthcoming, the society brought a motion on April 27, 2020 for the release of the father's criminal records which he did not oppose. All of the information pursuant to that order has not yet come to the attention of the society.
f) The father told the society that he is a registered sex offender. This evidence is not contested.
g) After pleading guilty to voyeurism involving the mother, the father was arrested on January 1, 2019, for breaching the terms of his probation. The society included as evidence a copy of the Crown Brief Synopsis which states that the police were called to the mother's home at 4:31 a.m. due to reports of a disturbance. Despite denying that anyone was in the home and that she was yelling at someone on the phone, the police found the father hiding in the basement. The father was charged with two counts of breach of probation and he advises he pled guilty to one count. This evidence is not contested.
h) The society is concerned that the father has not been honest and forthcoming with them. The father admits that the mother and their baby lived with him in his home for three weeks in March 2020 without having advised the society of this fact in direct contravention of the order of Justice Sherr dated December 3, 2019[2] and very possibly in contravention of the terms of his probation.[3]
i) The society has received contradictory information about whether the parents are living together and/or continue to be in a relationship including information from other child welfare agencies involved with the parents and their baby.
j) The father has been uncooperative, threatening, intimidating and argumentative with society staff, both in person and via email. This inappropriate conduct usually came as a result of the society's position on the father's access to S.A-E. and his upset over her remaining in V.R.'s care.
k) The father demonstrates anger issues and an inability to manage and control his emotions.
l) The father put his needs before those of the child when he engaged in a campaign to have V.R. removed as S.A-E.'s caregiver resulting in the child having to return to foster care.
m) As the father has not been honest with the society, there is a lack of trust without which a supervision order will have little meaning. The society considers the father to be ungovernable.
a) Analysis of the Father's Plan
[41] The court shares many of the society's concerns with the father's plan to care for S.A-E. on his own or with his sister. The court also has several other concerns about the father's evidence.
1. The Father's Parenting Time
[42] It is not disputed that to date, all of the father's visits have been supervised by the society. The father's weekly two hour in-person supervised visits with S.A-E. were suspended by the society in March 2020 due to the Covid-19 pandemic. He is currently having video contact with S.A-E. twice per week.
[43] It is not disputed that the father had six visits with S.A-E. between February and April 2018, before he was detained for eight months after being charged with sexually assaulting the mother; and, 15 visits between October 31, 2019 and March 13, 2020. The father was absent from S.A-E.'s life for 19 months between April 2018 and October 31, 2019. This amounts to 86% of S.A-E.'s life as of October 31, 2019 and 66% of her life as of the date of this motion.
[44] The father's evidence is that he did not see S.A-E. for 10 months after he was released from jail because his life was in "shambles" upon his release from jail. He deposes that "It was not until June 2019 that I was able to start dealing with this matter." The father retained counsel in the fall of 2019 and began pursuing access to S.A-E.
[45] This does not seem to be the entire explanation for the father's lack of contact for almost two years of S.A-E.'s life. The father included as exhibit "B" to his affidavit a letter from the Family Service Worker dated January 7, 2020. The worker notes in the letter that "Around December 2018, you indicated that you did not wish to have any contact with your daughter, [S.A-E.], however, around September 2019, you expressed the desire to pursue access. This evidence was not contested by the father.
[46] The Family Service Worker's evidence is that in January 2020, the father requested a DNA test for S.A-E. The test was completed in and around February 20, 2020 confirming paternity.
[47] Since October 31, 2019, the father has exercised weekly two hour visits with S.A-E. supervised by the society. He has had very limited contact with her in a controlled environment. He has not had expansive caregiving responsibilities.
[48] The father is not taking responsibility at all for his actions and choices that led to his being absent from his daughter's life for a very long time. He also does not appreciate the consequences of his actions and choices on his daughter and specifically her best interests.
2. Significance of Father's Criminal Record
[49] The court is extremely concerned by the father's indifferent attitude regarding his criminal record. He denies having committed the crimes he pleaded guilty to. The father pleaded guilty to sexual assault in 2014. He claims that he picked up a prostitute and did not know she was a minor. He denies assaulting her. He denies any wrong doing.
