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

Date: September 8, 2020

Court File No.: Woodstock C48/20

Ontario Court of Justice

Parties

Between:

Children's Aid Society of Oxford County Applicant

— AND —

C.O. R.O. J.C. Respondents

Hearing Information

Before: Justice S. E. J. Paull

Temporary Care and Custody Motion heard: August 31, 2020

Reasons for Judgment released: September 8, 2020

Counsel

• Mary Ann Costea — counsel for the applicant
• Gary McQuaid — counsel for C.O.
• Sandra Carnegie — counsel for R.O.
• James H. Rayner — counsel for J.C.
• Susan Gordon — Office of the Children's Lawyer

PAULL J.:

The Children and Parties

[1] The children who are the subject of the protection application before the court are N.O. born […], 2008 (female), Ry.O. born […], 2009 (male), and A.O. born […], 2011 (female). The respondent C.O. is the children's mother, R.O. their father, and J.C. is the mother's partner and the children's stepfather.

The Motion

[2] The Society has brought a motion seeking an order that the children be placed in the temporary care and custody of their father, with access to their mother and stepfather being at the discretion of the Society.

[3] R.O. supports the Society's position. C.O. opposes the motion and wants the children returned to her care. J.C. is residing with a surety and not seeking access to the children. He consents to an order for no access. The children are represented by OCL counsel who supports the Society's position with respect to N.O. and Ry.O. and takes the position that A.O. could be returned to C.O. on strict terms of supervision.

Legal Test

[4] The legal test for me to apply on this motion is set out in subsections 94 (2), (4) and (5) of the Child, Youth and Family Services Act, 2017 (the Act) that read as follows:

94 (2) Where a hearing is adjourned, the court shall make a temporary order for care and custody providing that the child:

(a) remain in or be returned to the care and custody of the person who had charge of the child immediately before intervention under this Part;

(b) remain in or be returned to the care and custody of the person referred to in clause (a), subject to the Society's supervision and on such reasonable terms and conditions as the court considers appropriate;

(c) be placed in the care and custody of a person other than the person referred to in clause (a), with the consent of that other person, subject to the Society's supervision and on such reasonable terms and conditions as the court considers appropriate; or

(d) remain or be placed in the care and custody of the Society, but not be placed in a place of temporary detention, of open or of secure custody.

Criteria

(4) The court shall not make an order under clause (2) (c) or (d) 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).

Placement with relative, etc.

(5) Before making a temporary order for care and custody under clause (2) (d), the court shall consider whether it is in the child's best interests to make an order under clause (2) (c) to place the child in the care and custody of a person who is a relative of the child or a member of the child's extended family or community.

[5] The court has also taken into consideration the child's views and wishes, given due weight in accordance with the child's age and maturity pursuant to subsection 94 (11) of the Act.

Applicable Legal Principles

[6] At a temporary care and custody hearing, the onus is on the Society to establish, 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 respondents, it is more probable than not that he or she will suffer harm. Further, the onus is on the Society to establish that the child cannot be adequately protected by terms of conditions of an interim supervision order. Children's Aid Society of Ottawa-Carleton v. T., [2000] O.J. No. 2273 (Ont. Sup. Ct.). Simply stated, this is a two-part test that the Society must meet.

[7] A court must choose the order that is the least disruptive placement consistent with adequate protection of the child (subsection 1 (2) of the Act): Children's Aid Society of Hamilton v. B.D. and F.T.M., 2012 ONSC 2448.

[8] 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. CCAS of Toronto v. J.O.1, 2012 ONCJ 269.

[9] Subsection 94 (10) of the Act permits the court to admit and act on evidence that the court considers credible and trustworthy in the circumstance. In determining what evidence is credible and trustworthy, the evidence in its entirety must be viewed together. Evidence that may not be credible and trustworthy when viewed in isolation might reach that threshold when examined in the context of other evidence. See: Jewish Child and Family Services of Toronto v. A.K., 2014 ONCJ 227 at paragraph 18; CAS of the Regional Municipality of Waterloo v. S.S.H., 2019 ONSC 5365.

[10] 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.

[11] The Act gives priority to the person who had charge of the children prior to Society intervention under Part III of the Act (subsection 51 (2) of the Act). There can be more than one person in charge of the children. See: Children's Aid Society of Toronto v. A.(S.) and R. (M.), 2008 ONCJ 348.

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

[13] Subsection 94 (6) applies to an order being made in accordance with clause 94 (2) (b) for a temporary supervision order. Catholic Children's Aid Society of Hamilton v. P. (C.R.), 2011 ONSC 2056.

