WARNING
The court hearing this matter directs that the following notice should be attached to the file:
This is a case under Part V of the Child, Youth and Family Services Act, 2017, (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:
87.— (7) Order excluding media representatives or prohibiting publication. — Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding, the court may make an order,
( c ) prohibiting the publication of a report of the hearing or a specified part of the hearing.
(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.
DATE: November 26, 2021
COURT FILE NO. C41508/21
ONTARIO COURT OF JUSTICE
B E T W E E N:
CHILDREN’S AID SOCIETY OF TORONTO
SIMON FISCH, for the APPLICANT
APPLICANT
- and -
I.L. and S.M.
I.L., ACTING IN PESON ARTHUR C. BROWN for the RESPONDENT, S.M.
RESPONDENTS
HEARD: NOVEMBER 24, 2021
JUSTICE S.B. SHERR
ENDORSEMENT
Part One – Introduction
[1] This was the return of a temporary care and custody motion concerning the children, H. (age 5) and Z. (age 3) (the children).
[2] On May 11, 2021, Justice Mary A. Fraser of the Superior Court of Justice (Family Court) in Pembroke, Ontario made a temporary without prejudice order placing the children with the respondent S.M. (the father), subject to the supervision of the Children’s Aid Society of Toronto (the society). Justice Fraser ordered that the respondent I.L. (the mother) have access with the children in the discretion of the society and supervised in the discretion of the society, to include a minimum of two virtual visits per week and a minimum of one in-person visit per month. Justice Fraser also transferred the case to this court.
[3] The case is being case managed by Justice Carolyn Jones. On November 2, 2021, Justice Jones adjourned the case for a settlement conference to be heard on January 6, 2022. The mother subsequently brought a Form 14B motion seeking an earlier date for the temporary care and custody motion. That request was granted by Justice Jones and the hearing of this motion was scheduled.
[4] The society and the father ask that Justice Fraser’s order now be made with prejudice.
[5] The mother asks that the children be placed in her temporary care and custody subject to terms of society supervision. In the alternative, she seeks increased access with the children.
[6] The society relied on two affidavits of its worker Joelle Williams. The mother also filed an affidavit sworn on November 8, 2021.
[7] The father sought permission to affirm a short affidavit at the hearing. The matter was held down so that everyone could read it. The court indicated it would consider the affidavit and offerred the mother a short adjournment if she wanted to prepare a response. She declined and said that she wished to proceed. The court affirmed her and permitted her to give additional oral evidence at the hearing, without cross-examination, to respond to the father’s affidavit and to supplement her own evidence.
Part Two – Brief background facts
[8] The respondents are the parents of the children. They are separated.
[9] The children lived with the mother after the separation. The father visited the children in the mother’s home.
[10] In November 2020, the York Regional Police made a referral to the York Region Children’s Aid Society arising out of its concern about the mother’s mental health. It was reported that the mother called the police crying, with children screaming in the background. The mother claimed that H. had revealed to her where the mother’s brother was murdered. The police took the mother to the hospital where she spent the night. She was offerred supports but declined them.
[11] The case was transferred to the society by York Region Children’s Aid Society in December 2020.
[12] In January 2021, the father moved to Petawawa, Ontario with his parents. He came to the mother’s home in Toronto once a month for the weekend to spend time with the children.
[13] In February 2021, the York Regional Police again reported concerns about the mother’s mental health to the society. The mother was stating that her father had killed her brother who passed away a few years before and that her father had threatened her. The mother made concerning statements to the society worker, including that she might harm herself.
[14] On April 12, 2021, the Halton Children’s Aid Society (Halton CAS) was called by the Halton Regional Police about the mother’s mental health. It was reported that the mother had been driving around all night with the children and that she reported being fearful of her family and had threatened to kill herself and the children. It was the mother who had called the police.
[15] The mother was apprehended pursuant to the Mental Health Act and taken to the hospital. The children were placed by Halton CAS in a foster home as a place of safety.
