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: 2020-06-19
Court File No.: Toronto CFO-18-15684 Ext 2
Parties
Between:
Catholic Children's Aid Society of Toronto Applicant
— And —
A.A. and R.V. Respondents
Before the Court
Before: Justice Alex Finlayson
Motion Heard on: June 18, 2020
Decision Released on: June 19, 2020
Counsel
Lauren Stringer — counsel for the applicant society
Mira Pilch — counsel for the respondent mother, A.A.
R.V. — the respondent father on his own behalf
ALEX FINLAYSON J.:
PART I: OVERVIEW
[1] This is my decision regarding the Catholic Children's Aid Society's (the "Society") motion for an order placing the parties' almost one-month old infant son, A. A-V., born […], 2020, in the mother's temporary care and custody, subject to a supervision order.
[2] There is another related file before this Court concerning the parties' two year and eight months-old son, J. A.-V. Pursuant to an Order in that proceeding, J. A.-V. resides with the mother's aunt in Ajax, Ontario.
[3] At the outset of this motion concerning A. A.-V., the mother consented to most of the terms of supervision that pertain to her, in Society's Amended Notice of Motion dated June 11, 2020. So at the end of the motion, I made a temporary order for those terms and conditions, on consent. The outstanding issues that did not resolve on consent and which were argued, pertain to two particular paragraphs in the Society's Amended Notice of Motion.
[4] The Society seeks an Order, that as a condition of A. A.-V. remaining in her care, the mother shall reside at Rosalie Hall Maternity Home, or another maternity home that provides daily support to new mothers. It asks for an Order that the mother shall cooperate with the maternity home's rules and recommendations. And if the mother refuses to reside at Rosalie Hall with A. A.-V., then the Society asks that the child shall be placed in its temporary care and custody, with access to the parents in its discretion.
[5] The mother does not want to move into Rosalie Hall with A. A.-V. for various reasons, which I will address. She has an alternative plan before the Court, that consists of her living on her own, with members of the father's family dropping in from time to time to help her care for A. A-V.
[6] There are also a number of terms in the Amended Notice of Motion pertaining to father. The Society says that the father must engage in a series of programming, in order for his access to A. A.-V. to be safe and to move beyond supervision. I am told that the father has refused, so far, to work with the family services worker, Ms. De Celis, to get that programming underway. Like the mother, he admitted during the motion that he does not trust Ms. De Celis.
PART II: PRELIMINARY EVIDENTIARY ISSUES
[7] At the outset of the motion, the mother chose to bring a motion to strike 12 paragraphs of Ms. De Celis' reply affidavit of June 16, 2020. Most of the objections centered around arguments that certain statements in Ms. De Celis' affidavit were not proper reply. Counsel for the mother seemed to suggest that the Society may never provide new or additional facts, even when that is done to reply to, or to provide context surrounding new statements made by the mother in her responding affidavit.
[8] For oral reasons delivered during the motion, I struck only one paragraph in full, and two sentences of another paragraph in the reply affidavit[1].
[9] This motion was booked for a 1-hour teleconference during the Court's reduced operations because of Covid-19. That would have been ample time to hear the motion, but for these preliminary objections. The trial coordinator in this Court is busy trying to coordinate the case load, with reduced staff and reduced court rooms due to Covid-19. This mostly meritless motion to strike consumed close to 35 minutes of the 1 hour that had been allocated for argument of the main motion. Counsel for the Society then rightly became concerned that she would have insufficient time to make proper submissions about the matters raised in the affidavit material, let alone would their be sufficient time for the parents to make their submissions.
[10] In the result, given the timeliness and importance of the issues raised in the motion, court staff had to re-arrange the Court's schedule and court rooms, in order for the Court to be in a position to devote ample time for this motion to proceed.
[11] At no time during the motion to strike was I told that counsel for the mother made any attempt to discuss the concerns about the affidavit with counsel for the Society in advance, nor was I told that any attempt had been made to narrow or focus the evidentiary objections. In the future, regardless of Covid-19, this should be done.
[12] Quite apart from those evidentiary objections, more generally, counsel for the mother also submitted that the Society did not meet its onus to provide "cogent and strong evidence" to prove its claims. That is not the test respecting the admission of evidence for a motion of this nature.
[13] Pursuant to section 94(10) of the Child Youth and Family Services Act, 2017 (the "CYFSA"), the Court may admit and act on evidence it considers credible and trustworthy in the circumstances. For reasons that follow, I find that the Society's evidence meets that test, and I find that there is ample evidence at this stage of the case, to justify the temporary order it seeks.
PART III: APPLICABLE LEGAL PRINCIPLES
[14] While this motion is specifically governed by certain provisions of section 94 of the CYFSA, the paramount purpose in section 1(1) of the CYFSA applies and it is to promote the best interests, protection and well-being of children.
[15] In deciding the issues raised on this motion, I also bear in mind the preamble to the CYFSA, and I consider the issues raised in the motion through the lens of the statutory purposes of the legislation set out in sections 1(1) and 1(2). In deciding what is in a child's best interest, various provisions in the CYFSA do place an emphasis on family reunification, but it must be safe and appropriate to do so.