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

[15] Subsection 94 (8) of the Act provides that where an order is made under clause (c) or (d) of subsection 94 (2), the court may order access on any terms that it considers appropriate. 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.

Evidence Considered

[16] In addition to the submissions of counsel I have reviewed and considered the affidavits of the Society workers Margaret Olson sworn June 30, 2020, Candace Bonduro sworn June 30 and July 28, 2020, and Nancy Wilson sworn July 28, 2020. I have also reviewed and considered the affidavits of C.O. sworn August 10, 2020, R.O. sworn August 18, 2020, and J.C. sworn August 17, 2020.

Uncontested Evidence

[17] The following evidence is either acknowledged or uncontested by the respondents.

[18] Prior to the recent involvement of the Society, C.O. had primary care of the children, was residing with J.C., and the children had regular access with R.O.

[19] There has been historical involvement with the parents as a couple dating back to 2010, mostly due to domestic conflict between them. There were numerous investigations by the Society from 2010 to 2019, and apart from a risk that the paternal grandmother posed to the children, it does not appear that any concerns were verified.

[20] On June 28, 2020 the children were removed from the care of their mother and placed with their father. Following a protection application being commenced on June 30, 2020, on July 2, 2020 a temporary without prejudice order was made placing the children with their father subject to terms of supervision with access to their mother.

The Protection Concerns

[21] The Society alleges that the main protection concerns relate to the risk that J.C. poses to the children given his history including sexual offences against female daughters of his partners, and C.O.'s inability to protect the children.

J.C.'s Criminal History and Background

[22] J.C. has been involved with numerous agencies due to concerns regarding physical discipline of children, domestic violence towards his partners and sexual abuse of children. The CAS has a lengthy history with him which he did not dispute.

[23] In May 2005 J.C. was charged with assaulting his then partner.

[24] In or about May 2011 J.C. was charged with invitation to sexual touching and luring a child regarding the minor daughter of a woman he was dating. He was convicted of luring a child and was incarcerated and placed on two years probation with terms not to have unsupervised contact with any child under 16, including his own children.

[25] In June 2011 J.C.'s 13-year-old stepdaughter disclosed that she had been sexually abused by him. He was charged with numerous criminal offences and at trial he was acquitted of all the charges.

[26] In June 2013 the Society became reinvolved as it was reported that J.C. was involved in another relationship with a woman who had a four-year-old daughter from a prior relationship, and a new baby with J.C., despite his conditions not to have unsupervised contact with children under 16. The Society directed that he continue to have no unsupervised contact with children under 16 and verified the concerns a risk of sexual harm to the children. In 2015, the Society verified that J.C. was left in a caregiving role of his partner's daughter despite the Society's direction. The Society's file remained open from 2013 to 2016 to monitor J.C.'s contact with his children.

[27] J.C. completed a risk assessment which rated him at a low/moderate risk of reoffending, however, there were concerns with his lack of full disclosure. CAS was also of the view that he minimized the concerns and his history of offending behaviour.

[28] C.O. acknowledged that she and J.C. began residing together in February 2019 that she was made aware of his history. She was cautioned by both the police and the CAS that he was not to be left unsupervised with her children.

The June 22, 2020 Incident and Disclosures

[29] The current court proceeding resulted from disclosures N.O. made regarding J.C. On June 22, 2020 the OPP contacted the Society and advised that it was investigating allegations that J.C. had been sexually inappropriate with N.O.

[30] During police interviews N.O. disclosed that J.C. had come into her room on the evening of June 22, 2020 with a red dildo sex toy telling N.O. that she needed it and told her not to tell anyone he offered it to her. N.O. was able to draw a picture of it and describe its colour. C.O. acknowledged to police that she owned a red dildo sex toy, and that she had left J.C. alone with the children for a short time that evening. N.O. stated that before the police arrived at the home, J.C. asked if she had told anyone what happened and asked her to lie if anyone asks her. N.O. denied that J.C. touched her but stated that she did not feel safe at her mother's home.

[31] During the police investigation C.O. repeatedly stated that N.O. was lying and asked the police to look into N.O.'s history of lying. When asked by the police to bring in her sex toy which resembled the one described by N.O., C.O. refused stating that she did not want to incriminate J.C., and because she did not believe the allegations "not even for a second".

[32] J.C. was charged with invitation to sexual touching and is under criminal release terms that have him residing outside the home with a surety.

