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: November 12, 2020

Court File No.: FO-20-00000113-0000

Ontario Court of Justice

In the Matter of The Child and Family Services Act, R.S.O. 1990, c. C.11

And In the Matter of M.B-A., J.P. and M.P., children apparently in need of protection

Brant Family and Children's Services (operated by The Children's Aid Society in the County of Brant) Applicant

- and -

L.B-A. Respondent

- and -

J.P. Respondent

- and -

T.B. Respondent

Reasons for Judgment

Before the Honourable Justice K.A. Baker

on November 12, 2020 at Brantford, Ontario

Appearances by Teleconference

• E. Capitano – Counsel for the Applicant
• D. Boyse – Worker for the Applicant Society
• E. Van Looyen – Counsel for Respondent Mother
• L.B-A. – Attending
• K. Junger – Counsel for Respondent Father
• J.P. – Attending
• V. Ringuette – Counsel for the Office of the Children's Lawyer

Judgment

BAKER, J. (Orally):

This matter was adjourned to today's date for judgment on the temporary care hearing.

This is my judgment on the temporary care hearing in relation to the children, M.B-A., born […], 2009, and now age 11 years; J.P., born […], 2011, and now age nine years; and M.P., born […], 2012, and now aged eight years.

Positions of the Parties

The Society and the father of the two younger children, Mr. J.P., seek an order that the two younger children remain in the care of Mr. P. subject to the supervision of the Society.

The Society seeks an order that the child M. remain in its care. In that event M. would continue to stay with the maternal grandmother as a kin-in-care placement.

Mr. P. takes no position with respect to the older child M. The father of M. is T.B. He has yet to be served, and accordingly did not participate in this hearing.

The mother of the children, L.B-A. seeks the return of all three children to her care, subject to the supervision of the Society.

The OCL indicates that all three children have expressed a clear view and preference to return to the primary care of the mother.

Legal Framework

The legislation requires that the child be returned to the person who had charge of the child immediately prior to the intervention unless the Society can prove two things on a balance of probabilities. First, the Society must demonstrate that there is a reasonable basis to believe that it's more probable than not that the child, that if the child was returned to the person having charge, the child would likely suffer actual harm. Second, the Society must show that a supervision order could not adequately mitigate the concerns so the child could be returned.

Preliminary Issue: Who Had "Charge"

In this case a preliminary issue arose as to which parent actually had "charge" of the two younger children immediately prior to the intervention. There is no question that mother had charge of the older child, M. The Society says both parents had charge; the mother says she had charge; the father says he had charge.

The parties share joint custody of the two younger children pursuant to a final order issued in a Children's Law Reform Act proceeding. Those children's primary residence has historically been that of the mother. The father's access is set out as alternate weekends, one day during the week, and some shared holiday time.

The children attend school in Brantford where mother resides.

In mid-July 2020 Mr. P. became concerned about the situation in the mother's home. He thus attended at the mother's home and removed his sons. Those children remained with their father until August 8th and August 11th, 2020 respectively. On those dates the mother, with the assistance of police, retrieved the children and resumed their day-to-day care.

The children were removed by the Society to a place of safety on August 19th, 2020 from their mother's residence.

Definition of "Charge"

The Child Youth and Family Services Act does not define the term "charge". The jurisprudence has however provided guidance in this regard. Certain points arise clearly from those cases.

First, charge has the connotation of authority and responsibility for a child. Charge of a child suggests some established relationship, not something transparent or temporary. There must be evidence of active care and responsibility for the child. Mere possession is not sufficient to establish charge.

It is also possible for more than one person to have charge of a child. Charge is not synonymous with custody. In Children's Aid Society of Ottawa v. H.C. and C.C., however, Blishen, J. found that charge was linked to the term care and custody within the meaning of section 51 of the then applicable legislation, being the Child and Family Services Act. The court went on to say that questioning who has charge of a child is akin to questioning who had care and custody.

Application to This Case

Here, the parents maintained joint custody of these two children. That means that they shared the right and responsibility to make any important decisions for the children. Father maintained active involvement in the children's lives. He exercised access. He had those two children in his day-to-day care for a three week period, up until just days before the intervention.

It's true that the children's primary residence was, until that particular timeframe, that of the mother. The father was clearly an active and involved parent. I'm satisfied that he too had active responsibility and provided active care for the two younger children.

In coming to this conclusion I appreciate the father has not historically assumed as much of the care of the children as the mother had done. I am not convinced however that the determination of which parent had "charge" rests upon a simple quantification of the amount of time the child spends with each parent. It seems to me, to be sufficient, if a parent, in some meaningful way, has the care and responsibility of the child.