[16] Section 94(4) of the CYFSA says that the Court shall not make an order under clause (2)(c) or (d) (placing the child in the care of someone else or in the care of the Society) unless the court is satisfied that there are reasonable grounds to believe that there is a risk that the child is likely to suffer harm and that the child cannot be protected adequately by an order under clause (2)(a) or (b) (return to the parent with or without terms).
[17] However, no alternative plan for the placement of A. A.-V. with another person was presented to the Court, such that section 94(2)(c) is engaged. This motion entails a contest between sections 94(2)(b) and (d) of the CYFSA. In other words, the Society's position is that either A.A.-V. shall remain with the mother on terms and conditions, including that she reside at Rosalie Hall (ie. an order under section 94(2)(b)), or that A. A.-V. must come into care (ie. an order under section 94(2)(d)).
[18] The mother says the least restrictive option to address the risk would be that the Court should implement her plan (ie. make a supervision order section 94(2)(b), without the terms about Rosalie Hall).
[19] It is well established that at a temporary care and custody hearing, there is a two-part test that the Society must meet. First, the onus is on the Society to demonstrate, on credible and trustworthy evidence, that there are reasonable grounds to believe that there is a real possibility that if a child is returned to the person having charge of the child prior to the Society's intervention, it is more probable than not that the child will suffer harm. See Children's Aid Society of Ottawa-Carleton v. T., [2000] O.J. No. 2273 (S.C.J.).
[20] The second part of the test is that the Society also bears the onus to establish that the child cannot be adequately protected by terms of conditions of an interim supervision order. See Children's Aid Society of Ottawa-Carleton v. T., [2000] O.J. No. 2273 (S.C.J.).
[21] It is a trite principle that the Society (and the Court) should take the least disruptive course of action to protect a child. The Court must choose the order that is the least disruptive placement consistent with adequate protection of the child as required by subsection 1(2) of the CYFSA; see also Children's Aid Society of Hamilton v. B.D. and F.T.M., 2012 ONSC 2448. The degree of intrusiveness of the Society's intervention and the interim protection ordered by the Court should be proportional to the degree of risk. Catholic Children's Aid Society of Toronto v. J.O., 2012 ONCJ 269.
[22] Pursuant to section 94(6) of the CYFSA, the Court is empowered to order reasonable terms and conditions relating to the child's care and supervision, on the child's parent, and on any other person, other than a foster parent, who is putting forward a plan or who would participate in a plan for care and custody of or access to the child. The Court may also order reasonable terms and conditions on the Society that will supervise the placement, but shall not require the society to provide financial assistance or to purchase any goods or services.
[23] Finally, section 94(11) of the CYFSA requires the Court to take into consideration the child's views and wishes, unless they cannot be ascertained, at a temporary care and custody hearing. Given the child's age, this section of the CYFSA is not applicable on this motion.
[24] The mother has already agreed to a supervision order, just not all of the terms proposed by the Society. That is a concession that the Society has met its onus respecting this first branch of the test. And in addition, counsel for the mother also specifically conceded this point at the outset of argument. So it was on the second branch of the test, and in particular the nature of the risks alleged, and the necessity of, and the degree of intrusiveness of the Rosalie Hall term, in relation to those risks, that the submissions focused.
PART IV: THE EVIDENCE
A. The Society's Concerns
[25] Although the first branch of the test is conceded, in order to consider the appropriateness of the term respecting Rosalie Hall, it is necessary to first characterize the risks alleged in this case.
[26] In its affidavit material, the Society sets out some concerns about the mother's past substance misuse, and mental health. This evidence is disputed. Later in this ruling I will address the evidence about mental health in more detail. Nevertheless, and while it may be revealed as the case unfolds that there either is, or is not a problem respecting mental health or substance misuse, the Society did not heavily rely on these grounds to support the terms it seeks respecting Rosalie Hall, so I need not say much further about this here.
[27] Rather, the Society's grounds for the terms about Rosalie Hall are really four-fold.
[28] First, the Society relies on the mother's past inability to care for her older son, J. A.-V. The Society says that mother has been unable to adequately attend to the needs of J. A.-V. either when she resided with her aunt for about 2 months in late 2017, or during subsequent access visits with him. The Society says the mother required constant reminders from her aunt to follow-up with basic cues of J. A.-V., and to provide instrumental care.
[29] Second, the parents have not been consistent in exercising access to J. A.-V. And as I have just said, there were problems with the mother's care of J. A.-V. during the access visits that did occur.
[30] Third, the parents have a history of domestic violence in their relationship. This has included criminal charges of assault, and at least one no contact order, which has been breached. Although the mother now claims the relationship with the father is over, her current plan is to move into the father's apartment with A. A.-V., which the father has vacated.
[31] Fourth, the mother's post-partum plans have changed multiple times, leading up to this motion. The mother does not have a solid plan to care for A. A.-V. at this time. Nor does the mother have the support network via members of her own family that she needs. There are questions about the extent of her professional support network. And she intends to rely on the father's family for help, even while maintaining that the relationship with father is over.
B. The Evidence of the Mother's Parenting Skills While She Resided With the Aunt in 2017
[32] Both parents are young, immature parents, who require additional parenting skills. When the Society first came into contact with the parents in about 2017 with respect to their care of J. A.-V., in addition to learning that there had been a history of criminal activity by the father, domestic violence, and drug and alcohol misuse, certainly by the father and perhaps also by the mother, the worker at the time also learned that neither parent had taken a prenatal course, and they had little supports in place.
