SUPERIOR COURT OF JUSTICE – ONTARIO
FAMILY COURT
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT
COURT FILE NO.: C827/10-04
DATE: January 17, 2013
RE: CHILDREN’S AID SOCIETY OF LONDON AND MIDDLESEX, applicant
AND:
M.C. and B.L.M., respondents
BEFORE: KORPAN J.
COUNSEL:
Robin Hurley for the Society
Lawrence Blokker for M.C.
William Clayton for B.L.M.
HEARD: November 23, 2012
ENDORSEMENT
[1] The respondent mother, M.C., and the respondent father, B.L.M., are the parents of B.L.M., soon to turn age four.
[2] The respondents cohabited but never married. They have separated several times. They most recently separated in September 2012 when the mother and B.L.M. moved out of the father’s home. Since the separation, the Children’s Aid Society of London and Middlesex has become re-involved with the family and in October 2012 the Society commenced a child protection application under the Child and Family Services Act, R.S.O. 1990, c. C.11 [as amended].
[3] There are two motions for temporary care and custody before the court. The father seeks temporary custody, care, control and primary residence of B.L.M. with him with regular and frequent supervised access between B.L.M. and the mother. The Society seeks to place B.L.M. with the mother subject to the supervision of the Society, with reasonable access to the father for a minimum of 14 hours per week, subject to the access being arranged and exercised through the Society’s access exchange program and, in addition, the father may attend the access visits between the paternal grandparents and B.L.M..
[4] The respondents initially separated in July 2010 when the father was arrested and charged with four counts of assaulting the mother and two counts of uttering death threats against her. The Society commenced a protection application and in August 2010 an interim supervision order was granted placing B.L.M. in the care of the mother with supervised access to the father.
[5] In September 2010, both parents requested that the father be allowed to move back into the home and the mother recanted her allegations. In October 2012, despite both the supervision order and the non-association order continuing, both respondents were found in the home. The father was charged with several breaches of release. The mother was charged with obstruction of justice, which charges were later withdrawn.
[6] In November 2010, the father was charged with conspiracy to commit and attempting to divert ephedrine which is used to make methamphetamine, which charges were later withdrawn.
[7] In January 2011, as part of a plea bargain, the father pleaded guilty to one count of assault against the mother. The father admits to having grabbed the mother’s ponytail while B.L.M. was in her arms. The father received a conditional sentence of one year with a condition to complete Changing Ways.
[8] The respondents reconciled in early 2011. In April 2011, B.L.M. was found to be a child in need of protection and a supervision order was made placing B.L.M. in the care of the respondents as they had reconciled their relationship.
[9] The respondents separated again in September 2011. The supervision order was extended in November 2011 for six months, placing B.L.M. with both respondents. The respondents arranged an access schedule between them under which B.L.M. spent several days per week with each of them. The father says that during that period of separation, B.L.M. was in his care more than 50 per cent of the time because that suited the mother’s convenience. The mother says this was not the case and that the father was to have B.L.M. with him two nights during the week and one night on the weekend.
[10] The parties reconciled again in May 2012. In May 2012, the supervision order was terminated and the Society closed its file in June 2012.
[11] The parties most recently separated in September 2012 when the mother and B.L.M. moved out of the father’s home. The Society became re-involved with the mother on September 27, 2012 when she called the Society and reported that the father was threatening her and did not understand nor accept that she did not want to reconcile with him.
[12] On September 27, 2012, the mother asked the father to care for B.L.M. so she could attend a concert. The father was unavailable but his mother, B.L.M.’s paternal grandmother, agreed to care for him. B.L.M. slept over at his paternal grandparents’ home that night, as did the father. After the mother picked B.L.M. up the next morning, she says that B.L.M. said “Daddy hit me.”
[13] The father says that he did not see B.L.M. on the evening of September 27, 2012 because he was out late. He says that he saw B.L.M. only briefly the next morning to say goodbye as he was still in bed when the mother arrived to pick up B.L.M.. The father denies ever hitting B.L.M.. The paternal grandmother confirms that the father did not spend time with B.L.M. in her home on September 27 or 28, 2012 and that he did not hit B.L.M..
[14] On September 28, 2012, the father issued an application for custody of B.L.M. under the Children's Law Reform Act, R.S.O. 1990, c. C.12. The application was served on the mother on September 29, 2012.
[15] On September 29, 2012, the mother called the police to report several alleged incidents of domestic violence perpetrated against her by the father in B.L.M.’s presence. The father was arrested and charged with an assault from September 10, 2011, uttering threats from between July and August 2012 and sexual assault from between September 5 and 12, 2012. The father says he is innocent. He has retained criminal defence counsel and is defending the charges.
[16] On October 3, 2012, B.L.M. was jointly interviewed by the Society and the police to follow up on the allegation that the father had hit him on September 28, 2012. The mother reported that she has never seen the father hit B.L.M.. No charges were laid against the father.
[17] The Society commenced a protection application on October 10, 2012, returnable on October 11, 2012. The Society’s concern is that B.L.M. will be exposed to domestic violence by the respondents.
[18] On October 11, 2012, a temporary without prejudice order was made placing B.L.M. in the temporary care and custody of the mother subject to the supervision of the Society, with the father to have reasonable access to B.L.M. with the Society to have discretion with respect to whether such access is supervised and, if so, the level of supervision.