[50] In 2018 the father was charged with sexually assaulting the mother during which it was alleged he penetrated her with a beer bottle. On April 3, 2018 the mother told the Family Service Worker that she believes she was drugged and sexually assaulted by the father. She said that she is in possession of graphic videos of her being assaulted which she said were sent to her by the father. Apparently, the perpetrator's face cannot be seen on the video.
[51] After the father was charged with sexual assault of the mother, she says that when she learned that it was not the father who assaulted her, she advised the Crown Attorney. She does not say how she knows it was not the father who assaulted her, if he was present when she was assaulted or who recorded the assault. She says "I did not know [the father] very well at the time and made rash statements about his character. I have gotten to know him now, and see him as a good and caring father."
[52] The father denies assaulting the mother or sending her video of the assault. He claims a "friend" of the mother sent them to her. He explains that after spending 8 months in jail "I pled guilty to voyeurism in order to get out of custody, as my trial was another year away."
[53] The criminal offence of voyeurism is defied by subsection 162 (1) of the Criminal Code of Canada as follows:
162(1) Every one commits an offence who, surreptitiously, observes — including by mechanical or electronic means — or makes a visual recording of a person who is in circumstances that give rise to a reasonable expectation of privacy, if
(a) the person is in a place in which a person can reasonably be expected to be nude, to expose his or her genital organs or anal region or her breasts, or to be engaged in explicit sexual activity;
(b) the person is nude, is exposing his or her genital organs or anal region or her breasts, or is engaged in explicit sexual activity, and the observation or recording is done for the purpose of observing or recording a person in such a state or engaged in such an activity; or
(c) the observation or recording is done for a sexual purpose.
[54] The father deposes that he pled guilty to "sexual voyeurism" and was sentenced to time served.
[55] The father submits that it is unreasonable for the society to use his criminal record to delay placing S.A-E. in his care or at least expanding access. He says that it is unacceptable for the society to make an issue of his criminal record now. He complains that the society only requested a court order for a copy of his criminal record in March 2020 and argues that their delay in doing their due diligence should not negatively impact him and his daughter. The father forgets that on January 7, 2020, the society made a written request from him for "information from your court proceedings in relation to your various sexual assault charges/trials/ convictions", which he did not produce.
[56] The father's criminal record in this case is extremely relevant when assessing whether the father can provide a safe and stable home for S.A-E. The information he has provided about his criminal record is inadequate. In assessing the risk to S.A-E. if she were placed in the father's care, this court requires information about what exactly the father pleaded guilty to in 2014 and 2018. This court is concerned that the father may have been present and possibly recorded the mother being sexually assaulted while incapacitated. Under subsection 162(1) of the Criminal Code of Canada, it is a crime of voyeurism to surreptitiously observe someone or make a visual recording of them when they have a reasonable expectation of privacy.
[57] Nowhere in his evidence does the father take any responsibility for his actions. He minimizes his behaviour and the seriousness of the criminal charges that resulted in his being in jail for lengthy periods of time. According to his evidence, between 2014 and 2018, a four year period, he was in jail for 21 months, or just over 40% of the time.
[58] Of further concern for the court is that the Crown Brief Synopsis, detailing what occurred on January 1, 2019 when the father breached the terms of his probation by being at the mother's home, says that the father has "been involved in previous domestic incidents with multiple partners". Despite this statement being highlighted in the Family Service Worker's affidavit, the father did not contest this evidence. This is further evidence of the importance of receiving and reviewing the father's entire criminal record.
[59] In assessing risk, the court should consider the criminal history of parents, including evidence of violent conduct and the potential exposure of the children to violence. Children's Aid Society of Algoma v. B.W. and R.M., 2002 CarswellOnt 5500 (OCJ). Before the court would consider granting the father unsupervised access it needs to review his criminal record.
3. Can the Father Reasonably be Trusted to Comply with the Terms of a Supervision Order?
[60] The father asks for an order placing S.A-E. in his temporary care and custody subject to the society's supervision. The society says the father is dishonest, ungovernable and cannot be trusted to comply with the terms of a supervision order.
