Publication Warning

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.

Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2022-01-25 COURT FILE No.: Guelph C166-21

BETWEEN:

M.M. Applicant,

-AND-

Family and Children's Services of Wellington County, A.M. and J.S. Respondents

Before: Justice K. S. Neill

Heard on: January 7, 2022 Reasons for Judgment released on: January 25, 2022

Counsel: P. Brohman ………………………………………………………………counsel for the applicant A. Circelli ………………………………………………counsel for the respondent society S. Boland ………………………………………..counsel for the respondent mother, A.M. G. Punnett …………………………………………counsel for the respondent father, J.S.

Neill, J.:

Reasons for Judgment

[1] This is a unique application brought by the applicant maternal grandmother, M.M. ("the grandmother") pursuant to s. 81(4) of the Child, Youth and Family Services Act ("the CYFSA"), to have her granddaughter, B.M., age 7, brought before the court to be dealt with under the child protection legislation. B.M. is subject to proceedings under the Children's Law Reform Act ("CLRA") between her parents, A.M. ("the mother") and J.S. ("the father") and she is presently in the care of her father pursuant to a temporary order made on January 28, 2021 in the CLRA proceedings. It is the grandmother's position that B.M. is not being adequately protected in her father's care, and that B.M. needs the protection of being subject to an order for society supervision either in her father's care or her grandmother's care. The other parties to the application take the position that either B.M. is not in need of protection pursuant to the CYFSA or she can be adequately protected pursuant to orders made in the CLRA proceeding.

[2] In the grandmother's application she seeks findings that B.M. is in need of protection pursuant to s. 74(2)(a)(ii), (b)(ii), (c), (d), (f) and (h) of the CYFSA and a final order that B.M. be placed in her care pursuant to a 9 month supervision order. She also brought a motion requesting placement of B.M. in her temporary care subject to a supervision order, an order for OCL involvement for B.M., and an order that the father undergo a parenting capacity assessment pursuant to s. 98 of the CYFSA.

[3] Since B.M. was placed in her father's care, the grandmother has continuously advised the Society of her concerns, and the Society has not commenced a protection application. Therefore, the grandmother commenced this application on August 26, 2021, on notice to the Society.

Background

[4] The mother and B.M. have been involved with either the Guelph Wellington Society or the Children's Aid Society of the Regional Municipality of Waterloo on and off from May, 2014 to the present due to the mother's parenting capacity, mental health struggles and history of domestic violence with the father. The father did not have contact with B.M. from the time she was an infant until late 2017, when he started to only have supervised access with her.

[5] As a result of the child protection concerns, B.M. was placed in the grandmother's care by the Society for substantial periods of time over 4 years of her life as follows:

• May to October, 2014 (5 months)
• January, 2014 to January, 2015: with the mother and the grandmother (1 year)
• March, 2016 to in or about August, 2018: 2 ½ years pursuant to a supervision order

[6] The paternal grandmother has also played an active role in supporting the father in caring for B.M., including cleaning his apartment, doing laundry and purchasing food for the father and B.M.

[7] From August, 2018 to in or about January 28, 2021, B.M. remained in the care of her mother and her mother's partner, Mr. L, their two children ages 1 and 3, and the mother's older son who is 6. In December, 2020, B.M. disclosed that Mr. L sexually assaulted her, which assault the mother denies. Pursuant to a mediated agreement, as of January 28, 2021, the father has primary residence of B.M. with parenting time with the mother. In the CLRA proceedings on July 13, 2021, it was made clear that Mr. L would at no time to be left alone with B.M. during her parenting time with the mother.

[8] Since February, 2021, B.M. has been removed from her father's care by the Society on two occasions due to the father's poor living conditions and placed with either the grandmother, or the paternal grandmother for almost one month on each occasion, the last time being from July 29, 2021 to August 24, 2021. The Society permitted B.M. to return to the care of her father as of August 24, 2021.

The Law

[9] The relevant sections of s. 81 of the Act read as follows:

Warrants, orders, etc.