[33] After his birth, J. A.-V. had been admitted to Sickkids due to a bowel obstruction. Even early on, while a hospital social worker provided some positive feedback about the parents and the extended family, he also noted to the Society that the parents needed to develop their parenting skills.
[34] At around that time, the Society verified that there was a risk relating to the parents having limited caregiving skills. So in 2017, a Family Centered Conference was convened, and a safety plan was devised and implemented, whereby the mother would move in with her aunt in Ajax, Ontario. The aunt agreed to monitor vigilantly the mother and J. A-V.
[35] This plan was short lived. The mother lived with her aunt and J. A.-V. for about 2 months only, until December 28, 2017. During that time, there were reports of two incidents of conflict between the mother, the aunt and the mother's cousin, one of which escalated to violence. The conflict pertained to J. A.-V.'s care.
[36] According to the Society's evidence, in December 2017, the mother was filling up a bath for J. A.-V. Apparently, someone turned off the water. The mother became upset about this and started yelling. The aunt's 16 year-old daughter got involved, telling the mother to calm down. The mother then attacked her cousin, and a fight ensued.
[37] Later in December 2017, the family was getting ready to go out to a restaurant. The mother refused to go and tried to block the aunt from taking J. A.-V. with her.
[38] Following this second incident, the aunt asked the mother to leave the home and move back to her apartment in Toronto. The mother refused to leave without J. A.-V. and so the Society had to get involved. In the result, on December 28, 2017, the Society worker drove the mother back to her apartment in Toronto.
[39] During its investigation leading up to the mother's departure on December 28, 2017, the Society worker learned additional information about the mother's inability to care for J. A.-V. during her short stay at the aunt's home. The Society worker was told that the mother had attempted to give the baby a bottle that was "very hot". She was told that the mother failed to give the child medication that had been prescribed. And she was told that mother was not getting up in the night to change the baby's diaper. The aunt reported that when she redirected the mother to change the diaper, the mother would respond "he's fine". There were also arguments about the child's clothing.
[40] In her affidavit of June 12, 2020, the mother now says that she is "not a first time parent" and that she has spent the past two and a half years taking care of J. A.-V., "for as much time as the Society permitted". I do not accept this statement based on the record before me. As I will explain below, after the mother left the aunt's home in December 2017, even access, at times, became problematic. Not only were the parents inconsistent with access, but as I will explain, the aunt continued to report concerns of a similar nature about the mother's care of J. A.-V. during some of the visits that did occur.
C. The Parents' Access Visits
[41] Again, the parents have not been consistent with access to J. A.-V. since the mother's departure from the aunt's home on December 28, 2017. For example, the record reveals that on January 17, 2018, the aunt reported that the mother (and the father) only came to see the child once since in the past few weeks, since the mother moved out. Apparently, the father then reported that he would only be ready to be a father in 2 years.
[42] The mother says that the aunt would not let her visit after she left in December 2017. Yet at the same time, the aunt is reporting to Ms. De Celis that the mother is not coming, suggesting that she could come, but chose not to. This factual dispute will have to be reconciled in due course. Meanwhile, and in spite of those statements, at some point in the winter or the spring of 2018, the mother did resume seeing the child on weekends at the aunt's home and for overnights.
[43] The father's access, by contrast, continued to be problematic. In May 2018, the father reported to Ms. De Celis that he had not seen the baby for one month, and that he "want[ed] out". He complained about work problems, relationship problems and money problems.
[44] One year later, there continued to be a pattern of the parents going long periods without visiting J. A.-V. On August 13, 2019, the aunt again reported to Ms. De Celis that the mother had not visited J. A.-V. for about one month. Apparently, the mother told the aunt that she had a swollen black eye, that she had been having problems with the father, and that she did not want her family or J. A.-V. to see her that way, as the reasons for stopping visits.
[45] On November 19, 2019, the aunt again advised Ms. De Celis that the mother had not been attending regular visits with J.A.-V.. Once again, the last visit had occurred about one month earlier, this time on October 21, 2019. The aunt continued to report that father had not been attending at all, choosing only to see J. A.-V. at family functions that occurred with the paternal side of the family.
[46] The aunt also reported to Ms. De Celis various concerns about the mother's parenting skills during the access visits that did occur. For example, on November 19, 2019, the aunt reported that during the mother's visits with J.A.-V., while she will play with the child, change him and feed him, she has to be reminded to do so. Similar concerns have persisted and were reported about the mother's interaction with A.A.-V. after his birth on […], 2020. And on February 20, 2020, the aunt reported to Ms. De Celis that the mother struggles with budgeting money. She provided additional examples of the mother's ongoing need for support when caring for J. A.-V.
[47] The mother alleges that on November 16, 2019, the aunt told her that she was no longer allowed to stay overnight at her home on weekends any more. Because the aunt lives in Ajax, the mother says it was difficult to get there and so the inability to stay overnights was a hardship. The Court had to oversee and address these problems with access. On December 16, 2019, Pawagi J. ordered that there was a new plan for the mother's access to start happening twice a week, to be expanded gradually if the access goes well.
