COURT FILE NO.: FC-11-24

Date: 2012/09/11

SUPERIOR COURT OF JUSTICE - ONTARIO

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT

IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990 and in the matter of S.E.H-H, born […], 2011

RE: The Children’s Aid Society of Ottawa v. A.H., and T.H.

BEFORE: M. Linhares de Sousa J.

COUNSEL: Mark Hecht, for the Society

Kristen Robins, for the mother, A.H.

Karen Leef, for the father, T.H.

DATE HEARD: September 7, 2012

endorsement

M. linhares de sousa J.

[1] The Children’s Aid Society of Ottawa (the “Society”) brings this motion seeking an order varying the temporary consent access order made on July 25, 2012. This motion is brought in the context of a Status Review Application, the subject of which is the child S.E.H-H (DOB […], 2011) who is now a few months over one year old. The child is currently in the care of her mother, A.H., under the supervision of the Society. At this time, the Society appears to be content with the child remaining in the custody of the mother. They have no child protection concerns regarding the mother. The parents of the child no longer cohabit and the father of the child, T.H., has unsupervised access to the child as a result of the agreement reached by all the parties, in July of 2012. The agreement of the parties in July of 2012 gave the father unsupervised access to his daughter every second weekend from Friday to Sunday together with alternate Sundays for the full day with the only condition being that the father return to the home of his mother, Ms. D. H., in the evening for the child’s bedtime routine. Mr. H. is now living with his mother.

[2] Mr. H. never got to exercise the full access accorded to him in the July agreement because this motion was brought by the Society. Pending the decision on this motion Mr. H. was granted supervised access to his daughter to be supervised by Mr. H.’s father, C.M., and step-mother, P.M.

[3] The Society requests that the father’s access to the child be supervised until further Order of the Court. It submits that while the event that caused this motion to change the father’s access occurred prior to the parties’ agreement in July, it has only now come to the attention of the Society and justifies the change. The Society also does not any longer want the access to be supervised by Mr. H.’s mother, Ms. D.H. The Society requests that any supervisor of access be approved in advance by the Society.

[4] Ms. A.H. supports the Society’s motion to have Mr. H.’s access to his daughter supervised. Ms. A.H. was aware of the incident on which this motion is based when she joined in the agreement in July of 2012 granting Mr. H. unsupervised access. While at that time she wished to have the Society out of her life and that of her child, she is now content to have the Society involved to monitor Mr. H.’s access to the child. Furthermore, Ms. A.H. does not support the supervision of access by any of Mr. H.’s family members. She does not believe that Ms. D.H. fully supervised her son’s access when she was required to do so. Ms. A.H. is also concerned with the level of conflict between Ms. D.H. and her son to which the child may be exposed. In addition to this concern, the concern about the incident in question, there are other observations of the child upon her return from access with her father that Ms. A.H. finds troubling, such as the child often returning with a significant diaper rash and congestion and cold-like or allergy symptoms and “clingy” behaviour on the part of the child. Ms. A.H. also questions Mr. H.’s sincerity in recognizing his mistake about leaving the child alone while he went to the store. She also questions his commitment to his daughter when during his access period he chooses to go out with his friends rather than be with his daughter as he has done recently. Ms. A.H. requests an order that Mr. H.’s access be supervised by the Society or by a supervised access service in the community.

[5] Mr. H. contests the motion and seeks unsupervised access in accordance with the parties’ agreement in July of 2012. Mr. H. recognized that the incident in question was “stupid” and bad judgment. Nonetheless, according to Mr. H., it does not justify the substantial reduction to his access that would result, if the Society’s motion is granted. The efforts made by him and the progress he has demonstrated over the last year in his parenting capacity, and the positive relationship he has established and demonstrated to have with his daughter supports his position to be able to continue to exercise generous and liberal unsupervised access to his daughter.

[6] Mr. H. acknowledges that there are stresses and conflict in the relationship with his mother, but denies that they ever fought in the child’s presence. It is his intention to move out of his mother’s home to take up accommodation with another relative, and is convinced that this move will improve the relationship he has with his mother. Alternative to his position on this motion, he proposes that his mother continue to be a supervisor of the access to his daughter. He also proposes his father and step-mother as additional supervisors.

[7] The incident that brought this matter to court was the revelation that shortly before the agreement in July of 2012 Mr. H. left his daughter unattended in her room while he went to the store. Ms. D.H. discovered this and reported it to the Society after the parties’ agreement had been reached. There is no question, that given the age of the child this was bad judgment, bad parenting and put the child at risk.

[8] There is also no question on the evidence that, to compound the bad judgment, Mr. H., at first lied about the incident ever happening and even argued with family members about the appropriateness of doing such a thing. Other details of Mr. H.’s care have also come to light such as his sleeping at such a distance from the child that he is unable to hear her if she awakes during the night and his not having a baby monitor. Ms. D.H. gave evidence of having to telephone her son in the basement because his daughter had awakened on the second floor and he could not hear her. Mr. H. is also in the habit of smoking outside his mother’s house while his daughter is left inside the house unattended.

