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.
CITATION: Jewish Family and Child Service of Greater Toronto v. Y.M.M., 2021 ONCJ 622
DATE: December 6, 2021
COURT FILE NO. C41992/21
ONTARIO COURT OF JUSTICE
B E T W E E N:
JEWISH FAMILY AND CHILD SERVICE OF GREATER TORONTO APPLICANT
- and -
Y.M.M. and Y.Y.M. RESPONDENTS
COUNSEL: HALEY GABER-KATZ, for the APPLICANT ARI RUBIN, for the RESPONDENTS GARY GOTTLIEB, on behalf of the OFFICE OF THE CHILDREN’S LAWYER, for the child, SH. M. JULIA VERA, on behalf of the OFFICE OF THE CHILDREN’S LAWYER, for the child, SA. M.
HEARD: December 1, 2021
JUSTICE S.B. SHERR
ENDORSEMENT
Part One – Introduction
[1] Jewish Family and Child Service of Greater Toronto (the society) has brought a motion within its protection application regarding the respondent parents’ (the parents) eight children (the children). It seeks to place the child Sh. M. (age 9) in the temporary care and custody of his maternal grandmother and the other seven children in the temporary care and custody of the parents, both placements being subject to its supervision.
[2] The main protection concern arises from the child Sh. M.’s sexual behaviours towards his sister, Sa. M. (age 7).
[3] On October 28, 2021, Justice Melanie Sager made a temporary without prejudice order on the terms sought by the society in its motion. Justice Sager also appointed counsel for Sh. M. and Sa. M., pursuant to section 78 of the Child, Youth and Family Services Act, 2017 (the Act). She adjourned the society’s motion to give the parents the opportunity to respond.
[4] The parents seek an order that all eight children be placed in their temporary care and custody, subject to terms of society supervision.
[5] Sh. M.’s counsel supports the parents’ position. He proposed additional terms of society supervision.
[6] Sa. M.’s counsel said that she cannot provide a position on behalf of Sa. M. yet, as she was just assigned the case. However, she advised the court that Sa. M. wants Sh. M. to return home. Sa. M’s counsel also advised the court that Sa. M. says that Sh. M’s behaviour hurt her and she wants to make sure that this is not repeated.
[7] The society relied on three affidavits of its worker, Ms. Vigna. The parents both filed affidavits. They also filed affidavits from the principal of the school that Sh. M. atttends (the principal), and from Dr. Glogauer, a clinical psychologist who is presently treating Sh. M.
[8] The main issues for this motion are:
a) Are supervision terms adequate to protect all the children in the care of the parents?
b) If so, what terms of supervision should be ordered?
c) If not, what access terms between Sh. M., his siblings and his parents are appropriate?
Part Two – Background facts
[9] Y.M.M. (the mother) and Y.Y.M. (the father) are married and live together. They are the parents of the following children:
a) E.A.M. – age 11
b) N.T.M. – age 10
c) Sh. M. – age 9
d) Sa. M – age 7
e) B.N.M. – age 6
f) B.E.M. – age 4
g) Y.M. – age 2
h) Z.M. – age 1
[10] The parents identify as part of the ultra-orthodox Jewish community and have raised the children with these religious values.
[11] On December 13, 2020, the society was called by Sa. M.’s pediatrician. He reported that the mother had called him and had told him that she found Sh. M. and Sa. M. in bed together, that Sa. M. had reported that Sh. M. had put his penis inside her and that Sa. M. had said that this had happened a few times. At the time, Sa. M. was 6 years old. Sh. M. had just turned 8 years old.
[12] The society investigated the matter. The mother reported to the society that a week or two before this incident she had found Sh. M. in Sa. M.’s bed. When she went into the room, Sh. M. ran out. She said that she had asked Sa. M. what had happened, and that Sa. M. had told her that Sh. M. sometimes makes her put on a diaper. The mother said that she told Sa. M. that if this happened again to tell her or the father immediately.
[13] The mother told the worker that on December 13, 2020, she was awakened by her bedroom door closing at 5 a.m. She got up and found Sh. M. in Sa. M.’s bed again. She said that Sh. M. ran out of the room. She said that Sa. M. told her that Sh. M. had put his penis on her. She said that she asked Sa. M. a few times and she changed her explanation from Sh. M.’s penis being on her to being in her. She said that Sa. M. told her that this had happened the time before, when the mother had found them together in the bedroom.