Mr. P. has indeed had care and responsibility for these two children. I am therefore satisfied that the mother and Mr. P. share charge of the children, M.A. and J.A.

Factual Background

The Society commenced the most recent involvement with the mother in July of this year after receipt of a call from G.L., the maternal grandmother of the oldest child. Ms. L. was expressing concern that M. was being left to care for her younger siblings for long periods of time when mother was away from the home. She went on to say that the mother had a drug dealer living in the home and the mother was purchasing drugs from this person. She also alleged that M. had complained about the number of people coming and going from the home.

The assigned Society worker, Karen Kehoe, was able to meet with the mother on July 23rd, 2020.

Mother denied illegal drug use. She acknowledged prescription drug use of Percocet which she said was used to address injuries from a recent motor vehicle accident.

Mother denied the suggestion that there were people frequently coming and going from the home, and she specifically denied that anyone other than herself and the children resided in the home.

The Serious Incident

Later that same day the Society learned the police had stopped a motor vehicle that contained the child M. In that vehicle, near to where M. was sitting, illegal drugs and weapons were found. The quantity of drugs was such that the two adults in the vehicle were criminally charged with possession for the purpose of trafficking.

The after-hours worker who received this information then picked up M., and, perhaps surprisingly, returned her to her mother's home. The mother apparently advised the worker that, "these people" apparently referring to the two criminally charged adults who'd been transporting M., would no longer be residing with her.

Continued Investigation

The assigned worker, Ms. Kehoe made an appointment a few days later on July 27th, to meet with the mother. The mother cancelled it without explanation. On the same day the maternal grandmother called to advise that M. was staying with her. Ms. Kehoe, quite reasonably, then called the mother to seek her permission to speak with M. at the grandmother's home. To say the mother was unreceptive would be something of an understatement. Ms. Kehoe said the mother was argumentative and advised that she didn't see a reason for Ms. Kehoe to speak with M. as M. had already spoken with the police. When Ms. Kehoe tried to explain that it was her obligation to interview M., the mother announced that she did not want Ms. Kehoe speaking with any of the children.

Although the mother acknowledged the seriousness of the event with M., she was not prepared to cooperate in any way with the Society's investigation.

Interviews with the Children

M. was, later, privately interviewed, at her grandmother's home. She described being in the vehicle with A. and D., saying there were bags of white powder that were in the backseat where she sat, as well as a gun in the car.

M. also spoke of her mother taking her to the home of a man named M. M. said she didn't know this man. M. also spoke of the number of people coming and going from her mother's home. She said that those people make her uncomfortable. M. also confirmed that she babysits her brothers a lot, including during overnights. J.A. at times goes out for hours, and M. does not know where he would go during those times.

Ms. Kehoe also went to Mr. P.'s home to interview the younger children.

M.A. said his sister babysits them "all the time". J.A. said his sister babysits during the day and night time. Both children said that A. and D. had been living in their mother's home for about a month. Both children also commented on the various people coming and going from the home.

Police Involvement

In the meantime, the mother had secured the return of the two younger children to her care. As a result of concerns about what was happening Mr. P. asked police to check on J.A., who by that point was back with his mother.

As the officer arrived at the home he observed an unknown male to "immediately" leave the residence. Some other unknown individual came out of the home to harangue the officer and show her a custody order. It apparently took several minutes to get the mother to come to the door.

Refusal to Cooperate

In her efforts to complete the investigation Ms. Kehoe had left a business card for the mother. On August 12th, 2020 the mother confirmed through voicemail that she had received the card. Ms. Kehoe was able to speak by telephone with the mother the next day, and she requested a time to speak with the children. Mother responded that perhaps in the future the worker would be permitted to speak with the children, but not now. That refusal finally precipitated the Society's removal of the children from the mother's care.

Further Interviews

During a later interview J.A. talked about his mother often leaving the home, and he and his brother being left with their sister, or sometimes a person named L., who'd begun to live in the home. J.A. said that at one point, in early to mid-August, his mother had gone out at nighttime and not returned until the afternoon the next day.

Both of the younger children also spoke of M., and said he was dating their mother. They said when M. has friends over, it's "uh-oh", and they are not allowed to go around them. They also talked about mom's friends, L.U. and S. J.A., especially, talked about his fear for the mother, and said that she was doing something "dangerous" without elaborating.

Mother's Response to Allegations

The mother denies that she uses illegal drugs. In response to these allegations she has attended at St. Leonard's for drug assessment. That assessment indicates that no referral for substance use evaluation was recommended. Mother has also obtained a urine screen which was said to be clear for all substances but her prescription medication.