[48] There continued to be conflict between the mother and the aunt surrounding access and issues relating to J. A.-V. So according to Ms. De Celis, on December 23, 2019, the Society moved visits to its offices, as the mother no longer wanted to have access at her aunt's home. But then the mother changed her mind, and did not attend at the Society's offices. Instead, she told the worker that the aunt allowed her to have a visit over Christmas and then she just resumed attending visits in Ajax. In the result, on January 22, 2020, the Society cancelled the visits at its offices that just been set up.
[49] About three months later, in March 2020, the mother stopped seeing J. A.-V. Mother says that the aunt would not let her attend, due to Covid-19. The mother has been having visits via Facetime since then.
[50] In contrast to what the aunt has said, the mother says that during her access visits, she was responsible for feeding J. A.-V., playing with him, and in general that she assumed primary responsibility for him on all the visits.
D. The Mother's Parenting Skills Following A. A.-V.'s Birth on […], 2020
[51] Following A. A.-V.'s birth on […], 2020, the mother was offered a 5-day/5-night program in the hospital, offered to new mothers, with a history of mental health issues. The mother declined, saying that she would consult a doctor if she felt depressed.
[52] Upon the mother's and the child's discharge from hospital on May 26, 2020, a very temporary plan was devised whereby the mother was allowed to return to the aunt's home in Ajax. Below, I explain how this plan was arrived at. Regardless, the aunt is not prepared or able to have the mother and/or A. A.-V. stay in the longer term. In fact, at the hearing of this motion, counsel for the Society impressed upon the Court the need for a decision regarding Rosalie Hall very soon, based on the uncertainty flowing from the absence of a court order.
[53] The aunt reported to Ms. De Celis that on the day of the discharge, the mother was not prepared. She referred to the discharge as "hectic". Although the mother disputes this and says that she did bring some supplies with her to the hospital for the baby when she went into labour, the mother herself admitted that she did not have a car seat with her. She later called a paternal aunt to retrieve it and bring it.
[54] Ms. De Celis has spoken to the aunt in Ajax twice in the last month since the discharge on May 26, 2020. The aunt reported that, since the mother has been staying with her again, and while the mother will now wake up during the nights to attend to A. A.-V., the maternal grandmother also gets up to help her. The mother will ask the maternal grandmother to prepare the baby's bottle, too, and to watch the baby, such as when she wants to shower. According to the aunt, the mother continues to require instructions about how to manage laundry, doctor's appointments and grocery shopping on her own.
[55] The mother disagrees, and says that the aunt has not been providing any child care to A. A.-V. since May 26, 2020. The mother says that she has been doing all the feeding, bathing changing and putting to bed of A. A.-V., and ensuring that he receives appropriate medical care.
E. The Mother's Overall Position Respecting This Evidence
[56] The mother says that early on, she was with J. A.-V. the entire time he was in the hospital. She says that she has been falsely suspected and investigated of drug and alcohol misuse. She feels she was forced to go live with her aunt after J. A.-V.'s birth and then was not allowed to parent J. A.-V. by her aunt.
[57] The mother says that the Society "made up its mind" early on about her inability to parent when J. A.-V. was born. She says that the Society is not acknowledging the gains that she has made. And that same attitude has prevails respecting her ability to parent A. A.-V. Despite these obstacles, she learned how to care for J. A.-V., without supervision.
[58] The mother says that she desperately wanted to take J. A-V. with her when she left the aunt's home on December 28, 2017, but she was not allowed to. In saying this, she does not specifically address the conflict in the home that transpired in December, 2017 leading to her departure.
[59] The mother describes her relationship with the aunt as "complex". While she acknowledges that the aunt has been a support to her, she also says the aunt wants to adopt J. A.-V. The mother finds it difficult to confide in her as a result. She accuses the aunt of not being neutral. She also accuses Ms. De Celis of not having independently investigated this case, choosing instead to rely on the aunt's reports.
[60] Meanwhile, the mother's statements about the parenting tasks she says she assumed are very definitive. She uses words like "all" and "entire" when talking about the care she provided for J. A.V., and now A. A.-V.
F. History of Domestic Violence
[61] There are 3 incidents of domestic violence between the parents referred to in the materials, once example of the parents breaching a no-contact term of a bail, and another example of the mother signalling her intention to the aunt to just disregard that no-contact term in bail for a second time.
[62] First, during the Society's investigation in 2017, the father acknowledged that he was charged with "domestic violence" against the mother, plus another charge in relation to another incident involving a "fight at a club".
[63] Second, on another occasion, the mother showed the Society worker a bruise on her leg, which was the size of a "tennis ball". According to Ms. De Celis, the mother said that the father did this to her, when he came home drunk. The father said he did not mean to do this, but he was just trying to "get her off his back and to leave him alone, as she was pulling him out of bed". The father admitted to Ms. De Celis that he kicked her, to get her off.
[64] The mother herself admits that the father assaulted her on December 31, 2016. She points out that this was prior to J. A.-V.'s birth. But she also says that she has gone through counselling, and is better equipped to understand how she became involved in that relationship, and how it was harmful to her.
[65] Yet, the relationship continued. On July 27, 2019, this time, the mother was charged with assaulting the father. While those charges were eventually resolved in December 2019 by way of a one-year peace bond, prior to the resolution of the charges, I am told that bail conditions were in place that prohibited contact between the two parents. The Society says that while the no-contact term was in place, the mother became pregnant with A. A.-V. and therefore, there had to be contact between the two parents.