[14] Sa. M. told a society worker that Sh. M. had come into her bed and put his penis in her vagina. She denied being in pain when it happened and said that she hadn’t felt pain since then. She reported feeling safer that Sh. M. was no longer allowed upstairs where her room is. She told a second society worker that Sh. M. had done this 6 or 7 different times before.
[15] Sa. M. also reported that the parents use a stick on “the cheek and tush” for any of the children making trouble. She said that this had happened “5, 6, 7 times”.
[16] Sh. M. told a society worker that he had put his penis in Sa. M.’s vagina, but was unsure how many times. He expressed feeling sad and guilty and stated that he would not do it again. He reported that no one had done this to him and that he had learned it from going to the store, or on advertisements on videos. He said that his parents had last used the stick the year before.
[17] E.A.M., then 10 years old, reported to a society worker that a cleaning lady had touched his private area and that he had told his mother about this and he had not seen the cleaning lady since the incident. He said that he felt comfortable telling his parents if someone touches him sexually. He told a second society worker that the cleaning lady would “smack him on his tush”. He said that the father had not used the stick in the past year.
[18] B.E.M., then 5 years old, told a society worker that Sh. M. would pinch his bum over his clothing, even when he told him to stop. He said that Sh. M. makes him feel unsafe. He also said that his father used a stick to smack his bum.
[19] The society and the parents developed a safety plan that Sh. M must be fully supervised by the parents, he should not be left alone with any child at any time and that he must sleep alone in a room without any other children.
[20] The parents agreed to no longer use the stick for disciplining the children.
[21] The society made a referral to Radius Child and Youth Services (Radius) for an assessment of and treatment for Sa. M. and Sh. M.
[22] The society monitored the safety plan and had no concerns about the parents’ follow-through. They were very cooperative. No futher disclosures were made by the children.
[23] On July 7, 2021, the society approved Sh. M. sharing a bedroom with his two oldest brothers, E.A.M. and N.T.M.
[24] The society also explored private therapy for Sh. M. and Sa. M. while it waited for Radius to start. The mother connected with a therapist that she had found. However, that therapy never started as the therapist did not feel she could effectively work within the cultural restrictions that the parents were insisting upon.
[25] On September 15, 2021, the mother called Ms. Vigna to report that another sexual incident had occurred between Sa. M. and Sh. M. She explained that she woke up and found them playing in Sa. M.’s bedroom. Sa. M. disclosed to the mother that Sh.M. had bribed her to pull down her pants, which she did, and then he leaned on her. No penetration was reported.
[26] Ms. Vigna met with the mother and spoke about increasing supervision to ensure that Sh. M. and Sa. M. are never to be unsupervised and that Sh. M. should always be in her eyesight. The mother agreed. They discussed purchasing a door alarm.
[27] Ms. Vigna interviewed Sh. M. on October 5, 2021. He denied that the new incident had occurred. Sa. M. joined the conversation and said that Sh. M. had put his privates into her privates again. She said that this had happened a few weeks before but did not provide any specific date. Sa. M. shared the impact of Sh. M. doing this to her and Sh. M. shared that he did not know it made her feel badly. He said how badly he felt and wished that it had never happened.
[28] The mother deposed that she does not believe that Sh. M. ever penetrated Sa. M., as both times that she had come into the room the children were fully clothed. She said that Sa. M. had told her “on the vagina” and not “in the vagina”. She expressed concerns about the multiple interviews of Sa. M. and Sh. M. and was worried that leading questions were being asked. She agreed that the sexual activity was inappropriate, Sh. M. must be strictly monitored and that Sa. M. and Sh. M. need treatment. She expressed frustration with the long wait for the Radius program to begin.
[29] A safety plan was created by Ms. Vigna, together with Sa. M. and Sh. M. The plan was that they were not to be in the same room unsupervised and about what Sa. M. should do if Sh. M. tried to do this again. This plan was shared with the mother. The mother was receptive to Ms. Vigna’s suggetstion to install and use door alarms and cameras in the home.