Mother is currently under treatment for generalized anxiety disorder, panic disorder, and various other mental health conditions. Her psychiatrist, Dr. Book, has provided a letter which indicates that the mother is compliant with treatment, and clinically stable as of the last visit. The letter goes on to opine that there is "no reason to suggest that Ms. B. is unable to successfully parent her children".

The mother seems to be of the view that Mr. P. is manipulating the two younger children to have them lie about conditions in mother's home. As to A. and D., mother says that A.G. was someone who "crashed a few times" at mother's home. The mother categorically denies that this person "resided" in the home. She goes on to say, "I let her stay with me after she asked me, never leaving A. or her boyfriend D.H. alone with my children". The mother acknowledges that she's been friends with "people I should not have been friends with", and that that was "bad judgment".

Mother then goes on to make a number of complaints about Mr. P.'s treatment of the boys, including accusing him of utilizing corporal punishment.

Information About Babysitter

The child J.A. indicated that L. had been providing babysitting services for the mother prior to the intervention. This is acknowledged by the mother in her affidavit. Mother then goes on to speak of this person, that is, L.B., saying that she was the former partner of one J.J. She says Mr. J. was stalking both Ms. B. and herself, and he had made threats to them. The mother then goes on to say that she and Ms. B. are no longer on good terms because the mother has viewed a video in which Ms. B. was using drugs, "allegedly" in mother's basement.

Father's Affidavit

Mr. P. has filed an affidavit in which he sets out his care of the children J.A. and M.A. since they have been placed with him. He denies having any discussion with the children about court proceedings, or custody and access issues more generally. He also says that the children have said that A. and D. resided in mother's home beginning in 2019.

Supervised Visits

After the children were removed from the home the Society set up a visit for mother to be supervised by A.'s, by mother's friend A.T. The Society later learned that in fact Ms. T. had not supervised the visit because she remained outside of the home the entire time whilst the mother and children were inside the residence. Also inside the residence? Mother's boyfriend M.

It was also learned that at an earlier visit mother had brought along L.B. and her son.

Analysis and Findings

First Stage: Risk of Harm

Is there a reasonable basis upon which to believe that the children are more likely than not to suffer harm if they are to be returned to the care of the mother?

The precipitating event for the intervention was very, very serious. There is a very real potential that that night could have ended in catastrophe. This was a situation of a 10-year-old girl in a car, with significant quantities of serious drugs, and a firearm. How M. came to be driving around in a car with drugs and a firearm is something of a mystery. Mother hasn't really offered an explanation. She says she never left her children alone with A. or D. So how on earth did M. wind up there? Mom isn't going to say, though she surely must know. Not that it would be any less serious if mother does not know. If mother is so neglectful that her daughter winds up being transported along, for what appears for all the world to be some kind of mobile armed drug delivery, then that's equally concerning.

The fact that M. wound up in this situation is powerful corroboration of the suggestion that mother leaves these children without supervision, on a regular basis, for lengthy periods of time.

Frankly, I'm shocked the Society would have returned the child to the mother after finding her in these circumstances. One would think that some hard questions would have had to have been answered before the child went back to mother's house.

I'm also surprised that these children were allowed to remain in mother's care as long as they were after they returned from the maternal grandmother and father respectively. One would have thought that at the very least, once mother had declined to let the worker attend the home or speak with the children on August 13th, 2020, the children would have been immediately removed.

Credibility Issues

Mother's dissembling on the precise term to be applied to A. and D.'s presence in the home, and access to the children, does not assist her. Mother may call it what she will, these people were "crashing" or "staying" or "not residing permanently". Mother goes to great lengths to use any word other than residing, although interestingly, when the covering worker returned M. to her care, mother said these people would "no longer be residing with her". In responding to that evidence mother again equivocates saying the duo did not reside with her "permanently".

It seems far more likely than not that these two apparent drug traffickers were staying in the home, residing in the home, for much longer than mother will admit. Mother says she didn't know that they were involved in the drug world. That is hard to accept. If these people were residing, staying, crashing, occupying the home, mother logically would have had some indication that something nefarious was going on.

And again, if mother was oblivious that doesn't assist her much. How frequently would mother have to be absent from the home, and what would have to be her conditioning when she was in the home, that she would not notice that her co-residents were undertaking a drug operation based in her home.

Risk Assessment

Criminal drug enterprises are fraught with danger. The risk to children living in the home with people engaged in such activities is enormous. And this seems to have been no one-off; mom's good friend and regular babysitter, L.B., is, according to mom, using drugs in mom's basement.

