WARNING
The court hearing this matter directs that the following notice be attached to the file:
This is a case under Part V of the Child, Youth and Family Services Act, 2017, (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:
87.— (7) Order excluding media representatives or prohibiting publication. — Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding, the court may make an order,
( c ) prohibiting the publication of a report of the hearing or a specified part of the hearing.
(8) Prohibition re identifying child. — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.
(9) Prohibition re identifying person charged .— The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.
142.— (3) Offences re publication. — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)( c ) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
Court File and Parties
Court File No.: FO-23-0000067
ONTARIO COURT OF JUSTICE
FAMILY COURT
IN THE MATTER OF the Child, Youth and Family Services Act, R.S.O. 1990, c.11
AND IN THE MATTER OF: R. Lydia Heinze, a child apparently in need of protection.
B E T W E E N:
FAMILY AND CHILDREN’S SERVICES (operated by The Children’s Aid Society Of Guelph and Wellington County) Applicant
- and -
J.S, J.H., S.S. AND M.L. Respondents
Reasons for Judgment
BEFORE THE HONOURABLE JUSTICE S. PAULL
On December 1, 2023, at GUELPH, Ontario
Appearances:
A. Circelli Agent for A. Quadry, Counsel for the Applicant J. MacLennan Counsel for J. S. J. Krashinsky Counsel for J. H. M. Poole Counsel for S.S. and M.L.
FRIDAY, DECEMBER 1, 2023
PAULL, J. (Orally):
Here are the Reasons for Judgment on the Temporary Care and Custody Motion before the court. The Society brought a motion seeking an order that R., born […], 2018, who has recently turned five be placed in the temporary care and custody of her aunt and uncle with access to the parents being at the discretion of the Society.
The mother and the aunt and uncle support this order. Father opposes the Society’s motion, seeks an order returning the child to his care or, alternatively, unsupervised and overnight access or expanded access.
The legal test for me to apply on this motion is set out in subsection 94(10) of the Child, Youth and Family Services Act. In 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 the child is returned to the respondents 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 and conditions of an interim supervision order. Simply stated, this is a two part test that the Society has to meet.
The Court must choose the order that is the least disruptive placement consistent with adequate protection of the child. The degree of intrusiveness of the Society intervention and the interim protection ordered by the court should be proportional to the degree of risk.
Section 94(10) of the Act permits the court to admit and act on evidence that it considers credible and trustworthy in the circumstances. In determining what evidence is credible and trustworthy, the evidence in its entirety must be viewed together. Evidence that may not be credible or trustworthy when viewed in isolation might reach that threshold when examined in the context of other evidence. The Divisional Court has held that the Society when seeking a temporary Society care order at this early stage has only to demonstrate that it has reasonable grounds to believe that there is a protection risk to the child that justifies intervention. The burden at this stage on the Society does not go as high as showing that on a balance of probability there is actual risk to the child in the parent’s care.
With respect to temporary access, should the court make an order placing the child outside the parents’ care, the Act provides that the court may order access on terms that it considers appropriate and in determining what order is appropriate the court should consider the paramount purpose of the Act being the best interest, 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 children’s interests.
If the Society is seeking to impose restrictions on the parents’ contact, should the child not be returned to either of their care, it must demonstrate that it is necessary in the circumstances and proportionate to the risks that are demonstrably established. In addition to considering the submissions of counsel I have reviewed the affidavits of the parties, the Document Brief and the factum.
With respect to the background the Society has been involved almost constantly with this family since 2018 when mother was pregnant with R. The state of the home was an ongoing concern. Animal urine and feces present in the home were a consistent issue. There were also concerns about father’s alcohol use, the parents’ mental health, and the children’s health was also an issue based on concerns that it was not being adequately addressed. There appears to have been a pattern of modest improvement by the parents then back-sliding to an unhygienic state.
On December 1st of 2022 there was a referral from the Fire Department that was received about the deplorable conditions of the home which were confirmed in the independent reports from the third parties filed with this motion.
On January 25th, 2023 E. (who was born […], 2021), the parties’ other child, tragically passed away from as yet unknown reasons. The coroner has indicated his death was caused by positional asphyxiation. This is still under investigation and the report has not yet been received by the court. He passed away overnight in the care of his parents. The coroner had concerns about the state of the home. The parents indicated in their interview with police that they had consumed alcohol with friends the night before. R. has not been in the care of her parents since that time. The family doctor outlines numerous missed medical appointments. The children were behind on vaccines. There was lack of follow through including referrals for E. to a heart specialist.