[61] In support of their position, the society relies on the father's conviction of breach of his probation in 2019. The society also points to the father's failure to advise the society that the mother and their new baby lived with him and his family for 3 weeks in March 2020, even when asked directly by the Family Service Worker if the parties were living together.[4]
[62] The father may also have allowed the mother to live with him in contravention of the terms of his probation which, he advised, expires in May 2020. The father acknowledges in his affidavit that after he pled guilty to voyeurism, as a term of his probation he was prohibited from having contact with the mother. He further admits that he breached this term of his probation in January 2019, and "My probation will be completed in May 2020". If this is accurate, he was in violation of his probation when the mother lived with him for three weeks in March 2020.
[63] The society's evidence is that it does not have a copy of the terms of the father's probation, which is in contravention of paragraph 1(n) of Justice Sherr's order. He also did not include a copy of his probation with his motion materials for the court's information. He ought to have done so.
[64] Considering the parents had another baby on January 20, 2020, who would have been conceived in approximately April 2019, it appears the father may have violated the terms of his probation which prohibited him from having contact with the mother on another occasion.
[65] The father's three breaches of his probation are also violations of Justice Sherr's order which provides that the father "shall comply with the criminal court release conditions and/or probation conditions regarding any contact with [the mother]."
[66] There is also conflicting evidence about whether he and the mother continue to live together and/or are involved in romantic relationship that the father has not helped to resolve. This too needs to be clarified for the court and important information may be found in the child protection file involving the parents' baby with Durham Children's Aid Society.
[67] The society argues that the father has behaved in a manner that demonstrates he is ungovernable such that a supervision order would be insufficient to protect S.A-E. The society describes the father as uncooperative, threatening, intimidating and characterizes some of his interaction with the society as chaotic due to him screaming and arguing with workers.
[68] Prior to the suspension of in person access, the father's supervised access was going well enough to plan for community access. On February 28, 2020, the father met with the Family Service Worker and brought his sister, mother and niece to the meeting as potential supports for community access with S.A-E. At this meeting the father was advised that his access was a process that involved multiple steps including the worker attending his home to observe the access as well as the family dynamics. The society's evidence is that the father took no issue with the society's expectations.
[69] The schedules kept by the father's family members made it difficult for the society to come up with a plan for supervised access in the home. The society also had concerns about the father's behaviour during the February 28, 2020 meeting which it describes as "unruly" as the father "kept shouting and being aggressive throughout the meeting, and his sister had to tell him several times to stop because nobody was able to speak or have a conversation given his behaviour." The father admits to having become upset with society staff. He did not deny that his sister repeatedly asked him to stop yelling at the meeting at the society's offices on February 28, 2020.
[70] The father acknowledges at times becoming upset with the society due to the manner in which they are handling this file. For example, the father expresses upset over the society focusing on his criminal past and waiting until only recently to request his criminal record when they could have done so quite some time ago.
[71] The father expresses frustration with the society as to why he cannot care for his daughter when he "co-parents" his three other children. He also feels that S.A-E. should be with capable family such as himself or his sister or mother rather than with any other non family member.
[72] The father admitted to sending various emails to the society and leaving voicemail messages in which he was upset at their handling of his case.
[73] The father also acknowledges becoming very upset with V.R. who posted very sensitive information and even information about this case on social media. He often directed his anger over V.R.'s care of S.A-E. to society workers and behaved inappropriately towards them as demonstrated by some of the emails filed by the society as exhibits to affidavits.
4. The Father's Role in Destabilizing S.A-E.'s Placement with V.R.
[74] Both mother and father argued that S.A-E.'s best interests were no longer served in the care of V.R.
[75] The mother's evidence is that S.A-E. cannot reside permanently with V.R. as her father, who lives with her and is now 75 years old, "made what I perceived to be sexual advances after inviting me to come to his bedroom" when she was 12 years old. She explains that she agreed to S.A-E. being placed in V.R.'s care as she was sufficiently protective of her when the incident occurred with V.R.'s father. She knew V.R. would protect S.A-E. She only became concerned after considering the possibility of S.A-E. living under the same roof as V.R.'s father at the age of 12 and says, "This can't be."