[16] The children were placed by Halton CAS with the father on April 17, 2021.
[17] The mother was discharged from the hospital on April 19, 2021. Her discharge diagnosis was “unspecified schizophrenia spectrum and other psychotic disorders and rule out unspecified bipolar disorder”. There was a recommendation for her to continue prescribed Lozapine. A referral was made for outpatient psychiatric follow up.
[18] Halton CAS transferred the case to the society on May 4, 2021.
[19] The child protection application was issued in Pembroke on May 11, 2021 and Justice Fraser made her order that day.
[20] The children have resided with the father since April 17, 2021.
Part Three – Legal considerations
3.1 Who had charge of the children?
[21] The society argues that both the mother and father had charge of the children prior to society intervention under Part V of the Child, Youth and Family Services Act, 2017 (the Act).
[22] The determination of who had charge of the children prior to society intervention under Part V of the Act is important because that person or persons is given priority pursuant to clauses 94 (2) (a) and (b) of the Act.
[23] The test in subsection 94 (2) is designed to set up a rigorous standard for society intervention in the life of a person who has charge of a child. The court does not and should not lightly eliminate the subsection 94 (2) rights of the person who may have had charge of the child. See: Children’s Aid Society of Toronto v. C.S. and K.J., 2015 ONCJ 111. [1]
[24] If the society’s position is correct, then the mother and father would be on equal footing in determining where the children should be placed on a temporary basis. If the court found that the children could be adequately protected in the care of either parent with terms of supervision, then it would need to conduct a best interests analysis to determine where they should be placed.
[25] If the court did not accept the society’s position, and found that the mother was the sole pre-intervention person in charge of the children, then the court would first look at whether the children could be adequately protected in her care with terms of supervision. Only if the answer to that question was no would the court look at whether the children could be placed with the father. The test in clauses 94 (2) (a) and (b) of the Act is not a best interests comparison between the parents.
[26] The question of who had charge of the children prior to society intervention under Part V of the Act is also an important determination at trial. If the children are found to be in need of protection, subsection 101 (3) of the Act directs the court to not make an order removing the them from the care of the person who had charge of the children immediately before intervention under Part V unless the court is satisfied that alternatives that are less disruptive to the children, including non-residential care and the assistance referred to in subsection 101 (2), would be inadequate to protect the children.
[27] The determination of who had charge of the children prior to society intervention under Part V of the Act in this case is problematic. Halton CAS should have brought the matter to court within 5 days after the children were brought to a place of safety (the foster home) on April 12, 2021. If they had done that, then there would be no question that the mother alone had charge of the children.
[28] Halton CAS placed the children with the father on April 17, 2021, but that was not an alternative available to it under section 88 of the Act. Halton CAS either had to return the child to the mother, enter into a temporary care agreement with her pursuant to subsection 75 (1) of the Act or bring the mattter to court within five days. They did none of those things. Section 88 of the Act reads as follows:
Time in place of safety limited
88 As soon as practicable, but in any event within five days after a child is brought to a place of safety under section 81, subclause 83 (1) (a) (ii) or subsection 136 (5),
(a) the matter shall be brought before a court for a hearing under subsection 90 (1) (child protection hearing);
(b) the child shall be returned to the person who last had charge of the child or, where there is an order for the child’s custody that is enforceable in Ontario, to the person entitled to custody under the order;
(c) if the child is the subject of an extra-provincial child protection order, the child shall be returned to the child welfare authority or other person named in the order;
(d) a temporary care agreement shall be made under subsection 75 (1); or
(e) an agreement shall be made under section 77 (agreements with 16 and 17 year olds).
[29] This raises questions. Should the mother lose her status as the sole person who had charge of the children, or perhaps lose any status as a person having charge of the children prior to society intervention under Part V of the Act because Halton CAS did not comply with section 88 of the Act?