[30] Ms. Vigna deposed that on October 6, 2021, she consulted with her supervisor and decided that, given the difficulties of maintaining the safety plan in the home, it would create less risk if Sh. M went to stay with his maternal grandmother. She said that the parents agreed to this plan. She said that that the mother had explained to her that the original safety plan had worked for the entire year because she and the father had been incredibly vigilant, but they got lax during the Jewish High Holidays. She also said that Sh. M. had been placed on a new medication to assist him with his impulsive behaviour.
[31] The society put into place a Child and Youth Worker (CYW) to supervise Sh. M. spending time in the family home after school.
[32] The society issued this protection application on October 27, 2021 and obtained the temporary without prejudice supervision order from Justice Sager on October 28, 2021.
[33] The family continues to be on the waitlist for Radius. No timetable has been set for when this process will start.
[34] The parents, on their own initiative, obtained Dr. Glogauer to provide individual therapy for Sh. M.. The society is assisting in funding this private treatment. Sh. M. has had about 6 sessions.
[35] Sh. M. is spending considerable time with his family. He is either supervised at the parents’ home by the CYW (up to 19.5 hours each week) or by two pre-approved relatives. The entire family spends the Sabbath at the maternal grandmother’s home. Sh. M. sleeps in a room with his parents. The society feels that this is safe as there are four adults in the home.
Part Three – Legal considerations
[36] The legal test for the court to apply on this 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] 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 Sh. M. is returned to the parents, it is more probable than not that one or more of the children 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.
[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 – Evidentiary issues
[41] Sh. M.’s counsel pointed out concerns with Ms. Vigna’s inclusion of what was said at a meeting with Radius staff on November 10, 2021 in her reply affidavit. A clinical worker (the clinician) from Radius reportedly said that the safety plan with Sh. M. being out of the home was the most appropriate plan. The clinician said that during the assessment period there can be no contact between Sh. M. and Sa. M. to protect the integrity of the disclosures of the incidents. She expressed concern about the parents’ minimization of the incidents and gave an opinion that there was a high-risk level in this case.
[42] Sh. M.’s counsel described the opinions ascribed to the clinician as inappropriate and that this evidence should be given little, if any, weight. The court agrees for the following reasons:
a) The qualifications of the clinician to give these opinions was not provided.
b) No curriculum vitae was provided for the clinician.
c) It is concerning that the clinician from the proposed treatment provider is giving opinions without ever having ever met the children, the parents or having spoken to other collaterals, such as Dr. Glogauer. The clinician expressed concerns about the parents’ minimization of the incidents without even speaking to them about this.
d) This was inadmissible opinion evidence. This evidence wasn’t just introduced for narrative - it was included to buttress the society’s position.
[43] Sh. M.’s counsel also submitted, and this court agrees, that Dr. Glogauer’s evidence is also problematic. Sh. M.’s counsel submitted that Sh. M. needs independent professionals assessing, treating and reporting about him – not to be advocating for him. Dr. Glogauer’s evidence veered into advocacy. She advocated for Sh. M.’s immediate return home. She feels that the society’s actions are likely causing him harm and could serve to perpetuate more challenges for him in the future. She deposed that Sh. M. does not really understand why he is out of the home and that there is no way to make therapeutic gains when he does not understand this. She feels that he needs to be treated while in the home.
[44] The society has been unable to speak to Dr. Glogauer. The parents only recently signed consents permitting it to speak to her. It is unknown how much information Dr. Glogauer has about the risk concerns to support her opinions.
[45] The court also did not receive a curriculum vitae for Dr. Glogauer. It is unknown, what, if any, expertise she has in treating children of this age for sexualized behaviours.
[46] The court treated Dr. Glogauer’s opinions, at this stage, with caution.
Part Five – First part of the two-part test
[47] The parties, counsel for Sh. M. and counsel for Sa. M. agreed that the first part of the two-part test was met by the society – that there is a real possibility that if Sh. M. is returned to the care of his parents, it is more probable than not that one or more of the children will suffer harm.
[48] The parties and counsel for Sh. M. and for Sa. M. also agreed that Sh. M.’s sexual conduct was inappropriate, went beyond the boundaries of childhood exploration and that this conduct creates a risk of harm to one or more of the children.
