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: 2023 09 13 COURT FILE No.: FO-23-40

BETWEEN:

LINCK Child, Youth and Family Supports Applicant

— AND —

M.J. and J.H. Respondents

Before: Justice R. B. Horton

Heard on: August 11, 2023 Reasons for Decision on Motion released on: September 13, 2023

Counsel: Ms. Nicole Powers........................................................................ counsel for the Applicant Ms. M. DiCarlo................................................................ counsel for the Respondent, M. J. No appearance by or on behalf of J.H.

HORTON J.:

Background

[1] LINCK Child, Youth and Family Supports (the “Society”) has brought a motion seeking an order that the child, S.H., born […], 2020, be placed in the temporary care and custody of C.D. and J.S., subject to the supervision of the Society, with access to the Respondent Mother three (3) times per week, supervised by the Society or a Society approved third-party.

[2] The Respondent Father has not actively participated within these proceedings and has not served or filed responding material to the Society’s motion or Application.

[3] The Respondent Mother opposes the Society’s motion and has filed responding materials to this motion. She seeks an order that the child be placed in her temporary care subject to the supervision of the Society and appropriate terms and conditions.

Legal Considerations on Temporary Care and Custody Motion

[4] The legal test to be applied on this motion is set out in subsections 94 (2), (4) and (5) of the Child, Youth and Family Services Act (the Act). They read as follows:

94(2) where hearing is adjourned, the court shall make a temporary order for care and custody providing that the children,

(a) remain in or be returned to the care and custody of the person who had charge of the children 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 scent 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.

[5] At a 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 a child is returned to the Respondent, it is more probable than not that he or she will suffer harm. Further, the onus is on the Society to establish that the child cannot be adequately protected by terms of conditions of an interim supervision order. (Children’s Aid Society of Ottawa-Carleton v. T, [2000] O.J. No. 2273 (SCJ)). This is a two-part test that the Society is required to meet.

[6] A court must choose the order that is the least disruptive placement consistent with adequate protection of the child(ren) pursuant to 1(2) of the Act. (Children’s Aid Society of Hamilton v. B.D. and F.T.M., 2012 ONSC 2490).

[7] 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. (Catholic Children's Aid Society of Toronto v. J.O., 2012 ONCJ 201).

[8] 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. (Family and Children's Services of St. Thomas and Elgin County v. R.O., 2006 ONCJ 100).

[9] The Divisional Court has held that a Society, seeking an order for temporary Society care at this early stage of the case, has only to demonstrate that it has reasonable grounds to believe that there is a protection risk for the child that justifies Society intervention. (L.D. v. Durham Children’s Aid Society, [2005] O.J. No. 5050 (Ont. Div. Ct.)).

[10] At this stage the burden on the Society does not go as high as showing that on a balance of probabilities there is an actual risk to the child in the parent’s care. (Catholic Children's Aid Society of Toronto v. M.L.R., 2011 ONCJ 100).

Supervision Orders

[11] Subsection 94 (6) applies to an order being made in accordance with clause 94 (2)(b) for a temporary supervision order. (Catholic Children’s Aid Society of Hamilton v. C.R.P., 2011 ONSC 2090).

[12] The onus of proof or criteria are the same when the Society is requesting a non-removal order pursuant to clause 94(2)(b) of the Act or a removal order pursuant to clauses 94(2) (c) or (d) of the Act - the issue to be determined in making the non-removal order under clause 94(2)(b) is whether or not the Society has reasonable grounds to believe that there is a probable risk that the child will suffer harm if reasonable terms and conditions of a supervision order are not imposed. (Children's Aid Society of Halton Region v. Z. (T.A.), 2012 ONCJ 200, para 20.).

Temporary Access

[13] Subsection 94 (8) of the Act provides that where an order is made under clause (c) or (d) of subsection 94 (2), the court may order access on any terms that it considers appropriate.

[14] In determining what order is appropriate, the court should consider the paramount purpose of the Act, being the best interests, protection and well-being of children and the secondary purposes of maintaining the integrity of the family unit, assisting families in caring for their children and recognizing the least disruptive action consistent with the best interests of the children. In assessing best interests, the court should consider the relevant factors set out in subsection 74(3) of the Act. (Jewish Family and Child Service of Greater Toronto v. H.B.S., 2012 ONCJ 600).

Materials Considered

[15] In making my determination I have considered the following evidence: the Society’s Motion at Tab 2, as amended by Order of Vickerd, J. dated June 7, 2023 placing the child in kinship care, the supporting affidavits of Child Protection Worker, Erin Smith sworn March 20, 2023, Child and Family Wellbeing Worker, Tracy Shadd-Robinson, sworn March 20, 2023, Child Protection Worker, Louise Prelaz, sworn May 19, 2023, the Consent of Kin to placement date June 5, 2023 and the Plan of Care of the Society together with the affidavit of the Respondent Mother sworn July 27, 2023.