[30] Also, the children lived with the father from April 17, 2021 until the matter was brought before Justice Fraser on May 11, 2021. Is this enough time to find that the father also had charge of the children prior to society intervention under Part V of the Act?
[31] The court does not have to decide this important issue on this motion because even if the mother was found to be the sole person in charge of the children prior to society intervention under Part V of the Act, the court finds that supervision terms are inadequate to protect the children in her care. The reasons for that finding will be set out below.
[32] The trial judge will be better able to determine the issue of who had prior charge of the children with a full evidentiary record and with the benefit of cross-examinations.
3.2 Is this hearing the original temporary care and custody motion or a motion by the mother to change an existing order?
[33] The father submits that the lapse of time has turned Justice Fraser’s May 11, 2021 without prejudice order into a with prejudice order. [2] If correct, this places the onus on the mother to convince the court that the order should be changed. [3]
[34] The society and the mother disagree with the father and submit that this is the hearing of the original temporary care and custody motion and the onus still remains on the society purusant to subsection 94 (2) of the Act.
[35] Again, the court does not have to determine this issue on this motion. Even if the more favourable test to the mother is applied (that the onus remains on the society) the court finds that supervision terms are inadequate to protect the children in her care. The more favourable legal test for the mother and the court’s analysis will be set out below.
3.3 Legal considerations on a temporary care and custody motion
[36] The legal test for the court to apply on a temporary care and custody motion is set out in subsections 94 (2), (4) and (5) of 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.
[37] 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 or conditions of a temporary supervision order. See: Children's Aid Society of Ottawa-Carleton v. T., 2000 21157 (ON SC), [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.
[38] 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.
[39] 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.
[40] 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 – Analysis
4.1 The mother
[40] The evidence supports findings 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 and that the children cannot be adequately protected by terms or conditions of a temporary supervision order in her care.
[42] The mother was experiencing significant mental health issues when the children were placed with the father on April 17, 2021. There had been three referrals to the society from the police in recent months with concerns expressed about her mental health and functioning. The mother was involuntarily admitted to the hospital on a Form 1 on April 12, 2021.
[43] The mother has not made any real progress in addressing her mental health issues since then. The risks to the children remain the same.
[44] The society offered the mother a number of mental health supports. The mother did not follow up with them until very recently when she attended for intake at one program. She has not started any programming yet.
[45] The mother has chosen not to have psychiatric care.
[46] The mother has also chosen not to take her prescribed medication – she advised the court that it makes her drowsy.
[47] The society and the father reported that the mother often presents with concerning mental health symptoms. She continues to make statements of murder, being involved with the military, private investigations with the police that she cannot reveal and makes wild allegations about the father’s family. She speculates that the father is her brother.
[48] On July 5, 2021, the mother emailed the society worker to indicate that she was no longer willing to work with the society and professionals, that she was a murderer like her father and that the police were called because of conflict between her and her parents.
[49] On July 9, 2021, the mother emailed the society worker stating that she was working undercover because the police “were too blind to realize that their family’s mental health needs to be assessed” and she stated that the father could help her keep the children longer “until these perpetrators are behind bars because I don’t tolerate police running around like chickens and my family problems ain’t solved”.
[50] In July 2021, the father reported to the society that the mother was telling people in the community that she wanted to sell the children and that she was leaving him long voice messages cursing at him and saying vulgar things about him having sexual relations with female family members.
[51] On October 19, 2021, the mother told a new society worker (she had requested a new worker) that she does not want her new address shared with her former society worker, Ms. Williams, the father and the father’s mother or she will make arrests as she is working for 42 and 43 Division and soon the military.
[52] The father deposed that the mother’s mental health issues are long-standing. He described her as very frightening, aggressive and threatening when she is not well. He said that she does not seek treatment unless hospitalized and that she does not take her prescribed medication.
[53] It was evident from the evidence and in listening to the mother at the hearing that she minimizes the seriousness of her mental health issues. The mother writes in her affidavit:
The conclusion is that I’m starting my own lawsuit on CAS because, for one I didn’t do a murder or commit suicide or harm anyone….
