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.

Ontario Court of Justice

Date: 2024 10 11 Court File No.: Chatham 156/22-0002

BETWEEN:

Linck Child, Youth and Family Supports Applicant,

— AND —

S.A. Respondent

Before: Justice M. Vickerd

Heard on: October 9, 2024 Reasons for Judgment released on: October 11, 2024

Counsel: Nicole Powers, counsel for the applicant society Respondent mother SA, unrepresented

Overview

[1] The following is my decision on the temporary care and custody motion advanced by Linck Child, Youth and Family Supports (“Linck”) addressed on October 9, 2024.

[2] The subject child is “Z”, presently age nine years.

[3] Linck seeks an order placing Z into the temporary care of Linck and an order for access between mother and child to be offered two times per week and other times as approved by the Society, subject to Society’s supervision in its discretion. Linck also seeks an order appointing the Office of the Children’s Lawyer to represent the child.

[4] The Respondent mother “SA” was served with Linck’s pleadings. SA opposes the relief sought by Linck. She seeks the immediate return of the child to her care. SA indicates she would abide by any order with supervision by Linck. In the alternative, she requests that Linck consider a placement of the child with extended family.

[5] There is no other respondent to the motion as no other parent to the child has been identified.

[6] At the first return of Linck’s motion on October 9, 2024, SA made a request to proceed with the temporary care hearing and leave to provide oral evidence. She indicated a desire to testify and to offer five other witnesses in support of her claims.

[7] SA’s request to proceed with the temporary care hearing and provide the court with oral evidence for the motion was granted pursuant to Family Law Rule 14(17) 3. for the following reasons:

a. SA confirms that she does not intend to retain counsel;

b. A past child protection proceeding involving SA incurred significant delay due to SA’s struggles with producing pleadings to place her evidence before the court;

c. The subject child is presently in the care of Linck, having been taken to a place of safety on October 4, 2024.

d. To accord with the provisions of the Family Law Rules, Rule 2 which provides:” The primary objective of these rules is to enable the court to deal with cases justly.” Dealing with cases justly involves:

(a) ensuring that the procedure is fair to all parties; (b) saving expense and time; (c) dealing with the case in ways that are appropriate to its importance and complexity; and (d) giving appropriate court resources to the case while taking account of the need to give resources to other cases. O. Reg. 114/99, r. 2 (3).

e. With reference to the recent case of Sarnia-Lambton Children’s Aid v. N.S., 2024 ONCJ 391 wherein Justice Pawagi emphasised the need for courts to take concrete action to avoid delay in child protection proceedings.

f. To accord with the Statement of Principles on Self-Represented Litigants and accused persons (2006) established by the Canadian Judicial Council were endorsed by the Supreme Court of Canada in Pintea v. Johns, 2017 SCC 23 and referenced in the decision of Nogdawindamin Family and Community Services v. J.N., 2024 ONCJ 376. The relevant principles include:

• Access to justice for self-represented persons requires all aspects of the court process to be, as much as possible, open, transparent, clearly defined, simple, convenient and accommodating.
• Judges and court administrators should do whatever is possible to provide a fair and impartial process and prevent an unfair disadvantage to self-represented persons.
• Self-represented persons should not be denied relief on the basis of a minor or easily rectified deficiency in their case.
• Judges should ensure that procedural and evidentiary rules are not used to unjustly hinder the legal interests of self-represented persons.

[8] Therefore, the temporary care hearing was convened on its first return date. SA testified in support of her position and was subject to cross-examination by Linck’s counsel. SA also provided evidence to the court through two other witnesses: her son ZC and her neighbour and friend JG. Linck had an opportunity to cross-examine these witnesses.

[9] The Society declined to provide any reply evidence.

[10] In addition to the oral testimony at the hearing, I also considered the Affidavit of C. Anderson sworn October 7, 2024, and past Endorsements/Orders made in prior child protection proceedings concerning Z.

[11] At the hearing in response to my inquiry, Linck confirmed that two applications were made for warrants to bring the child to a place of safety since January 2024. Consequentially, I advised the parties that I would also be reviewing Linck’s evidence in support of those applications.

Context to the Current Motion

[12] It is important to begin the analysis of this motion with the contextual background to the current circumstances of the child. The following is a summary of the history of care of Z and past child protection litigation.

[13] Z resided in her mother SA’s care for the entirety of her life until the status quo was disrupted in November 2022. At that time, Z was seven years old.

[14] In November 2022, reports were made to Linck about alleged drug use in SA’s home. Also, in November 2022, reports were made to the Sarnia-Lambton Children’s Aid Society (“SLCAS”) and to Linck by police officers citing that they were contacted by SA and her adult son ZC. ZC had removed Z from SA’s care and was refusing to return her based upon his belief that SA was abusing illicit drugs, specifically fentanyl.

[15] Throughout November and December 2022, SA sought assistance from SLCAS, Linck, the O.P.P. and other local police services to have Z returned to her care. ZC refused to return Z to her mother’s care and SA was unsupported in her efforts by the societies and police services. In relation to the allegations of illicit drug use, the mother advised that she was using prescription medications to address her anxiety and that she used marijuana to help her sleep at night. She adamantly denied any illicit drug use.