[66] The mother's explanation is that it was actually the father who assaulted her, but she got arrested. Regardless, she denies that she breached the no-contact term. According to the mother, the parents had spent time together in July (before the restrictions were put in place). She says that while she did not know it at the time of the August assault, she was already pregnant already as a result of that July contact, when the assault later occurred.
[67] I do not find this explanation to be credible. First, I do not have enough details to understand why the mother was charged if the father assaulted her. And second, Ms. De Celis' affidavit is explicit as to the date of the charge being July 27, 2019. The mother's affidavit, by contrast, refers more generally to the assault happening in August. If I accept Ms. De Celis' evidence as to the date of the assault, July 27, 2019, that was 3 days shy of 10 months prior to the child's birth. According to the mother, they had contact leading to the pregnancy in July, and prior to the charge. Even if the charge happened sometime in August as the mother says, again the mother is clear that the pregnancy occurred as a result of their contact in July. That would mean she would have been pregnant for a minimum of 10 months by the time of the birth on […], 2020. That is impossible.
[68] And related to this no-contact term, on November 19, 2019, the aunt reported to the Society yet another incident of conflict between her and the mother, this time related to this past domestic violence. Around this time, J. A.-V.'s paternal family had arranged a party for him. The father was going to be present. The mother wanted to attend, but the aunt said no to her, due to the no-contact term in the bail. The mother became upset. According to the aunt, the mother had to be reminded that the bail term was still in place.
[69] It is not only domestic violence that causes the Court to be concerned. This relationship between the parents was volatile. There is other evidence of conflict in the evidence that even though it did not rise to the level of physical altercations, is concerning. For example, during another incident, there was apparently some argument in a bar between the two, that resulted in the police being called.
[70] The affidavit material also contains different examples of discussions between the parents about potential separations between 2017 and now. Although the mother says the relationship is over, I am not confident that this is the case.
G. The Mother's Changing Plans
[71] The mother has not advanced a realistic plan to support her in caring for A. A.-V., for when this current, very temporary stay with the aunt in Ajax, comes to an end. Next, I will map out the various plans the mother has advanced as detailed in the Society's affidavits, almost none of which the mother has explained in her responding materials.
[72] To begin, when the mother advised the Society that she was pregnant, Ms. De Celis told the mother that she would need a responsible person to help her plan for the baby, and to live with once the baby was born.
[73] Next, on January 28, 2020, Ms. De Celis sent the mother a list of resources and supports for young parents, including Rosalie Hall. The Society wanted to set up a meeting to discuss the list and the mother going to Rosalie Hall. The mother responded saying that she was not interested, and would be moving in with her half-sister, B.G.
[74] Then, on February 20, 2020, the mother advised that she would be moving in with B.G. at the end of March. According to Ms. De Celis, the mother said she would then live with the aunt for an "undetermined amount of time", only to return back to B.G.'s home after that.
[75] I am told that B.G. has three children of her own. And that same day, February 20, 2020, the aunt reported to Ms. De Celis that the mother and her half-sister had just become acquainted, and did not really know each other.
[76] On February 21, 2020, B.G. confirmed to Ms. De Celis that she did not know her sister very well; according to B.G., they had only met for the first time about three years ago. And the last time they spoke was in December, 2019. And according to B.G., there were times in between December 2019 and February 2020 that the mother stopped talking to her.
[77] Next, on March 20, 2020, the mother's plan changed, again. Now the mother reported that she planned to move out of her bachelor apartment at the end of March, to move into the father's apartment instead. According to Ms. De Celis, the mother reported that the father would move out to allow for this, but that he would still pay for half the rent. The mother's plan was still to stay the aunt initially after the birth for "as long as needed", but then she would be going back to this apartment, rather than B.G.'s place. When Ms. De Celis told the mother that she wanted her to stay with the aunt for 6 months, the mother said that the aunt would not agree to that length of time. The mother also reported that she and her half-sister, B.G., were no longer on good terms.
[78] Then on April 1, 2020, the mother's plan changed again. This time, the mother advised that she would now stay in her own apartment, then go to the aunt's one week before giving birth. But then, on April 2, 2020, the mother said she may now be moving out of her apartment earlier on April 17, 2020, and into the father's apartment first, before going to stay with the aunt.
[79] On April 9, 2020, the father confirmed to Ms. De Celis that he would be moving out at the beginning of May. I am not clear whether this means that there would have been some overlap between April 17 and the beginning of May, with both parents in the father's apartment for about 13 days.
[80] In response to all this, on April 15, 2020, there was a Family Centered Conference. On that date, the mother's plan was still to stay with the aunt, now for two weeks, and then to go back to the father's apartment. The mother advised that the father had relatives in the same building, and so they could check in on her.
[81] The Society rejected this proposal. The Family Centered Conference meeting resulted in an agreement only that the mother would move into the aunt's home for two weeks following A. A.-V.'s birth. The Society said it would bring the matter to Court for a determination as to whether the Court was satisfied with the mother's plan.
[82] Ms. De Celis continued to try to persuade the mother to agree to Rosalie Hall. On May 8, 2020, the mother again said that she did not want to go there, and now she changed her plan again. Once again, she said that she would be going to her half-sister's home.