Mother's substance abuse screening and her negative drug tests are of little help. First, the drug screen from St. Leonard's relies on self-report. It's quite evident that mother lies when it suits her purposes. The proof of that is the very same day the child M. was in the car with drug traffickers that were living in mother's home, mother lied to the Society worker saying no one lived with her. She would have known she was misleading the worker, and giving her confounding information. She does not seem to have cared. If it got rid of the worker, so be it.

And as for the urine screen, this was not random. Mother arranged it, could plan for it. There is no evidence as to the reliability of such a screen, or even what timeframe it would cover.

In any case, even if I accept that mother is not currently using drugs, there is still an enormous risk to the children because of their proximity to the drug culture, and drug trade, whilst they were living with mother, and also because of mother's bad judgment.

Expert Opinion

I place no weight whatsoever on Dr. Book's opinion that, "there is no reason to suggest that Ms. B. is unable to successfully parent her children".

Dr. Book is a psychiatrist. There is no evidence that he's qualified to render an opinion on parenting ability. Indeed in his letter of September 8th, 2020 Dr. Book acknowledges that he has not completed any parenting assessment of Ms. B. The most Dr. Book would seem qualified to say is that mother does not have any psychiatric condition that would impact or impair her parenting abilities. But this opinion is far more sweeping, and is clearly outside of his expertise.

One is also left to wonder whether Dr. Book was aware of the circumstances on July 27th, 2020 when he offered this opinion.

Judgment Issues

It's quite clear on the totality of the evidence that mother has serious judgment issues that have impacted her ability to parent safely. She has taken her 10-year-old daughter to stay overnight at the home of a male, M., that the daughter barely knows. Strange things seem to be happening at M.'s house, including the arrival of strangers. M. has described what appears to be a motley parade of individuals coming in and out of mother's home. Given two of the residents seemed to have been operating a drug business, that seems likely.

Either mother knew what was going on and exercised incredibly poor judgment in permitting a parade of disreputable individuals into her home, or mother was oblivious to the situation. If the latter, then there is serious concerns about mother's absence from the home while the children are in it, or her mental acuity when she is in the home.

I find the evidence is overwhelming that the children would be more likely to suffer harm if returned to the care of the mother.

Assessment of the Father

The same is not true of the father of the two younger children. I do not accept mother's allegations against the father. Mother's willingness to allow the father to care for these children for three weeks in August of 2020, is irreconcilable with genuine concerns of the nature that mother alleges.

The Society is satisfied that the father is well able to care for the two children, and they seem to be doing well with him, although they would prefer to return to their former home with mother.

If I am correct that the parents shared charge of the child, children, prior to the intervention, then this determination alone would support continued placement of the children J.A. and M.A. with the father.

However, for reasons which I will elaborate, I find that even if the mother had sole charge of the children prior to the intervention, the children cannot be returned to her care.

Second Stage: Adequacy of Supervision Order

Turning now to the second stage of the test, Could a supervision order sufficiently mitigate the risk should they be returned to mother's care?

The risk, as I've said, is extremely high. The central concern in the case is mother's poor judgment which led the children to be exposed to an acceptable risk. It is difficult for a supervision order to mitigate issues of serious judgment problems. Society workers can't be watching to intervene on bad judgment calls 24 hours a day, seven days a week.

The ability of supervision orders to mitigate concerns is directly related to two things. One is a parent's willingness to abide by the terms of the order and to cooperate with the Society. The second is the parent's willingness to be truthful and honest in their dealings with the supervising agency.

Mother has demonstrated a willingness to provide false and misleading information to the worker. This does not bode well on her willingness to be forthcoming about what is actually occurring in her home. The mother does not seem to be willing to acknowledge just how problematic her decisions have been. This doesn't bode well for her ability to make different and better choices, at least in the short term future.

Finally, in the days preceding the removal of the children the mother actively frustrated the Society's efforts to investigate what was going on. She didn't do this once. She embarked on a concerted effort, over several days, to deny the worker access to her home, and to prevent any communication with the children.

Mother doesn't seem to accept responsibility for those decisions.

I am therefore satisfied that a supervision order with the children in mother's care could not adequately mitigate the concerns.

Assessment of Father with Supervision

The same is not true of Mr. P. in relation to the two younger children.

Mr. P. has in fact cooperated with the Society workers and made the children and available for meetings with the workers, as requested.

Order

For oral reasons given, order to go, the order of August 24th, 2020 placing the child M. in the care of the Society and placing the two younger children with their father subject to supervision, shall be made temporary.

Next Steps

THE COURT: What would you like to do with the proceeding from here, Ms. Capitano?

MS. CAPITANO: I am going to suggest a settlement conference.

THE COURT: Okay. Ms. Van Looyen, does that make sense to you?