C.O.'s Response to the Allegations

[33] C.O.'s consistent response following the disclosures was that N.O. was a liar and also that R.O. had coached N.O. to make up the allegations. She made this position known consistently and repeatedly to CAS workers, the police, and the children themselves including N.O. Her focus has been on blaming N.O. and R.O.

[34] C.O. continuously defended J.C. even though he has been charged with a sexual offence against her daughter and stated that she will not restrict him from her home or from having contact with her other children.

Other Children's Disclosures

[35] The children have made disclosures to the police and the CAS in addition to N.O.'s disclosures related to June 22, 2020. A.O. indicated that she did not like J.C. and that he was not nice and hurts the dog. She also stated that her mother had told her that N.O. was a liar.

[36] Ry.O. reported to the Society worker that he does not feel safe in his mother's home and raised concerns about his mother and stepfather doing drugs and that his stepfather called him rude names and threatened to slap him in the face. Ry.O. also stated that he was worried that J.C. would come over to the home if N.O. was not there as his mother said he could. He also expressed concern that his mother would harm herself because he overheard his mother say this if he and his siblings were placed with their father. C.O. stated to the worker in response to these allegations that Ry.O. was also a liar.

[37] N.O. disclosed that after the police attended at their home on June 22, 2020, that her mother told her she was lying and told her not to talk to anybody about it, and that she believed that R.O. was behind the allegations.

Placement with Father and Concerns Regarding R.O.

[38] Due to the risk of sexual harm posed by J.C. and C.O.'s inability to protect the children, they were removed to a place of safety and placed with R.O. on June 28, 2020. The Society worker identified no concerns with R.O.'s home.

[39] However, the Society worker's affidavit includes numerous allegations from C.O. that R.O. poses a risk of sexual harm to the children. Further on July 9, 2020 R.O. was also charged with one count of sexual assault of C.O. for an alleged incident dating back many years. As a result of R.O. also being a minor at the time the police would not release any particulars to the Society. C.O. chose to not address this or any of her allegations against R.O. in her affidavit, or dispute that she has refused to cooperate with the Society in its investigation of the historic allegation that gave rise to the criminal charge. There is no evidentiary basis to support that R.O. is a risk of harm to the children. I also note that C.O. consented to the liberal access he had prior to the Society's current involvement.

Analysis and Findings

[40] OCL counsel reports that N.O. and Ry.O. expressed the strong wish to remain with their father and report no concerns there. They also want alternate weekend access with their mother and that it be supervised because of concerns they have with J.C. They also do not want any contact with J.C.

[41] OCL counsel reports that A.O. expresses the strong and consistent wish to return to the primary care of her mother and to see her father three times a week. Further, if she is not permitted to return to her mother's care, she wants more time with her mother, but does not want any contact with J.C.

[42] At this stage the Society need only demonstrate that it has reasonable grounds to believe that there is a potential risk that justifies intervention and does not go so far as requiring that it show on a balance of probabilities that there is an actual risk to the children in the parent's care.

[43] For the reasons that follow the Society has satisfied its burden on a balance of probabilities there are reasonable grounds to believe that it is more probable than not that the children are at risk of harm in the care of C.O. and J.C.

[44] Further, the Society has established that the children cannot be adequately protected by terms and conditions of an interim supervision order with them returned to the primary care of C.O., even with J.C. residing apart, and that a placement with R.O. is necessary and appropriate in the circumstances.

C.O.'s Parental Capacity

[45] C.O. has been the children's primary caregiver at least since separation and there have been no other recent concerns with respect to her care of them. She is of the view that now that J.C. was required to reside with his surety, and they are no longer residing together that there is no reason the children should not be immediately returned to her care.

[46] However, the issues around her relationship with J.C. and her reaction to the children's disclosures about him have illustrated extremely poor parental judgment and exposed the children to a risk of sexual and emotional harm.

[47] J.C. has a history of verified concerns, including a criminal conviction of sexually inappropriate behaviour towards the daughter of a former partner. On the basis of N.O.'s disclosures related to June 22, 2020 J.C. has once again been charged with a sexually related offence regarding a stepdaughter. Given his history he clearly poses a risk of sexual harm to the children, and all the children have reported to not feel safe in their mother's home with him. None of the children want any contact with him.

[48] C.O. has not acted protectively of the children as it relates to J.C. C.O. was aware of J.C.'s history including his criminal conviction for a sexual offence against a child and was cautioned by both the police and the CAS workers to not permit him to be left unsupervised with the children.

[49] Despite these cautions she left him unsupervised with the children on June 22, 2020 resulting in another sexually related charge against him. She did not follow the clear directions and showed extremely poor judgment in leaving him alone with the children on that date.