The parties separated in July of 2023 and now have independent plans before the court and are now making very serious allegations against the other of domestic violence and substance use.
Since January of 2023, and particularly since the separation, mother has experienced housing instability. She was in a shelter for July 14th to October 6th, then at her father’s home although she was required to leave when R. was present. She was on a waiting list for housing. I understand she may have housing now. She acknowledges some inconsistency in her phone contact with R. and it is clear that since separation she has accessed some personal supports. These were received through the shelter including from Dr. Lawrence. There is some independent confirmation of her engagement in the summer and that she is attempting to address her issues.
Father, who seeks to have R. placed in his care, disputes the allegations of the Children’s Aid Society and mother. In August 2023 he has been charged criminally with serious charges relating to mother which he disputes. He acknowledges a history of alcoholism and indicates he has not consumed since January of 2023. He has just started in November of this year relapse prevention as well as EMDR therapy and is apparently on the waiting list for other supports. He indicates he maintained the home appropriately and that this is not an issue. He also disputes being inappropriate at times in his access to R.
For the following reasons the Society has established that there are reasonable grounds to conclude that there is a real possibility of harm if the child is returned to either of her parents.
I am satisfied on the evidence, particularly in the third party records, that R. is at risk of harm in either of her parents’ care. There is a long history of verified concerns. I am satisfied that the state of the home presents a risk of harm to the child. The state of the family home has been an issue for years, with the parents making modest gains and then slipping backwards. This has been confirmed by virtually everybody who has had involvement with this family, the workers repeated observations, and the independent records of the Fire Department who made a referral December 1st of 2023 reporting a state of squalor and unsafe conditions in the home including blocked exits. The Coroner who was in the home on the night that E. passed away expressed concerns about the state of the home. The Coroner noted the smell of urine and feces with flies present in the child’s very messy bedroom.
I am also satisfied that R. is at risk of harm from neglect. The school reported at the time of the Society intervention when E. passed away that R. had only attended school one or two days a week from September to February, missing 52 days of school, with frequent lates. She generally did not bring a lunch and when she did the school observed that it was, on occasion, mouldy.
I am also satisfied that the evidence established a risk of harm for medical neglect. The independent records of the family doctor confirmed the multitude of missed medical appointments, lack of follow through, missing vaccines for both children, and, more importantly for E. missed appointments with the heart specialist. The family doctor, Dr. St. Amand, confirmed that there was a multitude of specialist referrals which were not followed up on. As previously noted, E. tragically passed away in January this year, apparently of positional asphyxiation. The circumstances are still under investigation by both the Coroner, Dr. Mensoza, and the police. However, pending the results of the Coroner’s inquiry, the available evidence points to circumstances of risk surrounding that tragic event including the following. According to police records the parents were in the home and acknowledged alcohol consumption with friends that evening. Given their own subsequent allegations of the other’s substance abuse and the independent evidence supporting long term substance use issues, consuming alcohol in a care giving role contributed to a risk of harm.
Further, depending on the results of the Coroner’s investigation, the chronic lack of follow through with medical care, particularly with a heart specialist for E. created circumstances of a risk of harm. Also, the parents advised that after checking on the children at approximately 3:00 a.m. they did not check on them again until 11:00 a.m. the next morning at which time they discovered that E. had passed away. The decision to not check on a baby and a three year old until that late in the morning creates a concern for the level of supervision. This risk is also reflected in the historic medical records where a McMaster Hospital Treatment Assessment verified a lack of supervision resulting in injuries to R. in 2019.
The parents’ response to these serious concerns is essentially to either deny the seriousness or to place the blame squarely on the other parent. These are insufficient in the circumstances, particularly given the third party records, to refute the level of risk that was present in the home.
Further, now that they are separated they make very serious allegations of both violence, and substance use against the other which raise further concerns. It seems both parents have serious and long-standing personal issues which only heighten the level of risk that was present in the home. At the very least the parties’ own evidence of the other since separation raises serious concerns which they did not disclose or adequately address during the relationship. This represents a risk of harm for a failure to protect. The parents’ denial or minimization of the seriousness of the risk is simply not credible. The same observations and concerns have been noted over a long period of time by virtually everyone who has had contact with the family: the Fire Department, the Police, the school, family doctor, Coroner. These observations are consistent with the Society workers’ observations particularly related to the squalid state of their home at times. Overall I conclude that the available evidence establishes a multitude of areas which combined to establish that R. is at risk of harm sufficient to justify Society intervention.