Analysis

[16] The Society argues three primary concerns or issues which they submit prevents the child S., currently three years of age, being returned to her Mother’s primary care at this time:

i. The condition of the Mother’s home; ii. the Mother’s mental health and more specifically her anger issues; and iii. the Mother’s interaction with the child.

(i) Mother’s Home

[17] The Society submits that the condition of the Mother’s home has always been a concern. They note that on or about December 20, 2022, these concerns rose to a level which created a significant risk to the child's well-being. In particular, the Society sets forth within their affidavit material the existence of rotting food, both on counters and floors in the home, garbage strewn throughout the residence, items blocking hallways and interfering with the ability to navigate through the home and urine and feces Inc. on the floor and walls of the home.

[18] The Respondent Mother acknowledges the poor condition of the home and offers as an explanation that this was solely the result of her having been ill and unable to keep up with the care of the home. On the evidence received however it is apparent that the condition of the home, while always a concern, deteriorated over time to the deplorable level described by the Society.

Were the Mother’s Charter Rights Violated?

[19] Photographs of the home were taken by the Mother and provided to the Society. The Mother advises that this was the result of the Society worker having attempted to take photographs within her home and her having refused though agreeing to take the photographs herself. The Mother seeks to have these photographs struck from the Society’s affidavit material arguing that this evidence was gathered by the Society in breach of her rights pursuant to s. 8 of the Charter.

[20] It is inappropriate for the Society to enter residence and proceed to take photographs absent authorization. In this case the Mother refused to allow the worker to do so, though agreed she would provide the Society with photographs. The concern of course relates to the Respondent Mother who was not advised of her rights to refuse or to obtain independent legal advice prior to this step being taken. (See: R. v. Wills, [1992] 7 O.R. (3d) 337, 520 O.A.C. 321, 9 C.C.C. (3d) 529 (Ont. C.A.)).

[21] It can be said plainly that acquiescence and compliance to the request of the Society Worker, while certainly a failure to object, this cannot be equated to consent.

[22] The Respondent Mother argues that this is a serious infringement of her rights by the state, referencing Chatham-Kent Children's Services v. J.K. and F.H.D., 2009 ONCJ 589 in support of this argument.

[23] There is no dispute that the Society exercises the power of the State. (See: Children's Aid Society of London and Middlesex v. H. (T.), [1992] 41 R.F.L. (3d) 122 (Ont. Prov. Div.)).

[24] While the Society contends they did nothing to force or coerce the Mother into providing photographs and that the Mother provided those photographs voluntarily, I do not find this to be either a fair or an accurate assessment. The Respondent Mother did not consent to these photographs being taken by the Society worker. She certainly cannot be said to have provided her informed consent nor was she made aware of her right to refuse the Society’s request or to obtain independent legal advice.

[25] While the Society has the right, pursuant to the legislation, to enter premises and to search for and remove a child, the legislation does not extend their right to search for evidence.

[26] This is not to suggest that it is unreasonable for the Society to conduct a limited review of a residence to confirm the general validity of the allegations and whether the removal of a child is warranted.

[27] Whether or not the actions of the Society were unreasonable in seeking to obtain photographs depends, in my view, on whether such a step was essential to carrying out the function of the Society. The Society, within their affidavit material, clearly articulates the concerns at the time of the worker’s attendance in the home and given this ability the further step of demanding photographs was unreasonable.

[28] Having determined an infringement of the Mother’s Charter rights by the Society it is necessary to determine whether to exclude this evidence. R. v. Grant, 2009 SCC 32, 391 N.R. 1, 253 O.A.C. 124, 309 D.L.R. (4th)1, 245 C.C.C. (3d) 1, S.C.J. No. 32 sets out that in determining whether exclusion of evidence pursuant to s. 24(2) of the Charter a court must balance the effect of admission of the evidence having regard to,

i. The seriousness of the Charter infringing conduct of the State; ii. The impact of the breach on the Charter protected interests of the accused; and iii. Society’s interest in the adjudication of the case on the merits.

Seriousness of Conduct by Society:

[29] It is appropriate to distinguish the application of the Charter within criminal proceedings and child protection proceedings. Children are of the most vulnerable in our community. If the child’s right to be protected from abuse comes into conflict with the Charter rights of their parents, courts have most often ruled favoring the rights of the child.