[16] When the police and societies failed to assist her in regaining care of Z, SA attended at her son’s home looking for Z. ZC continued to deny any contact between Z and SA.

[17] On December 2, 2022, society worker T. Robinet advised SA that Linck was restricting her access to Z.

[18] On December 7, 2022, Linck’s first Application and temporary care motion were advanced to the Chatham Ontario Court of Justice and were addressed by Justice L. Ross. Her Honour dismissed Linck’s motion and Application. After court, the worker T. Robinet met with ZC and advised him that Linck continued to have concerns for Z and asked him to contact Linck should SA attend at his home to retrieve Z. Also, on December 7, 2022, T. Robinet spoke with SA by telephone and told her that Linck continued to have concerns with her care of Z. Mr. Robinet advised SA that “the Court had agreed with the Society’s concerns for the child being in the mother’s care, just not with placement of the child.”

[19] On December 7, 2022, Linck began the process of a kinship assessment for alternate caregivers for Z.

[20] On January 8, 2023, Z was transitioned from ZC’s care to a maternal aunt and uncle’s care. This placement was in Essex, ON.

[21] In February 2023, Linck advanced another Child Protection Application and temporary care motion. Linck sought an interim order placing Z in the care of her maternal aunt and uncle, subject to society supervision and with supervised access to her mother to be offered one time per week.

[22] On March 1, 2023, an interim interim order was made on terms requested by Linck as SA left court before her motion was addressed. Ultimately, the temporary care motion was argued on May 3, 2023. A decision on the motion was released on May 10, 2023. An interim order was made that:

(a) The child will be returned to the mother’ care with supervision by the Society, on terms to be addressed at the next court date. (b) I strongly suggest that the society assist the mother with all its resources to secure appropriate housing, and generally adhere to its legislative mandate. (c) I am giving the society and the respondent mother one week to make arrangements and accommodations for the child’s return to the mother’s care. (d) During this period, the Respondent mother will allow the society workers to enter and inspect her home. (e) This matter will return to my court on May 17, 2023, at 9:30a.m. Society shall prepare proposed terms of supervision and work with the respondent mother to ensure that her accommodations are appropriate for the child.

[23] On May 17, 2023, a supplemental order was made that addressed the terms of supervision which applied to SA’s care of Z.

[24] In my decision on the motion, released May 10, 2023, I made findings about the Society’s interaction with this family, which included:

I find that based upon these facts presented by the Society, the Society has failed in its duties to support this family in the least intrusive manner available. The Society has failed to meet the purposes of the legislation. Its case is purely based on speculation and gossip. The evidence presented is entirely not credible nor reliable. The Society has implicitly supported the removal of the child from a mother by her brother - essentially a kidnapping - when the Society had no authority to remove the child itself. The concerns noted about the mother’s drug use are based in gossip. There is not one piece of evidence confirming that the respondent mother’s care of Z has been impacted by any drug use or that she has been neglecting the child’s needs. The only concern noted was by principal that the mother was not addressing the child’s speech impediment. There are no concerns expressed by any school authority or any other service provider that the child’s daily needs were not being met. Not a single person confirmed that Z had been exposed to drug use in her mother’s home. Also, in relation to the alleged people of concern, there is no confirmation that Z was even present when they allegedly attended. In addition to the foregoing, the respondent mother asserts that when she met with [the worker] T. Robinet, she provided him with the name and contact information for her neighbor and her sponsor. (Society relies on evidence from past neighbor) She advises that she does not believe that the worker reached out to these relevant people. As well, she was cooperative with the investigation. The Respondent mother also notes that she has not been involved with any police force in the last twelve years (except for trying to have her daughter returned to her care). I have significant concerns that the Society failed to fully investigate the allegations made, that it took no less intrusive means to address the child protection concerns it has before intervening with a motion seeking to have this child brought into care. There were no attempts made to engage in a Volumetry Services Agreement with the mother or to seek an order to place the child in mother’s care with supervision by the Society. Prior to the motion, the respondent mother was seeking assistance from Linck, Sarnia Lambton CAS, the OPP and the Chatham Kent Police Service to have Z returned to her care. Z was taken from her home by her older brother- essentially amounting to a kidnaping which was sanctioned and facilitated by the Society. This facilitation continued to occur despite Justice Ross dismissing the Society’s first child protection Application in December 2022. The situation has been further exacerbated with the Society supporting placement of the child with kin outside of this jurisdiction, in Essex, creating a further impediment to the mother’s contact with the child. She does not have transportation. No transportation was offered to her. The child has not been transported to Chatham for the exercise of access. I find that the interventions taken by the Society were not warranted based upon the evidence (or lack therefore of credible and reliable evidence) presented. The Society’s (state) intervention has created significant disruption for this family. Not only has mother and child not had contact for over 170 days, but the mother is now at risk of losing her housing due to the impact on her social assistance support and the child has changed communities.

[25] On February 14, 2024, Justice Horton made an order granting the Society leave to withdraw its Application commenced on March 1, 2023 and terminating the outstanding interim supervision order.