[9] While there is no evidence linking Mr. H.’s care of his daughter to the symptoms which Ms. A.H. finds troubling when her daughter returns to her care after access to her father, this is of concern as well.

[10] Without going into the history of this case, there is no question that Mr. H. has made slow, gradual and tremendous progress in being able to care for his daughter. The access over time was also very gradually and incrementally increased. Before access became unsupervised in July of 2012, many, the Society, Ms. A.H. and extended family members, observed in a very positive way Mr. H.’s care of and interactions with his daughter. Mr. H. registered in the “young Father’s Program” through St. May’s. He successfully completed the program. The reports from that program to the Society were also very positive. All of this clearly led to the decision to grant Mr. H. unsupervised access to his daughter in July of 2012.

[11] There is no dispute among the parties that one of the reasons this case has been so sensitive and has progressed so incrementally is because an older sibling (not a biological child of Mr. H.) A., died while in the care of Ms. A.H. and Mr. H. and specifically in the physical care of Mr. H. The cause of that child’s death was found to be by the Coroner, undetermined and non-accidental. The Coroner’s office has just recently given its report on the death of A. to the Gatineau Police. The Society does not yet have that report. Both Ms. A.H. and Mr. H. deny any wrongdoing with respect to the child A.

[12] Mr. H.’s decision to leave his one year old daughter alone while he went to the store, whatever the reason was substandard parenting. It is indicative of the fact that he can still make decisions about his child that puts her at risk. The matter is compounded by the fact that, when challenged by others about what he did, he would even try to argue that what he did was acceptable. His delay in obtaining a baby monitor and leaving it to other family members to fill the breach may also be indicative of the fact that he is not quite prepared to take full and complete ownership of his parenting responsibilities. The fact that he lied about leaving his daughter alone until the evidence from different third party sources was just too overwhelming to deny any longer, indisputably raises issues of his credibility and doubts about what future potential risk situations he may attempt to conceal.

[13] All of this, points to the need for continued vigilance and supervision of Mr. H.’s care of his daughter. In my view, this justifies a change in the current consent order. Had this information been known by the Society, I am convinced that it would not have consented to Mr. H. having the generous unsupervised access to his daughter which was granted to him in the consent order. Ms. A.H.’s consent to the order with this knowledge is troubling.

[14] All access orders are to be made with the best interests of the child as the principal consideration (see s. 58 of the Child and Family Services Act, R.S.O. 1990, c. C.11, as am.). It is in the child’s best interests to be safe while in the care of her father. For the reasons already discussed this requires some appropriate supervision. However, to accept both the Society’s and Ms. A.H.’s position concerning supervised access would substantially reduce Mr. H.’s access to his daughter. Based on the evidence all observed interactions between Mr. H. and his daughter have been positive. To substantially reduce that contact, I do not think would be in the child’s best interests given her age. S. should continue to have frequent, substantial but safe access to her father.

DISPOSITION

[15] The existing access order shall be amended as follows. Mr. H. shall have access to his daughter from Saturday morning at 9 a.m. to Sunday afternoon at 6 p.m. every second weekend to commence the weekend of September 15, 2012, together with alternate Sundays from 9 a.m. to 6 p.m. Mr. H.’s access shall continue to be supervised by the paternal grandfather, Mr. C. M. and paternal step-grandmother, Ms. P. M. only or by any other person(s) approved in advance by the Society. During his period of access, Mr. H. shall be able to exercise during the day (not including the child’s bed-time routine and sleeping time) up to four hours of unsupervised access at which time he will remain at all times with the child and care for her. During the child’s sleeping time at night Mr. H. shall sleep on the same floor as the child or any other floor in the house as long as he has a baby monitor and uses it.

[16] I find the disclosed conflict between Mr. H. and his mother to be troubling and not a good environment for the child. Apart from the declarations of Mr. H., I cannot find on the evidence anything to show that this would change. This is why Ms. D.H. is not being permitted to be an access supervisor at this time. It is clear that Ms. D.H. in the past was clearly trying to help her son and to properly guide him in the care of her granddaughter. Mr. H. chose not to take advantage of this valuable extended family resource and instead to become argumentative in a very immature way contrary to the interests of his daughter. Ms. D.H. is to be commended for being honest with the Society and putting the interests of her granddaughter first.

[17] This matter shall now proceed to a Settlement Conference on September 27, 2012.

M. Linhares de Sousa J.

Released: September 11, 2012

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT

ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990

AND IN THE MATTER OF S.E.H-H, born […], 2011

RE: The Children’s Aid Society of Ottawa v. A.H., and T.H.

ENDORSEMENT

M. Linhares de Sousa J.

Released: September 11, 2012