I had 2 mental breakdowns in total and I’m allowed because no one was willing to help me when it was the father’s responsibility to do their part.
[54] In her Notice of Motion the mother writes:
What did I do wrong? I’m not a murderer, liar and a thief like they are (referring to the paternal grandparents) and I’m going to get each and every one of them arrested, because, their all trying to harm me and the father to get money.
[55] The mother told the court “I don’t care for medications or vaccinations – I don’t believe in those things”.
[56] The mother is not obtaining the help she needs. She needs to have consistent psychiatric care and must follow through on treatment recommendations. Until she is prepared to seek this help, develop some insight into her mental health issues and follow through with a treatment plan, the risk to the children of returning them to her care remains far too high. The court has no confidence that the mother would follow through with terms of supervision at this time. They would be inadequate to protect the children.
[57] The mother also has no supports to mitigate these risks. She is isolated from her family members. She is not engaging with the mental health system – although the court is encouraged that she recently attended for an intake session. There is no safety plan to adequately protect the children in her care.
[58] The children are young and vulnerable. H. has significant special needs. The children require a high-functioning caregiver to meet their needs. At this point, the mother is not taking care of herself and is not able to provide the children with the stability and security that they require.
4.2 The father
[59] The next step in the analysis is to determine whether the children can be placed with the father subject to the society’s supervision, on such reasonable terms and conditions as the court considers appropriate.
[60] The court agrees with the society that the children can be adequately protected by terms of supervision in the care of the father.
[61] The society reports that the children are doing well in the father’s care. He is meeting their needs.
[62] The father lives with his parents who provide him with significant parenting assistance.
[63] The father has followed through with a counseling program recommended by the society.
[64] The father has cooperated with the society.
Part Five – Access
[65] Presently, the mother has in-person visits with the children once each month and virtual visits twice each week. Ideally, she should have more in-person visits, but logistics make this difficult as the father lives in Petawawa and relies on his parents to transport the children. Further, the mother has been saying that she only wants to see the children in Toronto.
[66] The mother’s initial visits with the children were positive.
[67] The mother had a two-week visit with the children from June 12 to 26, 2021. The father reported some problems with the visits but agreed to another visit being scheduled from July 10 to July 24, 2021. However, this visit was cancelled by the society due to the mother’s escalating mental health issues.
[68] A two-hour visit was scheduled at the society’s office on September 24, 2021. The mother asked to have the father pick up the children after one hour as she felt that they were getting tired and she needed to go to work. It was observed by the society that for the remainder of the visit, the mother was less engaged with the children, seemed tired and was frustrated with the children’s behaviours.
[69] On October 19, 2021, the mother called the society worker and said that she would prefer to hold off on in-person access until the next court date.
[70] 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 temporary access order made by Justice Fraser, which provides this flexibility, while prescribing minimum access, is in the temporary best interests of the children.
Part Six – Representation
[71] 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 struggled to present her case in a coherent manner.
[72] 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 Seven – Conclusion
[73] A temporary order shall go that the May 11, 2021 order of Justice Fraser is now with prejudice.
[74] The court strongly encourages the mother to follow up with the recommendations made by the society to address her mental health issues. It was evident to the court how much she loves her children and that she wants what is best for them. She needs to accept the help she needs to be the best possible parent for them.
Released: November 26, 2021
Justice S.B. Sherr
Notes
[1] This case also sets out that there can be more than one person who has charge of a child.
[2] This court reviewed the case law regarding when without prejudice orders become with prejudice orders due to the lapse of time in Catholic Children’s Aid Society of Toronto v. W.I., 2014 ONCJ 62.
[3] The test to change a temporary placement order during a protection application was recently reviewed by Justice Spence in Catholic Children’s Aid Society of Toronto v. S.M., 2021 ONCJ 573.