[26] In June 2024, Linck made an application for a Warrant to Bring a Child to a Place of Safety. Justice of the Peace C. Hurst dismissed that application and endorsed:

The child has not been harmed. The child has not been threatened. Her bedroom is clean and neat; well kept. She is provided with reasonable school lunches. Has close neighbours to assist and help her if she feels [illegible] or scared. It is clear that she loves her mother and her mother cares for her. Things may change but at this time more damage could be done by removal.

[27] In October 2024, Linck advanced a second application for a Warrant to Bring a Child to a Place of Safety. Justice of the Peace K. Jackson granted the Warrant. Z was brought to a place of safety from her mother’s care on October 4, 2024.

[28] Subsequently, Linck advanced the current motion in accordance with its obligations under the legislation.

The Law

[29] This motion is governed by section 94(2) of the Child, Youth and Family Services Act, 2017 (“CYFSA”). It reads:

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.

[30] Pursuant to section 94(4), the Court must not make an order under section 94(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).

[31] Pursuant to section 94(5), before making an order placing a child in care under section 94(2)(d), the Court must 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.

[32] It is well established that at a temporary care and custody hearing involving a removal, there is a two-part test that the Society must meet. The Society must demonstrate, 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 person having charge of the child prior to the Society's intervention, it is more probable than not that the child 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.).

[33] The Court must choose the order that is the least disruptive placement consistent with adequate protection of the child as required by subsection 1(2) of the CYFSA (Children's Aid Society of Hamilton v. B.D. and F.T.M., 2012 ONSC 2448). 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 269).

[34] According to section 94(10), the Court may admit and act on evidence that the Court considers credible and trustworthy in the circumstances. Justice Kathleen Baker confirmed in Child and Family Services of Grand Erie v. G.L. that this does not mean any evidence is admissible. She notes that at the preliminary stage of the proceeding the rules of evidence are relaxed but not completely suspended. The court must consider the quality of the evidence and determine whether such evidence is capable of being relied upon.

Analysis

[35] Society worker C. Anderson summarizes on page three of her affidavit sworn October 7, 2024, the grounds that form the basis for Linck’s actions in bringing Z into its care. The grounds itemized are the following:

• On May 26, 2024, an acquaintance of the mother, CJ, was arrested at her home by police officers. He was found to have possession of a “large quantity of drugs including heroin, fentanyl and methamphetamine”;
• On June 3, 2024, police officers attended at the mother’s home following an assault perpetrated on a female by an acquaintance of the mother, DT. DT was arrested;
• The child Z was present in the home on both occasions noted above when the police attended;
• On October 1, 2024, the mother’s landlord contacted the society to report concerns of “unknown individuals’” coming and going from the mother’s home and concerns of drug use. The landlord advised the society she was in the process of evicting the mother;
• On October 3, 2024, C. Anderson attended the mother’s home and noted “three unknown individuals” at the home with the child. Subsequently, police also attended, at the request of C. Anderson, and arrested “one unknown individual for outstanding warrants.” Police identified DT as one of the individuals present on this date;
• On October 3, 2024, it was found that the mother was acting as surety for DT and that part of his condition of release was that he was to reside in the mother’s home. When asked to have the condition varied, the mother refused.

What follows here is my consideration of each of these stated grounds.

Events of May 26, 2024 Involving CJ

[36] On May 27, 2024, a constable with the Chatham-Kent Police Service contacted Linck and reported that on May 26, 2024, a stolen vehicle was found at SA’s home and CJ was observed leaving her home. CJ was observed carrying a bag in which police found “street drugs” including heroin, fentanyl and methamphetamine. CJ was arrested. The police officer noted that CJ was extremely violent and required three officers to place him under arrest. The officer reported that during the arrest the mother exited her home and was “half naked.”

[37] There is no evidence that CJ was in the mother’s home. As contained in C. Anderson’s Affidavit, when asked about this incident, the mother stated to the worker that CJ was a friend from high school and when fleeing from police, attended at her home. There is no evidence that he entered her home.

[38] After CJ’s arrest, C. Anderson asked SA about her plan should CJ return to her home. SA stated that there was no plan as he would not be returning to her home.

[39] There is no evidence that CJ returned to SA’s home after that date. When interviewed by C. Anderson at school on May 28, 2024, Z stated she could not remember ever seeing the man before his arrest.

[40] SA’s evidence presented through her testimony was that CJ was running from police on May 26, 2024 and attended at her housing complex. She confirmed that the policed chased him, tasered him and arrested him. She confirmed that CJ did not enter her home. She further testified that she knew CJ from high school and that she had only run into him a short while before but that they had not had contact in years. SA further testified that Z was not home on that day as she was camping with family in Windsor. This evidence did not conflict with that of Linck’s worker. I find SA’s evidence to be credible and trustworthy.

[41] Further, the mother’s neighbour JM confirmed that on May 26, 2024, Z was away camping with her stepfather in Windsor. JM knew this to be true as her son R wished to visit with Z but she was away.

[42] This event does not establish likely risk of harm to Z in her mother’s care as it is not proven that she was exposed to this individual or his arrest.

Events of June 3, 2024 Involving DT

[43] On June 3, 2024, Chatham-Kent police officers arrested DT at SA’s home for an alleged assault on a female. The alleged victim was not SA. The attending officers did not contact Linck on this date. C. Anderson learned of the incident from other community members and contacted the police for information on June 6, 2024. C. Anderson deposes that she was advised by the officer she spoke with by telephone that the report did not indicate whether Z was present at the time of the alleged offence.