[83] Ms. De Celis followed up on this plan, and spoke to B.G. after this. According to Ms. De Celis, on May 15, 2020, B.G. told her that she was now in a better position to support the mother, because her own children would be going to their father's house for about a month. In response, Ms. De Celis told B.G. that she felt that the mother would need support for at least 3 to 4 months. B.G. then said that she could not have the mother live with her for more than a few weeks, due to family and work commitments. According to Ms. De Celis, B.G. concluded by saying "I am not the best for her right now".
[84] On May 25, 2020, B.G. changed her mind again, and sent a text message to Ms. De Celis saying that she did not want the baby removed from the mother's care. She said that she wanted to help her sister. In any case, B.G. is no longer part of the mother's current plan that was presented to the Court.
[85] Above, I said that the mother did not really explain why she has changed her plans so frequently. All she said in her affidavit, is that while at one point, she was going to live with B.G., in the end she decided her new plan is a better one.
H. The Mother's Actual Plan
[86] Again, the mother's plan is now to live at the father's apartment.
[87] To implement this plan, the mother says that she moved out of her own apartment at the end of April, 2020.
[88] The mother is in receipt of social assistance and is able to contribute towards rent. Although she also relies on the father to contribute.
[89] The mother is critical of Ms. De Celis for not having visited her former apartment more regularly, and for not having come to see the new apartment at all.
[90] She once again makes a very strong statement, this time about how she perceives that Ms. De Celis did not do her job properly. Specifically, regarding her former apartment, she said the worker made "no effort" to visit her until November, 2019, and then she only attended once.
[91] This evidence is not true.
[92] Ms. De Celis says that she actually tried to arrange with the mother to see the apartment back in September 2019. When the mother did not respond, she attended unannounced. The mother was not home.
[93] Later, they were able to arrange another visit for October 15, 2019. This time, when Ms. De Celis attended a planned visit, the mother was also not there.
[94] It is true that Ms. De Celis was eventually able to attend the apartment for the first time in November 14, 2019. But she did not just go once. She went again on January 22, 2020 and was able to visit the mother that day too.
[95] Plus, Ms. De Celis made another unannounced visit on December 17, 2019, but once again, the mother was not home.
[96] In any case, the mother says that one of the main reasons for her decision to move into the father's apartment was because the paternal grandmother and the paternal aunt live in the building. She says that family members will come to her home every day, or as required, to assist her to transition to full-time parenting on her own. The grandmother is prepared to cook for her in the initial weeks, and come to the apartment for part of every day. She can take A. A.-V. to her place.
[97] While the paternal aunt who lives in the building does work, she is available to provide 'support and assistance" according to the mother. Both paternal grandmother and aunt can also provide temporary babysitting, should the mother need to run errands.
[98] And despite the evidence of the ambivalence of B.G., B.G. remains part of this current plan. The mother says that B.G. has been "very supportive". She says B.G. will telephone her to see how she is doing with A. A.-V., and she says that B.G. is also able to visit.
[99] The mother says that the Society would not consider this plan at the April 15, 2020 meeting. The real dispute between the Society and the mother is about the level of supervision that the mother requires. Ms. De Celis says that members of the father's family, who were present at the meeting, confirmed that they could only "check in" on the mother, but not provide the ongoing supervision, or move in with her, which the Society says is required.
I. Lack of Supports
[100] The mother lacks supports. Apart from this statement about B.G., she admits that she does not have support from members of her own family. As I have just explained, her current plan relies heavily on members of the father's family.
[101] Earlier, I said that on January 28, 2020, Ms. De Celis sent the mother a list of resources and supports for young parents, including Rosalie Hall. The mother's account is that Ms. De Celis did not meet with her to discuss Rosalie Hall at all, or arrange a meeting for her and staff at Rosalie Hall. The mother says she had to do this on her own.
[102] I find Ms. De Celis' account to be more likely, in that the Society wanted to set up a meeting to discuss the list, and to discuss the mother going to Rosalie Hall, but the mother responded saying that she was not interested, and at that time, she said she would be moving in with her sister.
[103] And even if what the mother says is true about Ms. De Celis' failure to take steps to inform the mother about Rosalie Hall (which I do not accept), there was then the subsequent meeting on April 15, 2020, during which Rosalie Hall was discussed anyway.
J. Rosalie Hall
[104] Rosalie Hall is a maternity home where the mother may be monitored and will have ongoing support for herself and her new born. There are staff persons working there 24 hours per day, 7 days per week, and they will check in on the mother. The mother will be expected to attend programs, and there is "baby time", where a worker will teach the mother how to read the baby's cues. And Rosalie Hall will provide baby supplies during the mother's stay.
[105] The mother is opposed to going to Rosalie Hall. She does not agree that she requires this level of supervision.
[106] Furthermore, a staff person at Rosalie Hall has advised Ms. De Celis that the mother will be required to isolate for the first 14 days during her stay at the maternity home due to Covid-19. The mother is opposed to this. Although support is provided to the mother during the 14-day period of isolation (I am told that staff would do most of the domestic duties for her during that time), the mother argues that she would have less support than were she to remain in her own apartment.