[76] The father has numerous concerns about V.R. He deposes that S.A-E. must be removed from V.R.'s care because "I have been told by the respondent/mother that she was sexually abused by [V.R.'s] father when the mother was a pre-teen and adolescent. This man lives in [V.R.'s] home and at times cares for my daughter when [V.R.] is out of the home."
[77] The Family Services Worker says that on February 25, 2020, the father alleged that both V.R. and her father sexually assaulted the mother when she was younger. He told the worker that the mother had told him what occurred a long time ago but that he did not advise the society earlier as he did not want to disturb S.A-E.'s placement. The father did not dispute that he made these claims to the worker.
[78] The mother has never alleged that V.R. sexually assaulted her or mistreated her in any way.
[79] The court has difficulty believing the father's allegations regarding V.R. and her father given the following facts:
a. The father claims that the mother told him that V.R. and her father sexually assaulted her when she was a child and that even though he has known this for quite some time, he failed to raise any concerns with the society until now.
b. The father wants the court to act on his concerns for his daughter's safety in V.R.'s care despite the fact that the information regarding V.R.'s and her father's assault of the mother comes from the mother who the father claims falsely accused him of sexual assault.
c. The society investigated the father's allegations against V.R. and her father and found no evidence to corroborate his concerns.
d. The mother does not allege any wrong doing by V.R.
e. The mother's evidence in relation to V.R.'s father's behaviour towards her when she was 12 years old is very different from the father's evidence.
[80] The veracity of the father's concerns is severely impacted by his frail credibility. It is self serving for him to believe some of what the mother says but claim that other statements or allegations she has made are false. For example, the father chooses to believe the mother's allegations in relation to V.R.'s father but says the mother lied when she made allegations of sexual assault against him in April 2018 explaining, "I believe that it was in fact because she did not want me to plan for our daughter." He does not explain why the mother should be believed some of the time but not all of the time. He is also asking the court to accept the truth of the mother's allegations against V.R.'s father knowing that she is capable of falsely accusing him of sexual assault.
[81] The father became obsessed with destabilizing S.A-E.'s placement. When the society did not confirm his sexual assault allegations, he made further allegations of abuse by V.R. against S.A-E. because of a mark on her cheek. Then he claimed in an email dated May 8, 2020, that V.R. physically assaulted her father in front of S.A-E. In that same email he alleges that V.R. smokes weed in the house and lied about it in her affidavit; she is addicted to drugs and alcohol; and, "she is mad in her head and she stabbed people and beat up alot [sic] of people before…so my daughter has to see all of this?? See why i get angry thats [sic] my daughter going thru all of this and i cant [sic] even protect my little girl...thats [sic] why my visit is off [mother's] mom said".
[82] Equally concerning for the court is that the father claims to have obtained the information in his email to the society dated May 8, 2020 by listening in on a telephone conversation between the mother, V.R. the maternal grandmother and the maternal aunt. The father advised that he was on mute just listening to the conversation[5].
[83] The father argues that it would have been wrong for him not to share this information with the society, especially the mark on S.A-E.'s face, which he describes as a possible cigarette burn or the evidence of abuse. The father's counsel argues that the father saw the "significant mark" during a video call and it would have been "inappropriate" for the father not to bring the mark to the attention of the society.
[84] While it might be "inappropriate" for the father not to have reported the mark to the society, it is not the making of the report that is an issue, but rather it is the manner in which he made the report, the fact that it comes after several other allegations against V.R. and, that he jumped to conclusions that support his desire to have S.A-E. removed from V.R.'s care.
[85] After a video call with the child, the father wrote an email to the worker saying that he did not "like that dirty mark on my daughters face please deal with it i dont [ sic ] know what [V.R.] did to her or who was around her to get that mark on her face…is she being beat or abused…" The Family Service Worker responded by advising that she will follow up on his concerns and asked how his visit went. He responded, "ok other then [ sic ] that burn looking mark like a ciggerette [sic] burn…is she getting abused [in] that home?? I'm pissed off to see my daughter like that…she needs to come out of [V.R.'s] care".