[44] On June 6, 2024, C. Anderson attended at SA’s home and the home of her neighbour. During an interview by C. Anderson, while being babysat by the neighbour, Z confirmed that she did not know what had happened and was not present at the altercation.

[45] The evidence of C. Anderson is inconsistent and contradictory in her own Affidavit. At paragraph 9 she confirms that Z was present for this altercation. Later in the Affidavit, she confirms that the police did not have evidence that Z was present. Z also had no knowledge of the events when questioned by C. Anderson.

[46] In her testimony, SA confirmed that Z was not home when this incident occurred. Her neighbour JM also confirmed under oath that Z was in her home during this incident, having a sleepover with her son.

[47] In relation to this event, I cannot conclude that Z is at risk of likely harm in her mother’s care as there is no evidence that she was exposed to any violence.

Issues with Landlord

[48] On October 1, 2024, Linck received a report from the mother’s landlord that the landlord had begun the eviction process with the “Landlord Tenant Board” due to concerns about an individual being arrested with drugs at SA’s home. There is no evidence to suggest that this event was other than the incident of May 2024 involving CJ. Apparently, the landlord also reported that there were unknown individuals “in and out of” the mother’s home. There is no confirmation regarding who characterized these individuals as ”unknown.”

[49] SA responded to these statements in C. Anderson’s evidence with her own testimony that the landlord has not served her with a notice of an application to the Landlord Tenant Board. There is no proof that an application is begun or that SA is in danger of losing her home.

[50] From this evidence I cannot conclude that SA and Z are at imminent risk of losing their home or there is a likely risk of harm to Z.

Three “Unknown Individuals” at the Mother’s Home on October 3, 2024

[51] Worker C. Anderson reports attending at the mother’s home on October 3, 2024. She deposes there were three” unknown males” and two “Pitbull dogs” sitting outside SA’s home on this date (paragraphs 11 and 56).

[52] C. Anderson reports that one of the unknown individuals was arrested for “outstanding warrants.” Later (at paragraph 56 and further) C. Anderson confirms that the person arrested was “ZC” who is the child’s adult brother.

[53] In the mother’s evidence at the hearing, she confirms that the individuals at her home on that date were: DT, his family member, and her adult son ZC. SA also confirms that the male who was arrested on outstanding warrants was her son, ZC.

[54] SA offered ZC as a witness at the temporary care hearing. In his evidence, ZC confirmed that he was arrested on October 3, 2024, with officers stating he had an outstanding warrant for his arrest. ZC confirms that at his arrest, he was told that the warrant was due to a failure to provide his DNA sample. ZC’s evidence is that once he was brought to the Chatham police station for processing, it was learned that it was a “’false arrest” as he had already complied with the order to provide his DNA sample. He also testified that he was not charged in relation to any breach regarding his DNA sample order because the arrest was not justified. Under cross-examination, ZC admitted candidly that he has other outstanding criminal charges for possession for the purpose of trafficking and past convictions related to assault with a weapon, breach of a probation order, possession of stolen property and break and enter.

[55] The presence of ZC at the child’s home is not a risk that warrants Z’s removal from her mother’s care. SA testified, ZC confirmed, and it is not disputed by Linck that SA does not leave Z unsupervised with her brother. This is because SA remains concerned about ZC’s past “kidnapping” of Z. In relation to the events in November and December 2022, ZC confirmed that at the time that he withheld Z from their mother, ZC was in a “manic state,” acting irrationally in bereavement due to loss of close family members. He testified that in this state, he wrongly believed that his mother was abusing illicit drugs. During the course the temporary care hearing, ZC read an apology letter to his mother for his actions in bringing CAS “back into their lives.”

[56] Lastly, although C. Anderson characterizes the individuals at the mother’s home on this occasion as “unknown” – they were known to the mother and child and had ties to the family. I also note that these individuals were observed by C. Anderson outside the mother’s home and there was no evidence that Z was present at that time. None of these individuals posed a risk of likely harm to Z, with her mother present, and their presence does not warrant removal of the child from her mother’s care.

DT’s Presence in the Home

[57] C. Anderson’s attendance at the mother’s home on October 3, 2024, appears to have been the precipitating event leading to Linck’s actions to take Z to a place of safety.

[58] On October 3, 2024, C. Anderson claims she “discovered” that the mother was surety for DT and that he was bound by court order to reside at her residence. C. Anderson deposed that she asked the mother to withdraw her consent to act as surety, and that SA refused.

[59] The mother, in her testimony cleared the ambiguity around DT’s status. She confirmed that she is in a relationship with DT and that he resides with her and Z. She further confirms that he is presently charged with assault and assault with a weapon relating to the events of June 4, 2024. He is defending those charges in the criminal courts. The mother also testified that DT does not have any past criminal convictions.

[60] Importantly, SA also testified that she does not leave Z in the care of any person other than JM.

[61] SA confirms that she is not a surety for DT as she has her own criminal record which precludes her from assuming that role. SA confirms that DT’s Release Order obliges him to reside at the address they share. SA confirmed under oath that DT has committed that if he is required to relocate to another residence to support Z being returned to SA’s care, he will undertake the application to have that term varied.