[30] In the case of Family and Children's Services of St. Thomas and Elgin County v. F. (W.), [2003] 54117, 36 R.F.L. (5th) 310, [2003] O.J. No. 717, 2003 Carswell-Ont 608, (Ont. C.J.), Madam Justice Schnall stated,

“Where the needs and interests of the children to be safeguarded from abuse of any form come into potential conflict with the rights of the parents to freedom of security of the person or privacy, the children must come first.”

[31] Similarly, Justice Binder, within V.S. and D.W. v. Alberta Director of Child Welfare, 2004 ABQB 892, [2004] ABQB 892, 373 A.R. 201, 38 Alta. L.R. (4th) 143, 125 C.R.R. (2d) 196, 2004 Carswell Alta. 1722 (Alta. Q.B.), stated at paragraph 70,

“It is possible that admitting relevant evidence obtained in violation of parents’ rights would tend to bring the administration of justice into disrepute in rare and exceptional circumstances however one would be hard pressed to think of a realistic example. Regardless, as a matter of public policy what is determinative is that children must be protected rather than punished by the exclusion of evidence. Whatever remedy might be ordered by a court in the case of a Charter breach by a child welfare worker, police officer or another authority in the child protection context, it should in no way prejudice the child by limiting access to the true facts of the child’s situation.”

[32] This reasoning suggests consideration be given to whether the exclusion of evidence in a child protection proceeding will place the child at risk of harm. In the circumstances of the current proceedings before this Court, consideration must be given to whether the evidence obtained in breach of the Charter is essential to the proper determination of the child’s wellbeing or simply adds emphasis to the concerns enunciated within the narrative of the Society Worker’s affidavit evidence.

[33] A court must be cautious in admitting evidence in a child protection proceeding solely because it relates to concerns for a child. That, in my view, can send the wrong message to child protection agencies that they are at liberty to obtain information without concern for the Charter or the exclusion of evidence obtained in breach of that doctrine. Rather the Court must balance the concerns for the protection of children and the parent’s Charter rights.

[34] In child protection cases the court is in need, and is entitled, to receive all relevant evidence.

[35] I view the breach of the Respondent’s Charter rights to be serious. The conduct of the worker who attended the home was, in my view, based upon legitimate concern for the health and welfare of the child. It is fair to say that the photographs taken do not extend beyond that which was readily observable by the worker.

[36] The court cannot however condone the State, including Children’s Aid Societies, in carrying out violations of Charter protected rights. A full inquiry is necessary to ensure that the potential state actions are balanced with the rights of parents which deserve to be respected.

Impact of Violation upon the Respondent Mother:

[37] In relation to the seriousness of the breach, it is clear that the worker never turned their mind to the impact of this demand for photographs upon the Mother’s rights. I do not find this to have been intentional or deliberate but this does not reduce the seriousness.

[38] How does this breach of the Mother’s Charter protected rights impact her? There is a high level of privacy which one is entitled to expect within one’s home. The worker made demands for photographs and as stated above, the details photographed were largely, if not fully, in plain view. I do not find, in these particular circumstances, that the impact on the Mother was overtly significant.

Public’s Interest in Determination of Case:

[39] The final stage of inquiry addresses the public’s interest determining this case on its merit. The negative impact of the admission of the evidence on the repute of the administration of justice, the impact of failing to admit this evidence and the requirement of the court to protect children must be weighed.

[40] In child protection matters this court must consider how the exclusion of trustworthy evidence of the child’s circumstances might place the child at risk of harm.

[41] The photographs taken are highly reliable, favouring admission. However, the affidavit evidence of the worker fully sets out within its narrative the condition of the Respondent Mother’s home. The photographs add very little to the overall evidence. I do not find that excluding this evidence would place the child at risk of harm nor would it significantly impact the Society’s case.

Exclusion of Photographs

[42] I find the photographs are required to be excluded from the evidence of the Society.

[43] At the time of the Society’s attendance at the home of the Respondent Mother, and apprehension of the child, there is no doubt the condition of the home was deplorable. The Mother’s explanation of illness and that 3rd parties were, at least partially, responsible is simply unsatisfactory. Her responsibility is the well-being of a very young child. The conditions within the home, at that time, fell well below any level of acceptability.

[44] The Mother claims the residence now is in an acceptable condition for the child to return. The Society cannot dispute this, though notes that this is not surprising as the child is not present in the home, and that this likely assisted the Mother with the additional time needed for proper maintenance of the home.

(ii) Mother’s Mental Health/Anger Issues

[45] The Respondent Mother acknowledges having anger issues. This is evidenced in her conflict with Society workers and third parties, the holes punched into the walls of the residence admittedly by the Mother, and by the threats of the Respondent directed at the Family Support Worker. These situations arose in the presence of the child.