[50] Further, the concerns with her choices and actions have only been exacerbated by her behaviour since June 22, 2020. The children have disclosed that J.C. is mean to the family dog, calls them names and yells at them. The children did not feel safe in their mother's home as a result. However, C.O. continued to defend J.C., calling N.O. and Ry.O. liars. It is clear none of the children are emotionally supported in their mother's care.

[51] C.O. more recently indicated to the worker that maybe she was too quick to judge N.O. a liar, but also indicated that she is still not sure if she believes N.O. and that she believes R.O. coached N.O. to make up stories. In her affidavit C.O. responded to all these concerns by acknowledging that it was a mistake to leave the children with J.C. on June 22, 2020 and stated further that:

"22. I acknowledge that I did not initially believe N.O. in regards to what she has stated about in regards to J.C.

23. I realize my view in the regard were a mistake [sic]".

[52] It is a further concern to this court that neither C.O. nor J.C. were clear in their affidavits about their current relationship. While the terms of J.C.'s criminal release require that he reside with a surety, there was a conspicuous absence in both of their affidavits of a clear indication of the status of their relationship.

[53] In the context of all the uncontested evidence of the Society, C.O.'s responses in her affidavit are insufficient to support that she has truly changed her view or recognized that her relationship with J.C. posed a risk to the children and that she has not been supportive of her children. In the circumstances the court does not have confidence that her relationship with J.C. is in fact over, as was suggested in submissions.

[54] C.O. also noted that R.O. had never raised any concerns about J.C., however, it appears she did not make him aware of his history and the cautions that were provided by both the police and the CAS when he moved in with her and the children. Not disclosing this to R.O. is another example of a lapse in parental judgment on her part in not prioritizing the children's interests over her own relationship with J.C.

Children's Views and Wishes

[55] The court has also taken into consideration the children's views and wishes, given due weight in accordance with the children's age and maturity pursuant to section 94(11) of the Act. Ms. Gordon reports that N.O. and Ry.O. want to stay at their father's home with supervised access on the weekends with their mother. A.O. adamantly wants to return to her mother's home and visit her father.

[56] In the circumstances of their ages N.O. and Ry.O.'s views on residing with their father and maintaining supervision at access should be given significant weight. With respect to A.O., who is nine, her views must be considered in context of the risk that the court has found that exists while the children are in the care of their mother.

[57] At nine years old, she cannot be expected to understand the dynamics of the situation and the nature of the protection concerns. Not only is she at risk of sexual harm from J.C., she is at risk of emotional harm as a result of how her mother has responded to the concerns about him. A.O.'s behaviour has been a significant challenge at her father's home at times, however, this has improved over time as she has settled in.

[58] While views and preferences are important, the court should not allow the wishes of a child to be the sole basis for judgment while disregarding other evidence of what may be in their best interests. Ultimately the weight attached to any expression of preference depends on the particular circumstances and the degree of risk. In this case the degree of risk must outweigh A.O.'s wishes at this time.

Least Disruptive Alternative

[59] The evidence when viewed in its entirety is compelling that the children are at risk of harm in their mother's care even if J.C. is not present, and in the circumstances the least restrictive alternative consistent with their adequate protection is a temporary order placing them in their father's care subject to terms of supervision.

Access Arrangements

[60] With respect to access the Society has approved the maternal grandmother and aunt to supervise C.O.'s access which is scheduled for three times a week. There have been some concerns that Ry.O. has disclosed that both his mother and grandmother have yelled at R.O. during exchanges, recorded him, and made negative comments about him. More recently the aunt who supervises the visits indicated the visits were going well, and that C.O. was able to redirect the children when they spoke about their father. However, the children have reported that their mother still talks negatively about their father and about court even when their aunt tries to redirect her.

[61] For these reasons the Society is not currently supporting unsupervised access. I agree that C.O.'s continuing behaviour following the disclosures of the children makes supervised access necessary at this time. On the evidence before the court I am not confident that she will now prioritize the children's needs over defending J.C. and blaming them and R.O.

[62] Hopefully within a short period of time C.O. can establish that she is truly able to prioritize the children's needs, so that access can be expanded and no longer require supervision.

Order

[63] On the basis of all these considerations there shall be an interim order pursuant to the notice of motion paragraphs 4 (a-l), and (n), except that terms (b-j) shall remove reference to J.C. since he is not seeking access. C.O.'s access shall be at the discretion of the Society as outlined in paragraph 5, and there shall be a further order that J.C. have no access to the children.

Released: September 8, 2020

Signed: "Justice S. E. J. Paull"