[62] Linck’s assessment that DT’s presence in the home places the child at risk of harm is not shared by this court. DT is an individual who is charged with assault offences perpetrated against an adult female, who is not SA. The circumstances of this offence have not been provided to this court. DT is a person who is presumed to be innocent until the Crown discharges its burden of proving him guilty beyond a reasonable doubt.

[63] There is no evidence that DT has any past criminal record.

[64] There is no evidence that Z has ever been exposed to physical violence in her mother’s care.

[65] When questioned by C. Anderson, Z confirms that the mother and DT yell at each other. When asked if DT yells at Z, Z responds: “Oh no, he doesn’t ever do that to me.”

[66] In refence to her discussion with her supervisor about restricting the mother’s care of Z, C. Anderson deposes at paragraph 64 of her Affidavit that “it was determined that given DT’s violent past, he should not be residing in the home.” This characterization of DT’s status is grossly exaggerated.

Anonymous Reports

[67] C. Anderson, deposed to information received by voicemail on June 4, 2024, and through society screener Ernie Meriano on June 6, 2024, from two “anonymous” sources about concerns for the child (paragraphs 42 and 43). It appears that these individuals did not identify themselves to society workers.

[68] On a motion for interim custody, information from an anonymous source in the society’s affidavit regarding the parent is a violation of Rule 14(19) of the Family Law Rules. Further, it is not information that is “credible and trustworthy” under subsection 94 (10) of the CYFSA and cannot be relied upon (Children’s Aid Society of Halton Region v. Beth M. and Thomas K., 2011 ONCJ 660, per Justice Roselyn Zisman). There is no evidentiary value in anonymous reports. They do not meet the principled exception of necessity and reliability as they can’t be cross-examined or tested. Inadmissible hearsay is not a question of weight – it has no evidentiary weight (Director P.E.I. v. J.P. – April 25, 2013, P.E.I.S.C).

[69] I place no weight on the content of reports of anonymous individuals- these reports do not meet the criteria of necessity and reliability. The evidence offered by Linck from anonymous reports is of no value and shall be disregarded.

Mitigating Risk to the Child

[70] I wish to address the facts which confirm that the child is not at risk of harm -- or that if there is harm, it is mitigated.

[71] Despite repeated private conversations by C. Anderson with Z, Z has not reported that she has been exposed to any illicit drug use or that she has been exposed to any domestic violence (other than arguments between her mother and DT).

[72] Independent reports from Z’s school administrator confirmed to C. Anderson on May 29, 2024, that “there were no issues with [Z]’s school attendance.”

[73] There is no credible or reliable evidence to suggest that Z was exposed to the incidents at SA’s home on May 26, 2024, and June 3, 2024. Z repeatedly told C Anderson, who interviewed her at school, that although she may have been home, she was not aware of what was happening as she was listening to music in her bedroom. C. Anderson’s conclusion that Z was present was based upon conversations with a nine-year-old days after either event. Z’s information to the worker was also inconsistent as she advised that she had been camping the weekend before when the May 26, 2024 incident would have occurred.

[74] Z denied when questioned by C. Anderson that her mom drinks alcohol. Z confirmed that her mother did “sometimes smoke a small joint” and cigarettes. There is no evidence from the child or any other person that her SA has been intoxicated to the point of interfering in her proper care of Z. SA confirmed in her testimony that she smokes marijuana before bedtime as a sleep aid. She states this this occurs when Z is in bed although conceded that Z may have observed her smoking marijuana if she wakes during the night.

[75] C. Anderson questioned Z about who cares for her when mother is not available. Z confirmed to the worker that her mother asks others to care for her when she goes grocery shopping. I do not know what conclusions Linck seeks me to draw from the fact that SA has leaned on her neighbour to care for Z at times. There is no evidence that SA is leaving Z for excessive periods of time or with inappropriate caregivers. The mother is a single parent. She is entitled to have a support network to assist in caring for Z.

[76] Linck’s investigation about risk to Z, appear not to have uncovered evidence of risk mitigation which was readily available. SA testified at the hearing that:

• Z had recently completed a speech assessment facilitated by SA. SA confirmed that the assessor determined that Z had made great improvements over the last year;
• SA confirmed that Z recently attended at dentist appointment at which it was confirmed that she has no cavities;
• SA was supporting Z’s involvement in karate for the last 5.5 months with weekly attendance. Z’s karate participation ended when she was taken into Linck’s care;
• SA has created a community for her family. SA has developed a deep and supportive relationship with her neighbour, the two women rely on each other for childcare when needed. JM readily testified in support of SA at the temporary care hearing. Their children have developed bonds.
• SA reconciled with her son ZC in Z’s best interests as Z wants to continue her relationship with her brother. This relationship has provided Z with comfort through her recent apprehension by Linck as ZC testified about daily telephone calls during which he comforts his sister.