[46] The Mother has shown a level of insight to her mental health issues by engaging in counselling and having done so in advance of the child having been brought into care. Additionally, the Respondent Mother has executed consents to the release of her information from her therapists this is indicative of a willingness of the Mother to be cooperative.

[47] There is an indication by the Respondent Mother of having received various diagnoses including Post-Traumatic Stress Disorder, anxiety and depression. The current indication, though no supporting evidence has been received, is that with medication these are being maintained and she is stable. She further advises that she continues to be involved with a treatment team and has engaged in Dialectal Behaviour Therapy. The Respondent Mother is attempting to develop the necessary coping strategies to address her past personal trauma from her experiences as a child in the child welfare system and in working with the Society at this time.

[48] The Respondent Mother’s recent steps in addressing her mental health issues are positive and deserving of accolade. These steps however are relatively recent with her having first met with her psychiatrist March 8, 2023, and having commenced anger management counselling May 2, 2023. It is vital that the Respondent continue to receive counselling and treatment for her mental health and that she establishes a period of consistency in maintaining both her treatment and her success.

(iii) Mother’s Interaction with Child

[49] The Society submits concern with the Mother’s ability to provide appropriate care for the child, and with respect to her interaction with the child.

[50] The Society states that the Mother has been observed yelling at the child, and handling the child aggressively to redirect her. The Respondent Mother has acknowledged this behaviour.

[51] The Society argues that, the Mother is unable to appreciate the age and stage of development of her daughter, who is but 3 years of age. The affidavit of the Society sets out an occasion when the worker was attending the Mother’s residence, and could hear from the parking area, the Mother yelling at her daughter. This was corroborated by police upon their attendance at the residence.

[52] It is evident that the Respondent Mother has exhibited, on multiple occasions, a short temper in addressing her daughter’s behaviours. It appears she is without the skills, at this time, to properly control her manner of response.

[53] The Respondent Mother submits that she suspects that her daughter has autism and that an assessment is required. The Respondent sets out within her affidavit her reasoning for this suspicion, which may support a diagnosis as being plausible, but may equally support other determinations.

[54] Whether or not this child suffers from autism is not at issue; it is evident the child demonstrates behavioural issues. Children with disabilities must have support and in particular they require, and are entitled to, parental support. The Respondent Mother is in a clear need to appreciate her daughter’s needs in this regard and to improve in her own ability to properly respond both to the child’s needs and to the child’s behavioural issues. To date there remains concern of her ability to do so in a positive and mild focused manner.

Conclusion and Order

[55] Based upon a review of the evidence and having considered the applicable statutory provisions, this court finds that the Respondent Mother is unable to meet her parenting responsibility at this time. An order, imposing terms and conditions upon the Respondent Mother which address the concerns of the Society can not to be imposed which would allow the child to be returned to the Mother’s care at this time.

[56] The Respondent Mother must address her mental health well-being, specifically her anger issues, in a manner that will ensure the emotional and physical safety of the child does not continue to be placed at risk.

[57] Accordingly, the child, S.H., born […], 2000 shall continue to reside in the temporary care of C.D and J.S. (“Kinship Placement”), subject to the supervision LINCK Child, Youth and Family Supports, on the following terms and conditions:

i. The Respondent Mother and Kinship Placement shall allow the Society worker access to their home(s) on both an announced and unannounced basis; ii. the Respondent Mother and Kinship Placement shall allow the Society worker independent access to the child as requested; iii. the Respondent Mother shall sign all releases pertaining to herself or the child as requested by the Society and in consultation with counsel; iv. the Respondent Mother and Kinship Placement shall notify the Society in advance of any change in address or contact information; v. the Respondent Mother shall have access with the child, as arranged by the Society or the Society’s designate, a minimum of three (3) times per week, such access may be supervised or unsupervised at the discretion of the Society; vi. the Respondent Mother shall participate in services with the Society’s Child and Family Well-Being Worker and shall follow all reasonable recommendations made by such worker; vii. the Respondent Mother shall participate in mental health and anger management counselling and shall follow all reasonable recommendations bayed by such counsellors;

[58] In accordance with the determination made above, the photographs contained within the affidavit of Ms. Erin Smith, sworn March 20, 2023, as Exhibits “C” and “D” are struck and shall be removed by the Applicant Society from the Continuing Record. Any reference to such Exhibits within the Affidavit shall also be struck.

[59] This matter is adjourned to October 13, 2023, at 9:30 AM to be spoken to via zoom.

Released: September 13, 2023 Signed: Justice R. B. Horton