[107] The mother is also opposed to Rosalie Hall, saying that she will have to give up her residency in the father's apartment, if she goes to Rosalie Hall.
[108] Finally, she also is unhappy about the fact that once there, she cannot leave to see J. A.-V. due to Rosalie Hall's current Covid-19 restrictions. But regarding her visits with J. A.-V., I note that she is not currently seeing J. A.-V. except via video at this time as it is, due to Covid-19. So when Rosalie Hall relaxes its restrictions, in keeping with public health directives, the mother would be able to resume seeing J. A.-V.
K. The Mother's Improved Parenting Skills
[109] Despite the above, I do not wish the mother to read this Judgment and understand the Court to be saying that there is no evidence of her parenting skills or improvements. The Society's affidavits are not all negative, and the evidence of improvement is acknowledged, but with context. There is also some positive evidence of the mother's interactions with the child at the visits she did attend. So in short, there is some evidence of some improvement and of some parenting skills. But these need to be worked on.
[110] For example, the mother has taken a parenting class.
[111] The mother also has some medical support in place for herself and the child. In her affidavit of June 12, 2020, the mother says that she saw a certain doctor for pre-natal care and that doctor did not report any concerns to the Society.
[112] However, in her earlier affidavit of June 8, 2020, Ms. De Celis says she spoke to a different doctor on March 26, 2020, whom the mother had identified as her family doctor. That doctor said that he had only seen the mother six times in two years on a walk-in clinic basis. He was not aware if the mother was taking medication for anxiety, and said she should be monitored for post-partum depression due to her history of depression.
[113] On this point, I note that the mother admits to having suffered from depression and to having taken anti-depressants in the past. She says that she has not taken that medication since prior to A. A.V.'s birth, and this is under control. She says she feels positive, optimistic, not depressed, and she does not believe she needs to be on medication.
[114] The mother also says she has arranged to take the child to a pediatrician in Toronto. Arranging a doctor is a positive step. However, for context, no such visits in Toronto have yet occurred with the mother going on her own, because the child has been in Ajax since his birth.
[115] The mother also says she took the child to see a pediatrician three times while in Ajax, though.
[116] And the mother did attend counselling with UNISON Health and Community Services between June 2018 and May 2019. That is a positive. That counselling was in place to help the mother learn certain life skills and to manage.
[117] However, the mother stopped going.
[118] The mother says the "only reason that these sessions stopped" is because her counsellor left the position with UNISON, the counsellor was not replaced, and the mother was therefore told that she could not continue.
[119] However, I am concerned about the mother's credibility with respect to this evidence, too. In reply, Ms. De Celis says that she inquired of UNISON, and was told that a new counsellor was made available, but that the mother did not attend any sessions with that new counsellor.
PART V: ANALYSIS
A. Conclusions Respecting Rosalie Hall
[120] I agree with the Society's position on this motion. I find that Rosalie Hall is required. I disagree with counsel for the mother that it is too intrusive in relation to the degree of risk. In the absence of this term, I find that A. A.-V. cannot be adequately protected, and that he should be taken into care.
[121] I acknowledge that the mother has developed some parenting skills. But it also appears to the Court that she lacks insight into the extent of her ability to care for A. A.-V. at this point.
[122] The mother should continue to develop her skills. Rosalie Hall can assist her to do this. I find this to be a necessary safety net, to ensure that the mother and A. A.-V. continue to work towards being an intact family unit.
[123] The reality is that despite the mother's perspective, she has not cared for J. A.-V. for the past 2 ½ years, her access has not been consistent, there have been incidents of conflict between the mother and her aunt, and there are a number of concerns about her ability to care for either child. There is a risk that will not be abated right now, if the mother does not have more intensive support and supervision to help her continue to develop her parenting skills.
[124] I do not find the mother's various objections to Rosalie Hall to be a basis not to order that term. The mother's objections are more about her own needs, rather than those of A. A.-V.
[125] The mother's failure to consistently attend visits with J. A.-V., and then the evidence of the parenting skills she exhibited during some of those visits, causes the Court additional concern for this child.
[126] The fact that the mother does not have a solid plan also causes the Court concern. The plan has changed multiple times, with little explanation. I agree with the Society and do not find the "check in" and part-time assistance that the father's family can provide, to be sufficient.
[127] I am also not confident at this point that the mother's relationship with the father is actually over. She has said this in the past, and then clearly the relationship has continued. It is concerning that her plan involves living in the father's apartment, having him share in the payment of rent, and otherwise, that her plan that is heavily dependant upon members of the father's family. I cannot know with any certainty at this point that this dysfunctional relationship between the parents will not resume. The mother's plan will necessarily involve some interaction between the parents. And in light of the father's combative attitude towards Ms. De Celis, his past ambivalence to being a father and his failure to take any steps to address his own issues, which I will come to, this all increases the risk of the child's exposure to this dysfunctional relationship.
[128] Nor do I trust that the mother will be able to follow the terms of a supervision order on her own, at this point. One need only look at her interactions with the father. There is one example of a clear breach of a bail order, and another example of conflict arising out of the mother's stated intention to breach the bail, again.