[77] In addition to all the foregoing, the mother volunteered to provide oral evidence at the first opportunity—the first return of the temporary care hearing to court. SA took the stand and testified in a manner that was calm, logical, sincere, and fair. She was honest about her use of marijuana. She was frank about her partner and adult son’s current criminal charges. She explained her reasoning for allowing her son to have contact with Z. She clearly expressed her efforts to ensure that Z is safe and well cared for. She explained matters logically and addressed all relevant points for the court’s assessment of risk. SA also interacted with her witnesses in a manner which reinforced that she is focused and thoughtful. SA maintained her composure throughout this difficult hearing. SA did a very competent and thorough job of representing herself. None of the evidence presented by Linck contradicted SA’s evidence on any major point. SA was believable. I found her evidence to be credible and reliable.

Concerns with Linck’s Evidence

[78] Linck’s evidence supporting its motion bears comment.

[79] Justice Katarynych in CAS Toronto v. M.A., 2002 O.J. No. 1432 sets out that cases must be dealt with justly which includes an obligation on a Society to present admissible, fair and factual evidence:

(a) Rule 2(2) requires that dealing with a case justly includes ensuring that the procedure is fair to all parties. (b) It is admissible evidence in writing that can be filed, not just any evidence. (c) Rule 14 (18) requires that the affidavit should contain as much personal knowledge as possible. If from a third party, the source must be identified. (d) Past parenting evidence must be relevant. Issues of relevance, probative value and admissibility are still alive. (e) The affidavit material should set out at the beginning of the affidavit, the reasons for the intervention, why less disruptive steps were not taken, and what has been learned in the investigation to date. The parent’s entire life should not be on parade. (f) There should be a respect for the rules of evidence. Supposition, conjecture, speculation, innuendo, gossip, unqualified opinion, where qualified opinion is required have no place in an affidavit. (g) Exhibits shouldn’t be used as a substitute for proper evidence. (h) The affidavits should be proportionate. Factual inferences can be drawn from the evidence only if the facts alleged to support the inference are established by the evidence.

[80] For the current motion, Linck filed the Affidavit of C Anderson sworn October 7, 2024. I have also reviewed the Form 33: Informations for Warrant to Bring Child to a Place of Safety sworn by C. Anderson on June 7, 2024 and October 4, 2024.

[81] The similarities and differences in the contents of the worker’s current Affidavit and the past sworn evidence offered to support the Warrants are incredibly notable.

[82] Significantly, C. Anderson’s current Affidavit sworn October 7, 2024 contains identical evidence under the headings of “Meeting with [Z]- May 28, 2024” and “Unannounced Home Visit- May 29, 2024”, word for word to the evidence found in the Form 33 pleadings, but Linck has extracted all positive references to the mother’s care of Z. Specifically, contained in the Form 33: Information for Warrant to Bring Child to a Place of Safety sworn by C. Anderson on June 7, 2024, and on October 4, 2024, but extracted from the current affidavit is the following:

Under the heading “Meeting with [Z]- May 28, 2024”:

“[Z] reported the mother was doing okay, advising they ‘hang out a lot’ and do fun things together like watching television;” “[Z] continued to state that the mother and she were doing well;” “[Z] began speaking of upcoming school activities and an award she had received.” “Ms. Anderson asked [Z] if she was taking her medication as prescribed, which she confirmed.” “When asked what the mother packed in her lunches for school, [Z] stated that her bag was filled to the top and hard to carry. She reported that her lunch was mostly snacks like cookies, fruit by the foot, juice boxes, granola bars, fruit cups and sometimes macaroni salad.” “[Z] advised that the mother had attend for her school play and jump rope event at her school. [Z] advised that the mother also helped her with her homework. She advised that she was currently taking Karate lessons each Wednesday and was enjoying it.” “[Z] then advised that she went to spend the last weekend in Windsor with her stepdad JM. She advised that her stepdad was with Tiffany (surname not provided), and she had two (2) children, Luke who was eight (8) and Adrian who was three (3). When asked how often she visited, [Z] stated ‘tons’ and advised that JM lived with Uncle Robert (surname not provided) who she thought was Tiffany’s father but not sure.” “When asked what was going good, [Z] stated that she no longer fought with her mother about getting up in the morning. She stated that she was happy to have friends, happy that the mother helped her with her homework and happy at home and having fun.” “Ms. Anderson asked [Z] if she was fearful of going home and she stated, no, that she was happy to be with the mother. When asked on a scale of one (1) to ten (10), ten being best, how she rate[sp] being at home with the mother. [Z] stated ten, because her friends lived next door and second ‘because mom still yells at me.’” “[Z] added that most of her worries were about school and not home.”

[83] These omissions from the current evidence for the motion are remarkable as they are all positive statements relayed by Z to C. Anderson about her mother’s care of her. These statements confirm that Z’s needs are being met, that her mother is interacting with her school and extra-curricular activities, and that Z is content with her mother. They further confirm that Z is a child visible in the community and participating in pro-social activities.

[84] Of particular importance is Z’s information that she spent the prior weekend in the care of JM in Windsor. This visit would have coincided with the incident of May 26, 2024, and potentially undermine Linck’s evidence that “The child [Z] was present in the home” (paragraph 9 of C. Anderson’s Affidavit).