[19] I have reviewed and considered all of the evidence before the court on this motion, consisting of the affidavits of the Society workers, the affidavits of the respondents and the affidavit of the father’s mother. The affidavits of the Society workers are for the most part a recitation of what the mother has told the Society. There are numerous conflicting allegations in the untested affidavits of the respondents which cannot be reconciled at this early stage of the application. The mother suggests that the father is a violent, controlling man, prone to criminal activity. The father suggests that the mother is a fabulist, using the Society to try to gain an advantage in the custody and support application.
[20] The court must decide on this temporary care and custody hearing where B.L.M. will live until the protection application can be heard on the merits. The focus on this hearing is on the needs and interests of B.L.M.. The hearing is to be determined under s. 51 of the Child and Family Services Act which reads:
Adjournments
51(1) The court shall not adjourn a hearing for more than thirty days,
(a) unless all the parties present and the person who will be caring for the child during the adjournment consent; or
(b) if the court is aware that a party who is not present at the hearing objects to the longer adjournment.
Custody during adjournment
(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.
Criteria
(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).
Placement with relative, etc.
(3.1) Before making a temporary order for care and custody under clause (2) (d), the court shall consider whether it is in the child’s best interests to make an order under clause (2) (c) to place the child in the care and custody of a person who is a relative of the child or a member of the child’s extended family or community.
Terms and conditions in order
(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.
Application of s. 62
(4) Where the court makes an order under clause (2) (d), section 62 (parental consents) applies with necessary modifications.
Access
(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.
Power to vary
(6) The court may at any time vary or terminate an order made under subsection (2).
Evidence on adjournments
(7) For the purpose of this section, the court may admit and act on evidence that the court considers credible and trustworthy in the circumstances.
[21] I have considered s. 51(2) of the Child and Family Services Act and find that at this stage of the application there are reasonable grounds to believe that there is a probable risk that B.L.M. will likely suffer harm if reasonable terms and conditions of a supervision order are not imposed. B.L.M. has previously been exposed to domestic violence while in the care of the respondents. The father admits to having grabbed the mother’s ponytail while B.L.M. was in her arms. He pleaded guilty to one count of assault. The respondents were previously found together in the home, despite being prohibited by both a supervision order and a non-association order. The father is now facing three further domestic violence charges, all of which are alleged to have occurred in B.L.M.’s presence, none of which has been proven. B.L.M. needs to be kept safe and protected from exposure to domestic violence.
[22] B.L.M. was in the mother’s care immediately before intervention by the Society. She has been B.L.M.’s primary caregiver while the father has been working and she is available to care for B.L.M. on a fulltime basis. The mother has not worked outside the home since B.L.M. was born. I have considered s. 51(2) of the Child and Family Services Act and find that B.L.M. can be adequately protected by placing him in the care of the mother subject to the supervision of the Society on the terms and conditions set out in the order of Mitrow J. dated October 11, 2012.
[23] In determining what access order is appropriate, I have considered s. 1(1) of the Child and Family Services Act which sets out that the paramount purpose of the Act is to promote the best interests, protection and well being of children, and also s. 1(2) which sets out the additional purposes of the Act. I have also considered s. 37(3) of the Act which sets out the factors to consider in determining a child’s best interests.
[24] B.L.M. was living with both of his parents until the separation in September 2012. The Society says that access between B.L.M. and the father has been going well. The father and B.L.M. are affectionate and there are no concerns about their interactions. The Society is requesting that the access exchanges take place through the Society’s access exchange programme.
[25] The father runs his own business and is able to arrange his time to provide primary care for B.L.M.. The father’s parents have a close relationship with B.L.M. and the mother has frequently used the paternal grandparents as caregivers for B.L.M..
[26] I have considered B.L.M.’s best interests and find that access with his father on alternate Tuesdays from 4:00 p.m. until Wednesday at 9:00 a.m. (in week one), alternate Saturdays from 5:00 p.m. until Monday at 9:00 a.m. (in week one) and alternate Thursdays from 4:00 p.m. until Saturday at 5:00 p.m. (in week two), with the access exchanges to take place through the Society’s access exchange programme is in B.L.M.’s best interests.
[27] For these reasons, a temporary order shall issue:
- Paragraph 2 of the order of Mitrow J. dated October 11, 2012 shall be vacated and replaced with the following:
“2. The respondent father, B.L.M. (hereinafter referred to as the “respondent father”), shall have reasonable access to the child, B.L.M., (in week one) on alternate Tuesdays from 4:00 p.m. until Wednesday at 9:00 a.m., (in week one) on alternate Saturdays from 5:00 p.m. until Monday at 9:00 a.m. and (in week two) on alternate Thursdays from 4:00 p.m. until Saturday at 5:00 p.m. subject to the following terms and conditions:
a) the respondent father shall collect B.L.M. at the Children’s Aid Society of London and Middlesex and return B.L.M. to the Children’s Aid Society of London and Middlesex;
b) in addition to the times set out above, the respondent father may attend the access visits between the paternal grandparents and B.L.M..”
- The temporary care and custody hearing is adjourned indefinitely.
“Justice Denise M. Korpan”
Justice Denise M. Korpan
Date: January 17, 2013