Application

s. 81(4) Order to produce child or bring child to place of safety

(4) Where the court is satisfied, on a person's application upon notice to a society, that there are reasonable and probable grounds to believe that,

(a) a child is in need of protection, the matter has been reported to the society, the society has not made an application under subsection (1), and no child protection worker has sought a warrant under subsection (2) or brought the child to a place of safety under subsection (7); and

(b) the child cannot be protected adequately otherwise than by being brought before the court,

the court may order,

(c) that the person having charge of the child produce the child before the court at the time and place named in the order for a hearing under subsection 90 (1) to determine whether the child is in need of protection; or

(d) where the court is satisfied that an order under clause (c) would not protect the child adequately, that a child protection worker employed by the society bring the child to a place of safety.

[10] As stated by Justice Jones in Children's Lawyer v. N.N.D. pursuant to s. 81(4):

"there is a threshold issue to be determined by the Court when an application is made under that section by a person, on notice to the Society. The court must determine whether there are reasonable and probable grounds to believe that a child is in need of protection and that the child cannot be protected adequately otherwise than being brought before the court. If the court is satisfied that the threshold has been met, then the court may order the person having charge of the child to produce the child before the court for a hearing under (what is now) s. 90 (1) to determine whether the child is in need of protection, or that a child protection worker bring the child to a place of safety".

[11] The parties agree that the court must determine this threshold issue before embarking on a temporary care hearing pursuant to s. 94 of the CYFSA, with the benefit of the involvement of the Office of the Children's Lawyer to put B.M.'s views and wishes before the court. This is the proper procedure as only after the threshold issue is met can the court consider any temporary order that should be made pursuant to s. 94 of the CYFSA.

Reasonable grounds to believe that B.M. is in need of protection:

[12] The first issue to be determined is whether there are reasonable and probable grounds to believe that B.M. is in need of protection. The grandmother's position is that B.M. is in need of protection pursuant to the following provisions of s.74(2) of the CYFSA:

7 4(2) A child is in need of protection where,

(a) the child has suffered physical harm, inflicted by the person having charge of the child or caused by or resulting from that person's,

(i) failure to adequately care for, provide for, supervise or protect the child, or

(ii) pattern of neglect in caring for, providing for, supervising or protecting the child;

(b) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person's,

(i) failure to adequately care for, provide for, supervise or protect the child, or

(ii) pattern of neglect in caring for, providing for, supervising or protecting the child;

(c) the child has been sexually abused or sexually exploited, by the person having charge of the child or by another person where the person having charge of the child knows or should know of the possibility of sexual abuse or sexual exploitation and fails to protect the child;

(d) there is a risk that the child is likely to be sexually abused or sexually exploited as described in clause (c);

(f) the child has suffered emotional harm, demonstrated by serious,

(i) anxiety,

(ii) depression,

(iii) withdrawal,

(iv) self-destructive or aggressive behaviour, or

(v) delayed development,

and there are reasonable grounds to believe that the emotional harm suffered by the child results from the actions, failure to act or pattern of neglect on the part of the child's parent or the person having charge of the child;

(h) there is a risk that the child is likely to suffer emotional harm of the kind described in subclause (f) (i), (ii), (iii), (iv) or (v) resulting from the actions, failure to act or pattern of neglect on the part of the child's parent or the person having charge of the child.

[13] This is not a hearing to determine whether or not B.M. is actually in need of protection, but if there are reasonable and probable grounds to believe she is. Justice Chappel in K.A.J. v. Children's Aid Society of Hamilton defines the phrase "reasonable and probable grounds to believe" as requiring a higher standard of proof than mere suspicion. However, it does not create a threshold of establishing a prima facie case. Reasonable grounds are those which are founded upon sound and logical thinking, and probable means "very likely". Accordingly, "reasonable and probable grounds" must be found from "sound, logical thought which leads to a conclusion that is very likely correct".

[14] The Society has been actively involved with the child, B.M., including monitoring the placement of B.M. with her father. As indicated in the society workers' affidavits, there are numerous concerns regarding the father's care of B.M. as follows:

• In July, 2020, the Society received a report from B.M.'s family doctor, Dr. Kaushik that the mother reported to him that B.M. returned home after visits with her father with wet pants and a rash in her groin area; B.M. disclosed that her father yells at her; and on one occasion B.M. called her mother at 11 p.m. saying that her father had not fed her and she was hungry. During this investigation, B.M. confirmed with the society worker that her father yells at her and his home was dirty.
• The father has not always been cooperative with the Society, including not permitting the society worker to visit his home on several occasions.
• On February 9, 2021, the Guelph police responded to numerous calls about a domestic incident between the father and B.M. as the father was observed to be yelling at B.M. and pushing her around. B.M. was having behavourial issues while being taken to her counsellor and the father became frustrated. On several occasions, B.M. attempted to run away from her father into traffic and the father had to grab B.M. to keep her off of the road. The father admitted to police that he was overwhelmed after obtaining custody of B.M.
• In February, 2021, the Society observed the father's home to be dirty with clothes scattered on the floor. The bed in the main area of the home had no sheets on it and B.M. was sleeping on a couch. B.M. advised the worker that she wanted to reside with her grandmother as "it is safe there" and did not want her father to yell at her. When the worker met with B.M. in March, 2021 at the grandmother's home, she appeared more relaxed and less stressed. The Society verified concerns regarding the father's caregiving skills and the file remained open.
• The paternal grandmother has attempted to support the father through financial support, purchasing for him new bedsheets, pillowcases, towels, cleaning supplies, toiletries and shoes for B.M. On numerous occasions the paternal grandmother has also cleaned the father's home.
• During a meeting with a society worker on July 30, 2021, the father was dysregulated. He fluctuated from being angry to crying. B.M. appeared to be in a caregiving role to her father telling him not to worry and that the society worker was there to help him.
• The father continued to struggle to keep his apartment clean. The society worker has observed dirty bed sheets or no bed sheets on the beds, kitchen flies, food and clothes on the floor and a dirty bathroom. Since B.M. was placed with her father at the end of January, 2021, the Society has directed that B.M. stay with either her maternal or paternal grandmother on two occasions in June and from July 29 to August 24 2021 while the father cleaned his home. The father does not dispute that B.M. had to be removed from his care due to issues regarding the cleanliness of his home. However, the society permitted B.M. to return to her father's care on August 24, 2021.

[15] The grandmother also reported that often B.M. wears dirty clothes and is not clean and recently B.M. had an extreme infestation of lice. B.M. has been diagnosed with hyperactivity disorder, was put on medication, but this medication was stopped. B.M. continues to have some challenging behavioral problems, which her doctor, Dr. Kaushik believes may be due to the inconsistency in her caregivers and exposure to adult conflict.

[16] The family met with the Society in March 2021 to express their concerns regarding the father's care of B.M. including that the father continuously is angry with and yells at B.M.; and that he has been diagnosed with Asperger's Syndrome and Tourette's Syndrome and has not sought treatment. At the meeting in March, 2021, the Society set bottom lines for B.M. to safely remain in the care of her father. The father's main supports are the maternal and paternal grandmothers. One of the Society's bottom lines was that the father will maintain a healthy and respectful relationship with the maternal and paternal grandmothers and will reach out to them when he struggles to provide care for B.M. However, the father has never permitted the maternal grandmother to attend in his home. The father has not permitted the paternal grandmother to attend at his home since October 25, 2021 and has cut off all communication with both grandmothers.

[17] The Society acknowledges positive steps that the father has taken since B.M. was placed in his care. The father was attending counselling and completed the Circle of Security program. He ensured that B.M. attended dental and doctor's appointments. However, as noted by the clinical support worker working with the father, there has been a recent decline in the father's care of B.M.

[18] Ms. Tamara Highgate, the society clinical support worker, has worked with the father since July, 2021. In an affidavit sworn January 4, 2022, and as outlined in her notes, Ms. Highgate indicates that she has seen a deterioration in the past several months of the father's care of B.M., as evidenced by the following:

• B.M. teacher originally reported that in September, 2021 B.M. was attending school consistently, was clean, wore clean clothes and had a healthy lunch. However, by December, 2021, it was reported that school personnel feed B.M. breakfast and lunch and that B.M.'s attention span had decreased, and she was struggling to focus. B.M. is often late for school.
• Ms. Highgate has only been able to attend at the father's home twice since July, 2021 as the father has only agreed to meet by phone or video.
• Ms. Highgate is concerned that the father struggles to understand and pick up on B.M.'s cues including that she needs comfort and assistance with her feelings.
• B.M. has recently been infested with lice.