[85] Under the heading of “Unannounced Home Visit - May 29, 2024,” C. Anderson’s Affidavit sworn October 7, 2024 in support of the current motion, does not include information found in the affidavits in support of the Warrants including:

a. Ms. Anderson asked the mother if she were to undergo drug testing at that time, what her results would show. The mother answered “nothing.” b. On this date, Ms. Anderson asked to view the interior of the mother’s home. The mother allowed C. Anderson to attend inside the home unaccompanied and allowed her unrestricted access. During this viewing of the home, Ms. Anderson observed that the living room and kitchen presented as “neat” and “clean.” Ms. Anderson observed Z’s bedroom to be “neat and tidy. She observed the mother’s bedroom to be messy with an unmade bed and drawers pulled open,

[86] There is nothing in Linck’s pleadings to explain why the evidence differs for the current motion from the evidence offered at the two applications for warrants made in the last six months.

[87] Justice Tweedie in Children's Aid Society of the Regional Municipality of Waterloo v. S.M. et al, 2023 ONSC 3373, repeated in Durham Children's Aid Society v DF, [2023] OJ No 3702, made important comments on a Society’s role in litigation which unfortunately has direct applicability to this proceeding. Her Honour’s comments which apply equally to the current evidence in this proceeding are:

I am gravely concerned that the Society did not disclose this information to the mother and the court during the Protection Application. The Society is an institutional litigant, seeking intrusion into the autonomy of families. It is a creation of the CYFSA, and its only authority to act comes from the CYFSA, of which the paramount purpose is to promote the best interests, protection, and well-being of children. It is incumbent upon the Society to bring to the court's attention all information relevant to the needs of the children in a timely manner. To do otherwise would belie the paramount purpose. It is my understanding that the Society has recognized and acknowledged this.

[88] In relation to a child protection agency’s interactions with families, Justice Sherr in Children's Aid Society of Toronto v BH, [2007] OJ No 2446 writes:

This court has to make a major decision for these children and their families that will have a huge and permanent impact on their lives. The society is a powerful institution and with such power comes great responsibility. The goal of a state litigant is justice. It is not about winning. The society's role in presenting a case to the court is not merely to present evidence that justifies their position, but to present all relevant and probative evidence, including that not favourable to their position, to ensure that the best possible decision for children can be made. It is important that society workers understand this. Society counsel can only put forward the evidence that the workers provide to them. It is important to educate the workers about their responsibility to provide a balanced perspective of the case to the court and not only provide information that justifies their position.

[89] I repeat this message to Linck -- that it has an obligation under the Act to present the court with all relevant evidence or it risks undermining the paramount purpose of the legislation. I am significantly concerned in this matter that the Society has tailored its motion evidence to retrospectively justify its actions of taking Z into care.

Linck’s Engagement with this Family

[90] The paramount purpose of the CYFSA is to promote the best interests, protection and well-being of children (section 1(1)). The additional purposes of the Act include:

(2) The additional purposes of this Act, so long as they are consistent with the best interests, protection and well-being of children, are:

1. To recognize that while parents may need help in caring for their children, that help should give support to the autonomy and integrity of the family unit and, wherever possible, be provided on the basis of mutual consent.
2. To recognize that the least disruptive course of action that is available and is appropriate in a particular case to help a child should be considered.
3. To recognize that children's services should be provided in a manner that, i. respects a child's need for continuity of care and for stable relationships within a family and cultural environment ii. takes into account physical, cultural, emotional, spiritual, mental and developmental needs and differences among children, iii. provides early assessment, planning and decision-making to achieve permanent plans for children in accordance with their best interests, and iv. includes the participation of a child, his or her parents and relatives and the members of the child's extended family and community, where appropriate.
4. To recognize that, wherever possible, services to children and their families should be provided in a manner that respects cultural, religious and regional differences.
5. To recognize that Indian and native people should be entitled to provide, wherever possible, their own child and family services, and that all services to Indian and native children and families should be provided in a manner that recognizes their culture, heritage and traditions and the concept of the extended family.

[91] Linck has undertaken a course of unjustified intrusion into this family unit. After obtaining an order to withdraw its child’s protection proceeding in February 2024, the Society continued to investigate and encroach on SA’s care of Z. Although SA was not bound by any court order or voluntary agreement to work with Linck:

• C. Anderson made demands to enter and view the entirety of SA’s home (May 29, 2024 and October 3, 2024);
• C. Anderson demanded to know the identity of persons present at the home (October 3, 2024);
• C. Anderson interviewed Z at school on at least two occasions since May 2024 without the mother’s advance knowledge or consent (June 6, 2024, and October 3, 2024);
• C. Anderson involved the police in attending at the home with her on at least one occasions (not for the purpose of bringing the child into care - October 3, 2024);
• C. Anderson spoke to the family’s neighbours actively pursuing evidence;
• C. Anderson engaged with other extended family members asking if they were willing to take Z into their care before effecting any warrant or bringing the child into care.
• C. Anderson sought information from Z’s school administrators about SA’s care of her;
• Also, until the hearing on October 8, 2024, SA was not made aware that Linck had applied for a Warrant to bring the Child to a Place of Safety in May 2024.

[92] All of these actions have seriously undermined any supportive role that Linck may assume with this family to mitigate risk.