Part Six – Second part of the two-part test
[49] The second part of the two-part test is where the parties differ. The society submits that despite a safety plan being put into place, the sexualized behaviours happened again, harming both Sa. M. and Sh. M. It submits that, given the severity of the incidents, until it has the results of the Radius assessment, it cannot assess if it is safe for Sh. M. to return home. It submits that it has been proven that the parents cannot provide adequate supervision. It expressed concern that the parents were minimizing the incidents.
[50] The parents and counsel for Sh. M. submit that supervision terms are adequate to protect the children and that the society has not met its onus under the second part of the two-part test. The parents proposed multiple terms of supervision. They deny minimizing the risk concerns.
[51] The parents deposed that Sh. M.’s emotional health has deteriorated since he left the family home. They say that he is sad and cries when he has to leave the family, pleading with them to let him stay. Dr. Glogauer deposed that Sh. M. is experiencing stomach aches that are preventing him from getting to school on time, or at all, several days a week and that Sh. M. is very stressed. The principal deposed that in the past weeks, he has noticed a decline in Sh. M.’s academic studies and in his “overall confidence”.
[52] Sh. M.’s counsel described him as a very small and slight child for his age. He said that Sh. M. badly wants to return home. Sh. M. is embarrassed by what happened and knows it led to his removal from his family. Counsel submitted that Sh. M. thought he was playing and that he feels that he is being punished. He described Sh. M. as a little boy who went beyond exploratory children’s play. He suggested supervision terms in addition to those suggested by the parents. The parents were agreeable to them.
[53] The following factors support the society’s position on this motion:
a) Sh. M.’s return home poses a risk of sexual harm to the children, specifically to Sa. M.
b) Despite a strict safety plan having been put into place, the parents were unable to properly supervise Sh. M. and his inappropriate sexual conduct towards Sa. M.
c) The parents admitted that their supervision had became lax over the Jewish High Holidays.
d) The parents have the challenge of trying to supervise eight children.
e) Sh. M. appeared to understand the seriousness of his conduct after the incidents in December 2020 yet could not control himself and repeated his inappropriate sexualized behaviour.
f) The court is also worried about Sa. M.’s emotional safety and about how Sh. M. returning to the home may impact this. Will she feel safe? Will she feel protected? Unfortunately, there is no expert evidence before the court to guide it.
g) Sh. M. has just started treatment. He has not been assessed. Sa. M. has not been assessed to determine the appropriate treatment for her. This increases the risk of harm.
[54] However, despite these factors, the court finds that the society did not meet its onus under the second part of the two-part test for the following reasons:
a) The parents provided a detailed and thoughtful safety plan. This includes cameras and door alarms being installed throughout the home.
b) The parents were receptive to the additional safety terms sought by Sh. M.’s lawyer. This includes a term that Sh. M. must sleep in his parents’ room.
c) The parents are highly motivated to reunify their family and to do whatever it takes to make sure that their family stays together. It is evident that they are struggling with this separation.
d) Ms. Vigna described the parents as cooperative and deposed that they have followed through on all requests made of them.
e) Ms. Vigna described the parents as loving, nurturing and caring towards their children.
f) The principal deposed that he has known the parents for many years. He said they have shown themselves to be capable and responsible parents, who have always been in tune to their children’s needs and have taken the children’s education and well-being “incredibly seriously”.
g) The principal deposed that the parents acted responsibly by informing him of Sh. M.’s sexualized behaviour to protect the other children at school. He said that the parents worked collaboratively with him to create a safety plan, and as a result, there have been no incidents at school.
h) The mother immediately reported the incidents of Sh. M.’s sexualized conduct. She did not try to hide this from the society.
i) The court does not agree, based on the evidence provided, that the parents are minimizing these incidents – at least not to the extent that it increases the risk level. There may be issues, if there ever is a trial, about the reliability of some of the specifics of Sa. M.’s disclosures. She is a very young child who was interviewed several times.
