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.

(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.

(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.

CITATION: Children’s Aid Society of Toronto v. S.D., 2021 ONCJ 414

DATE: August 5, 2021

COURT FILE NO. C41586/21

ONTARIO COURT OF JUSTICE

B E T W E E N:

CHILDREN’S Aid SOCIETY OF TORONTO

SIMON FISCH, for the APPLICANT

APPLICANT

• and -

S.D., J.W. AND M.C.

S.D., ACTING IN PESON

J.W. and M.C., NOT ATTENDING

RESPONDENTS

HEARD: August 4, 2021

JUSTICE S.B. SHERR

ENDORSEMENT

Part One - Introduction

[1] The society has brought a motion within its protection application seeking to place the subject children, A. C.-D., age 4, and J.W. Jr., age 1 (the children), in its temporary care and custody with access to the respondent S.D. (the mother) in its discretion with regard to duration, frequency, level of supervision and location, a minimum of two times each week.

[2] The mother asks for a temporary order placing the children in her care and custody.

[3] M.C., the father of A.C.-D., did not attend at court or file any material. His whereabouts are unknown.

[4] J.W., the father of J.W. Jr., also did not attend at court or file any material. He is presently in jail.

[5] The mother declined the opportunity to speak to duty counsel before arguing this motion. She said that she wished to represent herself.

[6] The society relied on the affidavit of its worker Cassandra Cherniak sworn on July 27, 2021.

[7] The mother did not file a sworn affidavit for this motion. The court was mindful of its obligation to provide reasonable assistance to a self-represented litigant.[^1] The court permitted the mother to file her Answer/Plan of Care at the hearing. She was affirmed and was given the opportunity to orally provide her evidence without cross-examination by the society. She was able to affirm the contents of her Answer/Plan of Care as being true. The court considered all her evidence.

Part Two – Brief background facts

[8] The mother has always been the primary caregiver for the children.

[9] The children were first brought to a place of safety on July 13, 2021 and returned to the mother’s care by the society on July 16, 2021.

[10] The children were brought to a place of safety again on July 23, 2021.

[11] On July 28, 2021, Justice Melanie Sager made a temporary, without prejudice order, placing the children in the care of the society, with access by the mother to be in the discretion of the society, a minimum of twice each week. Justice Sager endorsed that the mother was completely unmanageable at this attendance – she was angry, yelling and would not respond to the court’s questions.

[12] The mother conducted herself in a civil and respectful manner at this court attendance.

[13] Despite being given the opportunity to visit the children, the mother has not done so since they came into society care.

Part Three – Legal considerations

[14] The legal test for the court 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.

[15] At this 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 the children are returned to the mother, it is more probable than not that they will suffer harm. Further, the onus is on the society to establish that the children cannot be adequately protected by terms of conditions of a temporary supervision order. See: 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 has to meet with respect to the mother.

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

[17] 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. See: CCAS of Toronto v. J.O.1, 2012 ONCJ 269.

[18] 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.

Part Four – First part of the two-part test

[19] The evidence overwhelmingly supported a finding under the first part of the two-part test that there are reasonable grounds to believe that there is a real possibility that if the children are returned to the mother, it is more probable than not that they will suffer harm.

[20] The mother was involuntarily admitted to the hospital on July 13, 2021 on a Form 1 pursuant to the Mental Health Act. It was reported to the society that the mother had attended at the hospital acting in a bizarre manner. She locked herself and the children in a bathroom because she feared that a man with a gun was trying to get her and the children. The mother was eventually sedated and kept in the psychiatric unit of the hospital.[^2]

[21] The mother remained in the hospital until July 16, 2021. At the hospital the mother told the society worker that there are devil worshipers that are following her. The mother’s psychiatrist advised the society that it was a psychosis situation, with a backdrop of trauma and grief over the death of her child.[^3] He believed that the psychosis was situational.

[22] The society worked with the mother and her family and the society agreed to return the children to the mother with a specific safety plan. The mother agreed that she would live with her mother and take the medication prescribed by her psychiatrist. Her sister and cousin agreed to check in on her regularly.

[23] The mother immediately breached this agreement. She left her mother’s home and refused to take the medication. She stopped cooperating with the society.

[24] No other members of the mother’s family were prepared to have the children live with them at this time.

[25] This evidence alone was sufficient to meet the first part of the two-part test.

[26] There was other evidence establishing the first part of the test including:

a) There are concerns with the development of the children. Both children are reported by the society’s infant nurse specialist as being seriously underweight and the foster mother reported that A. C.-D. babbles like a much younger child. There are concerns reported from that nurse that both children have developmental delays. The mother told the public health nurse that A.C.-D. had last seen a doctor about his height and weight before March 2020 and that the child J.W. Jr. had never seen a doctor for this.

At this hearing, the mother denied that either child had developmental delays and stated that the scale used to weigh the children was faulty.

Based on this information, the society has reasonable grounds to believe that the children’s needs are being neglected.

b) The mother has chosen not to see the children since July 23, 2021. The court agrees with the mother’s submission made at this hearing that it is emotionally harmful for them not to see her.

c) The mother demonstrated no insight into the protection concerns. She believes that everything is fine. This increases the risk to the children.

Part Five – The second part of the two-part test

[27] The society also met its onus under the second part of the two-part test. At this point, the evidence informs the court that supervision terms would be inadequate to protect the children.