[93] On October 3, 2024, due to unwarranted concerns that one of the individuals at SA’s home was CJ, C. Anderson, in consultation with her supervisor, telephoned the police to attend for assistance. She deposes that her intent in so doing was “so that I could view the home and have the individuals at the home identified.” C. Anderson noted that “one fit the description of [CJ].” When the police attended, the worker entered the home with four police officers. ZC, the adult brother, told the officers and worker that consent was not provided for them to enter the home. Regardless, C. Anderson, and police officers entered the home. SA and Z reacted in fear believing that C. Anderson brought the police to the home for the purpose of apprehending the child. C. Anderson notes that Z was crying. This upset by forced entry into the home by government agents was unwarranted and avoidable. The police confirmed that the “unknown” individual was not CJ. C. Anderson does not describe in her affidavit how she concluded that the unknown person “met the description” of CJ. Z was not taken from her mother’s care that day. But her brother was arrested in her presence and taken away in a police cruiser. C. Anderson used this opportunity to make observations about the interior of the home noting many things, including that it was “cluttered,” “dusty,” and items strewn about. She also made unhelpful observations such that: the basement had “haphazard” boxes piled around; “clothing spilled out of the closet when the door was opened”; “a cot was set up with mismatched bedding tumbled upon it;” “the couch cushions were uneven with blankets haphazardly tossed across them;” “[t]he tops of the dresser and nightstands were cluttered with various items including empty pop bottles and partially eaten bags of chips.”

[94] I have very serious concerns about C. Anderson and the Chatham-Kent police officers’ entry into SA’s home on October 3, 2024 potentially endangering the legal rights of SA, ZC, their family visitors and the child Z under the Canadian Charter of Rights and Freedoms. Even at a most basic level, C. Anderson acted in a manner exceeding her mandate under the CYFSA. Any risk to Z due to the alleged presence of CJ in her home does not warrant this type of intrusion into the family home. The emotional harm to Z of this state intrusion outweighs the fact that CJ could be in the home. CJ was a person arrested for possession of illegal substances outside of the mother’s home months before. There was no evidence that he was prohibited from attending at the mother’s home by family court order, criminal court release order, or voluntary services agreement. The child was present on this date with her mother and her adult brother, both of whom have demonstrated a commitment to keep her safe. There was no evidence that Z was in immediate danger on this date. The entry of the worker and the police to demand that all persons identify themselves and to view the entire interior of the mother’s home was unjustified.

[95] There is no evidence that Linck considered any less intrusive measure to achieve its stated goal of mitigation of risk of harm to Z. There appears to be no effort to engage with SA in a voluntary service agreement. Linck did not seek an order placing Z with SA with supervision. Linck did not seek to place the child with SA’s support with family, friends, or the neighbour JM who regularly cared for Z. It moved directly to applying for a warrant to bring the child to a place of safety. There appears to be little to no regard for the impact of such behaviour on Z and her mother.

[96] Linck, through negligent and perfunctory investigation, has now apprehended Z twice from her mother’s care. Linck’s actions have a real and long-lasting impact on the relationship between mother and child. Linck’s actions also have a direct impact on this family’s willingness to work collaboratively with any society agent. Linck’s actions also have a direct impact on Z’s impression of society agents. During the mother’s testimony at the motion hearing, she described with great emotion, the look on Z’s face on October 4, 2024 when Z tried to flee out the back door from the worker C. Anderson who had come to apprehend her. SA described Z’s state of panic trying to get out of the back door. SA also described how Z considered C Anderson to be “her friend” and Z’s confusion over C. Anderson removing her from SA’s care. The trauma from this event will likely stay with this child and mother long term.

[97] Still more aggravating, and worth repeating, is the fact that this is the second time that Linck has taken Z into care and the second time that the court has determined upon a review of the evidence that such action was baseless and unjustified.

Conclusion

[98] Based upon the foregoing, I find that Linck has not discharged its onus under section 94 (4) of the CYFSA of proving on a balance of probabilities that that there are reasonable grounds to believe that there is a risk that Z is likely to suffer harm in her mother’s care. Further, I find that Linck could not have a reasonably grounded belief about the risk of harm to Z which amounts to anything more than mere speculation on the evidence which it has presented (Catholic Children's Aid Society of Toronto v. M.C., [2011] O.J. No. 6075).

Order

[99] Based upon the foregoing, the following order is made:

(a) Linck’s motion seeking an interim order placing the child Z into its care is dismissed. (b) Linck shall immediately return Z to the mother’s care. I decline to make any order for supervision by Linck at this time. (c) I shall be the case management judge for this family in the current proceeding and for any subsequent child protection applications advanced by Linck. (d) Linck’s Child Protection Application shall be adjourned for further litigation planning to allow counsel the opportunity to obtain further instructions from Linck. (e) Costs of this motion payable from Linck to SA are reserved for determination on the next date assigned. I suggest that SA seek legal advice about the issue of costs. (f) In any further applications by Society for a Warrant to Bring the Child to a Place of Safety, Linck shall include a copy of this decision in any evidence filed. (g) The Child Protection Application is adjourned for litigation planning on November 21, 2024, at 9:30a.m. in Courtroom #202 by hybrid zoom.

Released: October 11, 2024 Signed: Justice M. Vickerd