SUPERIOR COURT OF JUSTICE – ONTARIO
FAMILY COURT
COURT FILE NO.: C112/05-12
DATE: February 19, 2013
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT
RE: CHILDREN’S AID SOCIETY OF LONDON AND MIDDLESEX, Applicant
AND:
S.J.H., P.R., G.A.D., T.D. and L.D., respondents
BEFORE: HENDERSON J.
COUNSEL:
Randolph C. Hammond for the Society
Edward J. Mann for S.J.H.
Toenie Hersch for G.A.D.
HEARD: February 15, 2013
ENDORSEMENT
[1] This is a temporary care hearing regarding K.X.R., born […], 2008, and J.A.D., born […], 2010. G.A.D. is the biological father of J.A.D. and stands in the place of a father in respect of K.X.R..
[2] As a result of protection concerns, the children were found to be in need of protection and, by order dated October 6, 2011, were placed in the care of the Society subject to terms of supervision. This order was extended by the order of Vogelsang J. dated May 24, 2012.
[3] The Society was concerned about the mother’s historical transient lifestyle, anger management, lack of parenting skills, unstable mental health, condition of the home, substance use and inappropriate physical discipline. It also had concerns regarding the mother’s ability to meet K.X.R.’ medical needs due to his heart condition.
[4] Through the course of the dealings with the Society, the mother’s eldest daughter A. was made a Crown ward. Nevertheless, the younger children were placed in the mother’s care which would indicate that the mother otherwise was addressing its concerns satisfactorily.
[5] Starting in February 2012, the eldest daughter A. began making disclosures which involved the father in sexual impropriety. These disclosures resulted in the children being apprehended in October 2012. They were placed back in their mother’s care subject to a supervision order dated October 30, 2012. Among the terms was one prohibiting the father from having contact with the children.
[6] Despite this term, on November 12, 2012 the children were seen leaving their home in the company of their mother and father. The fact that the parents were together despite the order appeared to be corroborated by K.X.R.. However, the mother said it was a purely coincidental meeting. The father had just got off the bus as she and the children were going to catch the school bus.
[7] In any event, the children were apprehended and have been in care since pursuant to the order of Marshman J. dated November 16, 2012.
[8] The mother seeks to have the children returned to her care. The father supports the mother’s position. He agrees with his access being reasonable and supervised at the discretion of the Society.
[9] Section 51 of the Child and Family Services Act, R.S.O. 1990, c. C.11 [as amended] governs this motion. The relevant subsections are:
51(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,
(i) a place of secure custody as defined in Part IV (Youth Justice), or
(ii) a place of open temporary detention as defined in that Part that has not been designated as a place of safety.
(3) 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).
(3.2) A temporary order for care and custody of a child under clause (2) (b) or (c) may impose,
(a) reasonable terms and conditions relating to the child’s care and supervision;
(b) reasonable terms and conditions on the child’s parent, the person who will have care and custody of the child under the order, the child and any other person, other than a foster parent, who is putting forward a plan or who would participate in a plan for care and custody of or access to the child; and
(c) reasonable terms and conditions on the society that will supervise the placement, but shall not require the society to provide financial assistance or to purchase any goods or services.
(5) An order made under clause (2) (c) or (d) may contain provisions regarding any person’s right of access to the child on such terms and conditions as the court considers appropriate.
[10] Since the children have been apprehended, there have been two significant developments. First, though the disclosures made by A. were investigated by the police, no charges were laid. However, the Society remains concerned and it was acknowledged by all counsel that that issue could only be resolved by trial.
[11] Secondly, as of February 1, 2013, the father has rented an apartment in Glencoe, Ontario, some distance from London. This considerably reduces the risk of even chance meetings with the children.
[12] Therefore, with reference to s. 51(3), I am satisfied “that there are reasonable grounds to believe that there is a risk” to the children. However, I am satisfied that they can be protected by an order pursuant to s. 51(2)(b). The most significant concern the Society has is ongoing unsupervised contact between the father and the children. This risk has been substantially reduced with the father’s change of address.
[13] Therefore, the following order shall issue:
The children, K.X.R., born […], 2008, and J.A.D., born […], 2010, shall be placed in the temporary care and custody of the mother, S.J.H., until final disposition of these proceedings or further order of the court subject to the supervision of the Children’s Aid Society of London and Middlesex subject to the same terms and conditions as set out in the order of Templeton J. dated October 30, 2012.
The father, G.A.D., shall have reasonable access to the children, K.X.R. and J.A.D.. The Children’s Aid Society of London and Middlesex shall have discretion with respect to whether such access is supervised and, if so, the level of supervision.
“Justice Paul J. Henderson”
Justice Paul J. Henderson
Date: February 19, 2013