[86] After the Family Service Worker spoke to V.R. and reported to the father that the child had scratched herself, the father refused to accept the explanation and said that V.R. cannot be trusted and that the child had to be removed from her care. The father repeated that he felt it looked like a cigarette burn. The father's reaction to the society was inappropriate. He jumped to conclusions that supported his campaign to have the child removed from V.R.'s care.
[87] It is not a coincidence that on May 8, 2020, V.R. contacted the society to say that she could no longer care for S.A-E. as she was concerned for her safety and the safety of the child.
[88] The father says he is not to blame for the breakdown of S.A-E.'s placement with V.R. Rather, he says V.R. is responsible as she put extremely sensitive information about this proceeding on social media as well as making extremely inappropriate comments about the mother and father including that the father is a predator.
[89] V.R.'s actions were wrong and upset the father very much, rightfully so. But it is not her actions that resulted in S.A-E.'s residence and caregivers having to be changed yet again. It is the father's reaction to what V.R. did in addition to the repeated serious allegations made by the mother and father against V.R. and her father. The allegations made by the father against V.R. and her care of S.A-E. escalated in terms of severity. That no doubt was upsetting and frightening for V.R. By continuing to care for S.A-E., V.R. put herself and her father at risk of serious criminal charges. The father achieved his goal of having the child removed from V.R.'s care as the barrage of complaints and continued attack of her character were just too much to shoulder.
[90] The court is particularly mindful of the fact that when S.A-E. went to live with V.R. in July 2019, she was removed from a foster mother's care with whom she had lived for 9 months and to whom she was bonded[6]. Now she has been removed from V.R.'s care where she lived for 10 months and to whom, the evidence demonstrates, she is also bonded. While being almost solely responsible for the unnecessary and monumental upheaval in her life, the father has absolutely no understanding or appreciation at all for the distress his daughter is at risk of experiencing as a result of his actions.
[91] What the father (and mother) did to disrupt their young daughter's life is shocking. S.A-E. is not even 3 years old and she has had at least 4 different homes and primary caregivers. She was doing very well in V.R.'s care where her needs were being met. The parents' actions and in particular those of the father, make it very clear that they are unable to recognize their daughter's needs let alone put her needs and interests before their own.
Conclusion Regarding the Father's Plan to Care for S.A-E.
(a) Is it in S.A-E.'s Best Interest to be Placed in the Care and Custody of the Father?
[92] As a result of being absent from her life for a very long time and only recently questioning paternity, the father has only had supervised access to S.A-E. Before the court could even contemplate placing S.A-E. in the father's care even on a temporary basis, he would have to have demonstrated lengthy periods of successful unsupervised day/community and overnight access. These are important steps towards placing a child with an absentee parent that cannot be bypassed. The court would be placing S.A-E. at risk were it to place her in the father's temporary care and custody without significant successful increases in his access.
[93] Before this court would consider granting the father care and custody of S.A-E., it must have information about the sexual crimes committed by the father against the mother and the young woman in 2014 and a copy of his most recent probation order.
[94] In order for a supervision order to be effective there must be a foundation of cooperation and trust between the society and the caregiver. The court finds that the father has not been honest and forthcoming with the society. The father has breached the terms of his current probation order at least three times in the last year, including twice in 2020. The society's lack of trust in the father is support by the evidence and therefore justified. The court agrees that the father's dishonesty and behaviour makes it unlikely that a supervision order would be effective.
[95] The father will have to take steps to create trust and a foundation for moving forward with the society. That foundation must be built on mutual respect and cooperation. Until that occurs, the society and the court will find itself constantly questioning the veracity of the father's statements and evidence.
[96] Of significant concern for the court is the father's role in destabilizing S.A-E.'s placement with V.R., where she had lived for almost a year and was doing very well. Equally alarming is the complete lack of insight into his judgment and his willingness to put his needs ahead of the needs of his child regardless of how that may negatively impact her.
[97] Based on all of the evidence, the court is not satisfied that the father can provide a safe and stable home for S.A-E. or that he is able to meet all of her needs on a day-to-day basis. Therefore, an order granting the father temporary care and custody of S.A-E. is contrary to her best interests.
(b) Is it in S.A-E.'s Best Interest to be Placed in the Joint Care and Custody of the Father and Her Paternal Aunt?