[129] I do agree, on the one hand, that there is some merit to the mother's complaint that Ms. De Celis has relied on the reporting of the aunt about the mother's parenting skills, rather than direct observation. When I say there is some merit, I mean that this has occurred. However, the mother bears some responsibility for this. For example, above, I indicated that the Society did set up visits at its office. That would have allowed for direct observation evidence of the mother's interactions with A. A-V. But then the mother did not come, preferring to continue with visits in Ajax.
[130] Even though Ms. De Celis relied on reporting from the aunt, I do not find, based on the record before me, that Ms. De Celis did not do her job as the mother suggests. The mother's attack on Ms. De Celis reflects poorly on her, for the purposes of this motion. She clearly does not have a good relationship with the family services worker. That too causes the Court concern in a supervision order scenario, without the protective factor of Rosalie Hall. How can the Court trust the mother to work cooperatively with the Society, in the face of this conflictual relationship and these allegations.
[131] Related to this is the mother's criticism of her aunt. She does not trust the aunt, and accuses her of having an ulterior motive relating to wanting to adopt J. A.-V. I cannot assess this based on this record. This may be true; or it may not be. But what these statements show at this stage, is another conflictual relationship that is not good for A. A.-V.
[132] On those points, Rosalie Hall is a tool that the mother can rely on to support her case that Ms. De Celis is not taking her stated parenting skills seriously, that she is overly relying on negative reports from the aunt, and that the aunt is not being truthful. If the mother has the parenting skills she says she has, then this will be readily apparent to the staff at Rosalie Hall. Rosalie Hall will provide a different, and objective source of information that the mother can rely on in her case. And if there are immediate parenting skills that become apparent and Rosalie Hall staff reports that mother need not be there, then this matter may return before me on a variation motion.
[133] All this leads me to be concerned that without the Rosalie Hall term, A. A.-V. will not be adequately protected. So, it is for those reasons that I am ordering the term sought by the Society respecting Rosalie Hall. If the mother refuses to move there, then A. A.-V. shall be taken into care.
[134] Above, I mentioned the concern about the mother's past depression. And there is an issue in the affidavit material, as to whether the mother was diagnosed with FASD in the past. According to Ms. De Celis, that concern is based in part on the mother's own self-report from 2017. In addition, Ms. De Celis says that more recently, the doctor from the walk-in clinic told her he gave the mother a referral for CAMH. But when the Society called CAMH, no records existed, leading the Society to believe that the mother did not follow through.
[135] In spite of this evidence, the Society did not strenuously pursue concerns about the mother's mental health or development as a basis for the need for Rosalie Hall. This should be investigated further in the litigation. But to be clear, I am not relying on the evidence of mental health concerns in ordering Rosalie Hall. I need not do so. In my view, the other factors, which I have just mentioned, support the Order that I intend to make.
B. The Father's Access
[136] There is specific evidence in the Society's affidavits concerning the father's past ambivalence towards being a parent, alcohol and drug use, anger management and violence, and perhaps mental health.
[137] The difficulty is that he himself did not file any material. He told the Court that he does not trust Ms. De Celis. He has not taken any steps to pursue any of the programming Ms. De Celis wants him to take.
[138] This is relevant to two things. First, in a scenario where the mother would not be at Rosalie Hall but might be having contact with the father, and in a scenario where the father too does not want to work cooperatively with Ms. De Celis, this exposes the child to a risk of harm.
[139] And second, the father also said that he did not want to have another child taken away. He wants to be able to have access with A. A.-V. But as it relates to his access, without additional engagement with the Society and some effort by him to engage in programming, I have no confidence that any unsupervised access can be safe access.
[140] At the conclusion of the motion, the father indicated he is now prepared to consent to the terms and he will work with Ms. De Celis to get the programming going. That remains to be seen. Given his position, there needs to be some minor modifications to the proposed wording in the Amended Notice of Motion concerning the terms relating to the father, and to his access.
PART VI: ORDER
[141] Based on the above, I make the following orders:
(a) The child, A. A.-V., shall be placed in the temporary care and custody of the mother, on the terms and conditions ordered at the end of the motion, on consent, on June 18, 2020;
(b) In addition, as a term of this temporary placement, the mother shall reside with the child at Rosalie Hall Maternity Home, or another maternity home for new mothers that provides daily support to new mothers, and she shall cooperate with the rules and recommendations of the home;
(c) If the mother refuses to move to Rosalie Hall or a substitute maternity home contemplated in (b) above, then A. A.-V. shall be placed in the temporary care and custody of the Catholic Children's Aid Society;
(d) Should that occur, then the matter shall return before me to address the mother's access;
(e) The father shall have access in the discretion of the Society;
(f) In order for the father's access to progress, the father needs to take additional steps. Therefore, if he is willing to engage in the programming that is referred to in paragraphs 1(i.) to (k.) of the Amended Notice of Motion, then he is to let Ms. De Celis know (or such other Society worker as the case may be), and Ms. De Celis (or such other worker) shall take steps to assist the father with referrals and to enrol in such programs;
(g) In addition, the father is ordered to otherwise work cooperatively with the Society, and he shall meet with Society workers as requested; and
(h) The Settlement Conference, now scheduled for July 9, 2020 relating to J. A.-V. shall be vacated. The trial coordinator shall set a date for both matters to return before me, for a conference.
Released: June 19, 2020
Signed: Justice Alex Finlayson
[1] What was struck was of no consequence to the evidentiary record and the outcome of this motion.