Further, I find that the Society has established the child cannot be protected by terms and conditions of a supervision order with either parent, although at this time only father is seeking placement of R. in his care.
I am satisfied that at present neither parent possess insight into their own issues or that they have demonstrably addressed these issues to an extent which would mitigate the risks enough to consider a supervision order, of even unsupervised access at this time. Since intervention the state of the home continues to be an issue. On March 1st, 2023 prior to separation the parties now had four dogs. Animal urine and a multitude of fruit flies were observed. On July 4th, 2023 on an unannounced home visit the home was, once again, in an unacceptable state including multiple dog feces on the floor.
The parties separated in July of 2023. Mother is now working with some supports but has missed some counselling appointments in August and September of 2023. She has had some housing instability being in a shelter from July to October and then at her father’s home. It seems recently she has obtained housing. She acknowledges some inconsistency in her phone contact with R.
Following the separation the father on August 3rd, 2023 now faces serious criminal charges related to mother which he disputes. There is no evidence until very recently that since Society intervention in this matter following E.’s death in January of 2023 that he has acknowledged or otherwise followed through with any supports. He just started Relapse Prevention in November as well as EMDR therapy in November and is on the waiting list for other supports. In August of 2023 the worker observed father’s home to once again be in an unhygienic state. He also appears to have missed a significant number of his scheduled phone calls with R.
The parties are in the very early stages of addressing these issues. There is no evidence of progress. Given the serious and long-standing nature of the risks, much more follow through and demonstrable progress is required to support a return or to move to unsupervised access. I also note that R. and her parents have been profoundly traumatized, understandably, by the death of E. Supports for all of them to address this trauma should be engaged.
The evidence supports that supervised access continue given the level of risk and the very recent efforts to address the issues. Supervision of access will provide a safer bridging period during which parental deficits can be assessed and, if possible, repaired. Supervised access is clearly indicated here where parental judgment is impaired and there is a history and evidence of neglect. Supervised access is not intended to be a long-term arrangement. It is beneficial for a child whose safety requires it until such time as the parents are sufficiently rehabilitated and the child is no longer at risk.
The Society shall maintain discretion over access with the ability to approve third party supervisors, determine where access is to occur, and to progress and expand to unsupervised access if circumstances warrant. I am concerned that this child is doing all the transportation. If the Society is able to provide transportation to and from access for the parents, then in its discretion the Society may determine that it occurs in Stratford.
The applicant proposes the aunt and uncle who consent to the supervision order sought. Father raises concerns with the aunt and uncle which they and mother dispute. These include the state of their home as well as missed school. The school confirmed that by October 17th, 2023 the child had already missed 14 days. The teacher also noted that sometimes R. has an odour that may be attributed to the pets. The aunt responds that the child’s appointments and her contracting the COVID-19 virus are the reasons for these absences. Unfortunately the Society did not file a reply affidavit so this has not been confirmed. However, the Society has confirmed that the aunt and uncle are following up with medical and dental appointments for R. They did facilitate counselling for R. with Ms. Shelly Brooker and they continue to facilitate regular contact to the paternal grandmother. Overall, I find that the Society’s plan is a reasonable one and the least intrusive one that will address the protection issues that are abundantly clear on the evidence. However, the issue of the child’s hygiene and attendance in school may be a concern, as confirmed by the school. They are issues that require the Society’s active supervision and monitoring and intervention if necessary.
For oral reasons given, there will be a temporary order as follows. Pursuant to the motion at tab one, paragraphs 1(a) to (g), 2(1 to 4), the parents shall file amended answers by December 22nd, 2023. The matter is adjourned to the previously scheduled settlement conference on February 14th, 2024 at 10:00 a.m. with briefs to be filed. Is there anything further?
MR. KRASHINSKY: No. Thank you, Your Honour.
MR. POOLE: No. Thank you, Your Honour.
THE COURT: Madam Clerk, you may close court when you are ready.
COURTROOM CLERK: Thank you, Your Honour.
C O U R T A D J O U R N E D