[98] Before making an order placing a child in the care of a Children's Aid Society, the court is obliged to consider whether it is in the child's best interest to place her with a relative or member of the child's extended family or community. As an alternative to placing the child in his care, the father seeks an order placing S.A-E. in the joint care and custody of the father and his sister or in his sister's care alone.
[99] For all of the reasons set out above, it is not in S.A-E.'s best interest to be placed in the joint care and custody of her father and paternal aunt.
(c) Is it in S.A-E.'s Best Interest to be Placed in the Care and Custody of Her Paternal Aunt?
[100] The father's sister is 51 years old and has two adult children and custody of her 19 year old niece. The father's sister is employed full time and works outside of the home everyday, returning by 6:00 p.m. She does not work on weekends.
[101] The father lives with his sister and their mother as well as his 19 year old niece in a four bedroom home in Oshawa.
[102] The father's sister deposes that she does not have a criminal record and that she has a long standing and positive relationship with the society as a result of her older sister's mental health issues and involvement with the society.
[103] The father's sister says that she would work cooperatively with the society and follow all court orders.
[104] The father's sister's evidence is that her brother is a "great father, an appropriate and wonderful caregiver to children such as my grandchildren." She fully supports her brother having care of S.A-E.
[105] The paternal aunt's plan would be for S.A-E. to be cared for during the day by the father, paternal grandmother and her niece, "or daycare or both." She is available in the evenings and weekends.
[106] It is not disputed that the paternal aunt had no contact with S.A-E. between February 23, 2018 and February 2020 and has only had one visit with the child since that time.
[107] It is not disputed that the paternal grandmother had no contact with S.A-E. between February 23, 2018 and December 2019 and has attended five visits with her son since that time.
[108] There is no evidence before the court of the father's niece having any contact with S.A-E.
[109] There are several reasons why it is not in S.A-E.'s best interest to be placed in the care of her paternal aunt. Some are as follows:
(a) The child does not know her aunt;
(b) The aunt works out of the home Monday to Friday full time and does not return until 6:00 p.m. The plan for the child's care cannot be based on the father being the primary caregiver for all the reasons set out above. While the aunt said she would consider daycare, that has not been arranged and due to Covid-19 may not be an option at the present time;
(c) The aunt did not demonstrate an understanding of the protection concerns involving her brother;
(d) The aunt did not acknowledge or demonstrate any understanding of the significance of the father's criminal record;
(e) The aunt did not acknowledge or demonstrate an understanding of the potential emotional harm the father may have caused S.A-E. by destabilizing her placement with V.R.; and,
(f) The aunt's evidence did not set out for the court how she would manage her brother should he act in a manner contrary to S.A-E.'s best interests. In fact, her evidence did not contemplate the possibility of such actions.
[110] In reaching the conclusion that it is not in S.A-E.'s best interests to be placed with her paternal aunt, the court mostly relies on the lack of a relationship between the aunt and S.A-E. and the fact that the aunt has only seen the child once in the last two years. If the child enjoyed a close and loving relationship with her paternal aunt, the other concerns might have been adequately addressed by additional orders or terms of supervision.
Conclusion Regarding Temporary Care and Custody of S.A-E.
[111] As the society is the only party presenting a plan that is able to meet S.A-E.'s needs while providing her with a safe and stable home and caregiver, there will be an order placing the child in the temporary care and custody of the Children's Aid Society of Toronto.
Access
[112] As set out above, both parents are seeking orders for generous overnight access to S.A-E. The society asks the court to maintain the current order for access by both parents at the society's discretion. The society made it clear that they are not in a position to offer in person access due to the Covid-19 pandemic and would only be facilitating video contact at this time and until it is safe to offer in person access.
(a) The Father's Access
[113] Prior to the Covid-19 pandemic the father was exercising supervised access once per week for two hours. The society was contemplating moving to access in the community supervised by a family member and held a meeting with the father and his family members. That plan did not come to fruition. The evidence does not support such a drastic move in access to allow for extended overnight access in the father's home, even if supervised by the maternal grandmother and/or aunt.