[19] The Society has expressed serious concerns about the recent decline in the father's care of B.M. and does not dispute the concerns raised by the grandmother. At the hearing, the Society acknowledged that they are very close to starting a Protection Application and has no concerns with B.M. being placed in the grandmother's care. It is discretionary whether or not the Society commences a Protection Application in some circumstances when a child has not been brought to a place of safety. The Society has been actively involved with B.M. and this is not a case where the Society has failed in its duty to properly investigate the concerns and take appropriate measures to ensure B.M.'s safety and well-being.

[20] I find that there are reasonable and probable grounds that B.M. is in need of protection, at minimum pursuant to a risk of physical harm due to a pattern of neglect of the father's care of her. This is not a mere suspicion of harm. The Society has verified concerns regarding the father's caregiving skills and maintained an open file since B.M. was placed in his care at the end of January, 2021. The father has struggled with B.M. in his care since that time and she has been removed from his care twice due to concerns of neglect. Recently, the Society has increasing concerns again regarding B.M. remaining in the father's care and has contemplated commencing a Protection Application. The father is not following through with maintaining contact with his support system and often does not permit society workers into his home to monitor B.M.'s placement with him.

[21] I find that the threshold test in s. 81(4)(a) has been met.

Is court intervention under the CYFSA required to ensure that B.M. Is adequately protected?

[22] Pursuant to the second part of the threshold test in s. 81 (4)(b), I must also find that B.M. cannot be protected adequately otherwise than by being brought before the court.

[23] Section 2 of the CYFSA defines court as the "Ontario Court of Justice or the Family court of the Superior Court of Justice". The child, B.M. is already before the Ontario Court of Justice pursuant to the CLRA with the next return date of April 20, 2022 for a settlement conference. Both a lawyer and clinician have been appointed to represent B.M. in the CLRA proceedings. Orders have been made in the CLRA proceedings to protect B.M. including placing her with the father, and that the mother's partner, Mr. L not be left alone with B.M.

[24] However, neither the grandmother nor the Society are parties to the CLRA proceedings, although the grandmother could have made a motion to request that status. The participation of both the grandmother and the Society in proceedings is required to put all of the relevant information before the court to ensure B.M. is adequately protected. Due to the recent decline in the father's care of B.M., the father's pattern of refusing to cooperate with the Society, and the fact that he has cut off all communication with is support systems since at least October 25, 2021, I agree that even a placement of B.M. with her father needs further terms to ensure B.M. is protected and more active involvement by the Society.

[25] B.M.'s voice needs to be heard. If an order is made for the involvement of the Office of the Children's Lawyer in CYFSA proceedings, I would assume there could be an easy transition to continue the present involvement of the OCL for B.M., just in different proceedings.

[26] I am cognizant that child protection cases involved the intrusion of the state into the autonomy of family life. However, the Society has already been involved with the father for over a year and since B.M. was placed with him in January, 2021. As stated by Justice Sherr in Catholic Children's Aid Society of Toronto v. R.M. the primary objectives under the CYFSA to protect children and help parents care for their children in the least intrusive manner appropriate in the circumstances are different than the primary objectives in domestic legislation which is designed to assist families in addressing issues that arise from the breakdown of relationships or the separation of spouses.

[27] In this case, I find that the primary objectives under the CYFSA will protect B.M. more than the primary objectives under the CLRA, and that B.M. cannot be protected other than bringing the matter before the court pursuant to the CYFSA. Therefore, the second test pursuant to s. 81(4)(b) has also been met.

[28] On the evidence before me, I do not find that B.M. needs to be brought to a place of safety at this point, but a temporary care and custody hearing should be scheduled to determine her placement and if her placement should be subject to terms of supervision.

Order:

[29] Order:

1. The threshold tests pursuant to s. 81(4)(a) and (b) have been met for a Protection Application to be commenced.
2. There shall be an OCL order made pursuant to the CYFSA matter for the child, B.M.
3. The CLRA proceedings between the parties A.M. and J.S. with respect to the child, B.M. shall be stayed pursuant to s. 103 of the CYFSA.
4. This matter was previously adjourned to February 4, 2022 at 11 a.m. to be spoken to and to schedule next steps, with a tentative date for a temporary care hearing to be March 3 at 2:15 p.m.

Released: January 25, 2022 Signed: Justice K. S. Neill