Whether or not Sh. M. penetrated Sa. M. is not the issue. What is important is that the parents are very aware that Sh. M.’s sexualized behaviour was very inappropriate and that Sh. M. must be fully supervised. They are also very aware that both Sh. M. and Sa. M. will require treatment and are supportive of this.
j) The parents were proactive in seeking out Dr. Glogauer. Dr. Glogauer observed that the parents have demonstrated their commitment to doing the right thing regarding the safety of the children.
k) The parents are not isolated. They have family and community supports. They are not reticent to use those supports.
l) Sh. M. is already spending one overnight each week with his whole family. He sleeps in his parents’ bedroom at the maternal grandmother’s home (although the court is well aware there is more adult supervision when this happens).
m) The parents are now very aware of the consequences of being lax again in their supervision.
n) The views and wishes of Sh. M. are to return home. Sa. M. wants him to return home. She also wants no repeat of these incidents.
o) The court accepts that Sh. M. is suffering some emotional harm from being separated from his family.
p) This is the least intrusive alternative consistent with the best interests, protection and well-being of the children.
q) Unfortunately, the society could offer no timeline as to when Radius could start its assessment process. It could also offer no timeline as to how long the treatment process could take. It appears that Radius wants Sa. M. and Sh. M. to be separated while the assessment process takes place. No timeframe was given about how long this might take, or if Radius would require these children to be separated during the treatment process as well.
The society also offered no expert evidence that separating these children, for what could be a very long time, is the preferred treatment model.
[55] The children will be placed in the temporary care and custody of the parents subject to strict terms of society supervision that will be set out below. The court will be ordering most of the supervision terms sought by the society and Sh. M.’s counsel.
Part Six – Conclusion
[56] A temporary order will go on the following terms:
a) The children are placed in the temporary care and custody of the parents, subject to terms of society supervision, pending further court order.
b) The following shall be the terms of society supervision:
i) Sh. M. shall not be left alone with any child age 13 and under. An adult must always supervise him with a child 13 and under.
ii) Sh. M. shall sleep in the parents’ bedroom each night.
iii) Operating cameras are to be installed in the three main bedrooms of the parents’ home.
iv) Operating door alarms shall be installed in each of the three children’s bedrooms and in the parents’ bedroom.
v) The society shall be permitted to make announced and unannounced visits to the parents’ home, at a minimum bi-weekly and permit society workers to have private interviews with all the children.
vi) The parents shall promptly return phone calls and emails from society workers.
vii) The parents shall immediately report to the society any incident of sexualized activity by Sh. M. towards another child.
viii) The parents shall ensue that Sh. M. and Sa. M. participate in any assessment recommended by the society, or approved of in advance by the society.
ix) The parents shall ensure that Sh. M. and Sa. M. engage in therapy, as recommended by the society, in consultation with the parents’ counsel, counsel for Sh. M. and counsel for Sa. M.
x) The parents shall ensure that all the children receive medical and therapeutic care, as deemed necessary by the society and shall follow up on any doctor’s recommendations and referrals.
xi) The parents shall ensure that the children participate in age-appropriate psychoeducation related to sexual health, consent and appropriate touch as recommended by the society, or approved of in advance by the society. The parents shall also follow the recommendations of these service providers.
xii) The parents shall participate in counseling services as recommended by the society, or approved of in advance by the society, at a frequency to be determined by the service/treatment provider in conjunction with the society. The parents shall follow through with the recommendations of the service/treatment provider.
xiii) Th parents shall participate in any assessment, treatment or service related to the children, as requested by the service/treatment provider.
xiv) The parents shall sign any necessary consents or authorizations for the society, counsel for Sh. M. and counsel for Sa. M. to speak directly to and to obtain information directly from any school, doctor or service provider for the parents and the children.
xv) The parents shall ensure that Sh. M. is regularly seen by his pediatrician and ensure that Sh. M. takes any medication prescribed by the pediatrician.
xvi) The parents shall not use any form of physical discipline on the children.
xvii) The society must pre-approve any adult supervisors for the children.
c) There is to be full information sharing between the society, counsel for Sa. M., counsel for Sh. M., and any treatment provider for Sh. M. and Sa. M. The parties will execute any releases or consents for this information sharing to take place.
[57] The return date will be on February 16, 2022 at 2:00 p.m. for a case conference that will be scheduled for 45 minutes. It will be held by videoconference.
[58] The court thanks counsel for their professional presentation of this motion.
Released: December 6, 2021
Justice S.B. Sherr