MS. VAN LOOYEN: Yes, Your Honour, that makes sense.

THE COURT: Okay. Any disagreement? Okay. Date for settlement conference, please?

CLERK/REGISTRAR: Thank you, Your Honour. How far out would you like? We do still have that December 14th available, or we'd have to go into the New Year after that. I'm not sure if December 14th is too soon.

THE COURT: Right. Ms. Capitano, what do you think? Too soon?

MS. CAPITANO: I'm thinking that's too soon. I think that things have to sort of settle out and sort out, and service gets started, so I'm thinking more into the New Year, if that's agreeable to my friends.

THE COURT: Okay, and did you want this in person or by video conference?

MS. CAPITANO: My preference would be video conference but I, I will leave—I'm also in my friends' hands if they have a preference.

THE COURT: All right, let's get the date first.

CLERK/REGISTRAR: Yes, of course, Your Honour. We have February 9th at 12:00 p.m. noon available for settlement conference.

THE COURT: How's that?

MS. CAPITANO: I just want to make sure it's all right with Ms. Boyse, if she could unmute herself and let me know.

MS. BOYSE: That day is fine with me, thank you.

MS. JUNGER: Actually, I'm, I'm sorry. Is there any way you have towards the end of February? At the moment I'm scheduled to have a lengthy trial in Simcoe, although there is some likelihood that it may settle, but perhaps I could accommodate this date too, which, what, whatever everyone thinks.

CLERK/REGISTRAR: Yes....

THE COURT: Okay. Well what would be the next date available?

CLERK/REGISTRAR: Yes, Ms. Junger, toward the end of February we have February 26th at 12:00 noon available.

MS. JUNGER: Sorry, Ms. Capitano got—sorry.

MS. CAPITANO: I, I can hear you.

MS. JUNGER: I was going....

MS. CAPITANO: I can hear you.

MS. JUNGER: Okay.

MS. CAPITANO: I think Ms. Van Looyen will be on maternity....

THE COURT: Ms. Capitano is cutting out.

MS. CAPITANO: Okay.

MS. BOYSE: Why don't you just speak through the phone, through my phone, Ms. Capitano?

MS. CAPITANO: Yes. I think Ms. Van Looyen may be on maternity leave at that time.

MS. VAN LOOYEN: Yes, Your Honour, that's correct. I'm hoping to try and book earlier in February if that's possible, just so I don't leave others in the office with....

THE COURT: Okay.

MS. JUNGER: We can take the earlier date then, and we, we'll figure it out. I'll just have to figure it out.

THE COURT: All right, thank you. What was the time again on February 9th, please?

CLERK/REGISTRAR: Yes, of course, Your Honour. It was February 9th at 12:00 noon.

MS. VAN LOOYEN: Thank you.

THE COURT: So I've added to the endorsement, scheduled for settlement conference on February 9th, 2021 at noon, by video conference. Estimated one hour. Parties to serve and file briefs and confirmations as per Family Law Rules. Anything else?

MS. CAPITANO: No, I believe that's it for the Society.

Costs

MS. JUNGER: Your Honour, my client would like the opportunity to argue costs because, well, for various reasons, but the mother, this wasn't an order in my view that the mother could have consented to to avoid my client having to be put to the cost of filing all these materials. I'm not sure how you might wish to address that. Or we could reserve the issue of costs. However you wish.

THE COURT: I'd be open to written submissions, or I can reserve it. What would you prefer?

MS. JUNGER: I, I think written submissions, please.

THE COURT: Okay. Anyone seeking costs may file written submissions by November 20th, 2020; response by November 27th, 2020. I'm not going to impose page limits but please try and be succinct because staff are dealing with a huge volume of materials right now.

MS. JUNGER: Yes. Your Honour, would it be possible to get a copy of your endorsement?

THE COURT: Yes, Madam Registrar, can you be kind enough to email that to the parties.

CLERK/REGISTRAR: Yes, of course.

THE COURT: And if the email address is not shown on the style of cause perhaps you should put that into the chat. Would that work?

CLERK/REGISTRAR: Yes, that's what I was just going to direct her to do. If you could just, Ms. Junger, I don't have your email address. And anyone else that would like a copy of the endorsement, can you please enter your email address just into the Zoom chat there, at the bottom.

THE COURT: Okay. So, Madam Registrar, I think that concludes our list for today.

CLERK/REGISTRAR: It does.

THE COURT: So you can close court but keep the Zoom open to get the information you need.

CLERK/REGISTRAR: Of course.

WHEREUPON THESE PROCEEDINGS WERE ADJOURNED

Released: November 12, 2020 Justice K.A. Baker