[28] The mother is very hostile to society involvement. She is now requesting her fourth intake worker – at a very early stage of this case. She is refusing to engage with the society or attend for visits with the children.

[29] The mother had agreed to live with her mother and take medication. She changed her mind once the children were placed with her on July 16. At this hearing, she said that no one can force her to take medication.

[30] The court has no confidence, at this point, that the mother would comply with a supervision order. This puts the children at an unacceptable level of risk if they are placed in her care.

Part Six – Access

[31] It is in the best interests of the children to have access with the mother. On a temporary basis, given the apparently serious and untreated mental health issues of the mother, her access needs to be supervised by the society to ensure the emotional and physical safety of the children.

[32] The mother is not exercising the access offered to her. It is important for her and the children that she attend regularly for the visits.

[33] Given the fluid nature of this situation, the society needs the flexibility to change access as it evaluates the quality of the mother’s access, her presentation during access, her reliability and her plan to have the children returned to her care. The discretionary order sought by the society is in the temporary best interests of the children.

Part Seven – Representation

[34] It is really important for the mother to obtain a lawyer due to the serious consequences involved in having the children removed from her care. Child protection law is complicated and to give her the best chance to succeed the mother really needs a child protection lawyer to present her case. The mother’s material filed was unfocused.

[35] The mother has every right to represent herself, but if she chooses to do so, the society should give serious consideration to bringing a motion to appoint amicus to ensure that the court receives the necessary testing of the evidence to make the best decision for the children.

Part Eight – Roadmap moving forward

[36] The court recognizes that it is painful for the mother to have her children in society care. She has already suffered considerable pain in her life. She has a history of trauma that makes her lack of trust understandable.

[37] The court also observed how much the mother loves her children. She talked about wanting a good and safe future for them.

[38] The goal in this case should be to work towards safely returning the children to the mother. To do that, we need to give her the support she needs to succeed and she needs to accept that support.

[39] So, what steps should the mother take to succeed? Here is a list to start:

a) Start seeing the children.

b) Never miss an access visit.

c) Bring toys and appropriate food to the visits.

d) Focus on the children during the visit. Discuss any concerns about the case with society workers after the visits – never in front of the children.

e) See her psychiatrist and follow the psychiatrist’s recommendations.

f) Obtain a report from the psychiatrist about her progress.

g) Fully cooperate with the society. Attend all meetings. Sign consents required to allow the society workers to speak to her service providers. Treat the society workers with respect and answer their calls.

h) Permit the society workers to come and see her new home.

i) Attend any appointments with service providers for the children that are arranged by the society.

j) Speak to her family members and friends about developing a safety plan that would make the court comfortable with having the children leave the society’s care.

k) Obtain a child protection lawyer to guide her through this process and help her best present her case.

[40] The society also has steps to take including:

a) Conducting a developmental assessment of the children to determine their special needs, if any, and the steps that are required to address them.

b) Inviting the mother to the feedback session after obtaining the results of that assessment.

c) Assisting the mother with obtaining psychiatric help and other necessary services and staying in contact with her service providers to monitor her progress.

d) Attending at and assessing the mother’s new home.

e) Exploring retaining an independent agency to supervise the mother’s access, such as Milan and Associates. The mother may be able to work better with an agency that she views as more supportive.

f) Continuing to reach out to the mother’s family and friends to explore alternatives to the children being in society care.

g) Trying to engage the fathers of the children, or their families, to see if there are viable alternate plans.

Part Nine – Conclusion

[41] A temporary order will go on the following terms:

a) The children are placed in the temporary care and custody of the society pending further court order. This order is now with prejudice.

b) The mother’s access to the children shall be in the discretion of the society, with regard to duration, frequency, location and the level of supervision, a minimum of two times each week (provided that the mother chooses to exercise this access).

c) The fathers’ access shall be in the discretion of the society.

[42] The return date will be on September 21, 2021 at 12:15 p.m. for a case conference that will be scheduled for 45 minutes. It will be held by videoconference. Court staff shall send the links to the parties.

Released: August 5, 2021

_____________________ Justice S.B. Sherr

[^1]: The Statement of Principles on Self-represented Litigants and Accused Persons (2006) established by the Canadian Judicial Council was endorsed by the Supreme Court of Canada in Pintea v. Johns, 2017 SCC 23. These principles include the following: • Access to justice for self-represented persons requires all aspects of the court process to be, as much as possible, open, transparent, clearly defined, simple, convenient and accommodating. • Judges and court administrators should do whatever is possible to provide a fair and impartial process and prevent an unfair disadvantage to self-represented persons. • Self-represented persons should not be denied relief on the basis of a minor or easily rectified deficiency in their case. • Judges and court administrators have no obligation to assist a self-represented person who is disrespectful, frivolous, unreasonable, vexatious, abusive, or making no reasonable effort to prepare their own case. • Judges have a responsibility to inquire whether self-represented persons are aware of their procedural options, and to direct them to available information if they are not. Depending on the circumstances and nature of the case, judges may explain the relevant law in the case and its implications, before the self-represented person makes critical choices. • Judges should ensure that procedural and evidentiary rules are not used to unjustly hinder the legal interests of self-represented persons.

[^2]: The mother had another mental health episode shortly before this incident. On May 25, 2021, the police were called to the mother’s home by a neighbour who heard screaming and things being broken.

[^3]: This child was 2 years old when she died in 2014 while in the care of a babysitter.