[114] The society will no longer supervise the access due to the Covid-19 pandemic and is only facilitating video calls between the father and S.A-E. The father's mother and sister have both sworn affidavits confirming that if necessary, they will supervise the father's in person access. They have detailed for the court the steps that they have taken to comply with the current health emergency. If the paternal grandmother and/or aunt are to be considered appropriate access supervisors, they must establish a relationship with the society and the child. They can start by participating in the video calls the father is having with S.A-E. twice her per week. They must also be able to demonstrate that they will put the needs of the child before the father and do all that is necessary to protect her. The paternal aunt's previous involvement with the society does not instantly approve her as an access supervisor in this case which involves different parents and a different child.
[115] The father argues that this case will require a trial and he must be able to expand access in order to be able to demonstrate at trial that he presents a viable plan for the child. While there is merit to the father's argument, the court was not presented with an appropriate supervisor. The court will not make an order that could disrupt S.A-E.'s current placement simply because an appropriate supervisor has not been identified.
[116] It is unfortunate that the society is currently unable to supervise access. That may change in the near future. While the court is not willing at this time to vary the access order it will monitor the access closely to ensure that when face to face access is possible and can occur safely, it will be offered by the society without delay. This includes the society continuing to assess the paternal grandmother and/or aunt to supervise the father's access.
[117] To be clear, while the existence of the Covid-19 pandemic does not impact on this court's decision with respect to the temporary care and custody of S.A-E., it is having an impact on the father's access. But for the pandemic, his access would be in person. Had the court found the paternal aunt or grandmother, or some other third party appropriate to supervise the father's access, in person access would have been contemplated by the court even in the face of the Covid-19 pandemic. Therefore, given that there may be many changes to the health and safety protocols in the life of this pandemic, the society is expected to move to in person access by the father when such access can occur safely. If the parties cannot agree on a proposed supervisor or whether in person access can take place safely, the father is free to the matter back before the court.
(b) The Mother's Access
[118] The mother has not had any meaningful access to S.A-E. really since she was first brought into care in February 2018. There is evidence from V.R. that S.A-E. does not know her mother. The mother has not demonstrated an ability to commit to access to S.A-E. The mother has a lot of work to do before unsupervised access can be contemplated. The society ought to provide the mother with a written list of their current expectations for the mother before, in their estimation, unsupervised access can occur. In the meantime, access by the mother to S.A-E. shall continue to be at the society's discretion.
Conclusion Regarding Access
[119] S.A-E. has experienced a significant amount of upheaval in her short life. She needs the time to settle into her new home and become accustomed to the change in her primary caregiver (who is, luckily, her former foster mother) and feel safe and secure before introducing another substantial change to her routine. Overnight access with either parent would amount to a substantial change in her life, is not in her best interests, and will not be ordered at this time.
[120] As the evidence does not support an order for an expansion of either parent's access to S.A-E. at this time, their access shall continue to be at the discretion of the society. The court is not prepared to order face to face access by either parent as there is no approved third party to supervise access. The court will continue to monitor access including considering possible third party supervisors should the society continue to be unwilling to supervise the access.
Order
[121] The father's motion is dismissed in its entirety.
[122] The mother's motion is dismissed in its entirety.
[123] Order to go placing the child, S.A-E. in the temporary care and custody of the Children's Aid Society of Toronto.
[124] Access by the mother and father to the child shall be in the discretion of the Children's Aid Society of Toronto.
[125] The parties shall ensure that the original documents relied upon on the Motions are filed in the Continuing Record as soon as they are permitted to do so.
Released: May 22, 2020
Signed: Justice Melanie Sager
Footnotes
[1] Who has also been referred to as the mother's "great aunt".
[2] The order requires the mother to keep the society advised of her current address and contact information.
[3] The father's evidence did not include a copy of the terms of his probation.
[4] The mother also did not advise the society of these living arrangements in direct contravention of Justice Sherr's order of December 3, 2019.
[5] This also raises the question of whether this is another breach of the father's probation?
[6] The Statement of Agreed Facts signed by the mother on December 3, 2019, makes it clear to the court that the child was bonded to the foster mother with whom it was agreed the child would maintain a relationship after being placed with V.R.