ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FC-12-1989

DATE: 2014/03/14

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
Z.B., born […], 2012

BETWEEN:

The Children’s Aid Society of Ottawa
Applicant

– and –

L.J. and G.B.
Respondents

Deborah E. Bennett, for the Applicant

Dominique Smith, for the Respondent L.J.
Tshiombo Achille Kabongo, for the Respondent G.B.

HEARD: February 14, 2014

REASONS FOR DECISION ON MOTION

Madam Justice B. R. Warkentin

[1] This was a motion commenced by The Children’s Aid Society of Ottawa (“the Society”) on December 9, 2013 for an order requesting the following:

a) an order restraining Mr. B. from having contact with Ms. J.; and

b) that Mr. B. have no access visits with the parties’ son, Z.B., born […], 2012, until such time as:

i. Mr. B. has demonstrated that he is addressing the issue of adult ADHD by seeing a treating psychiatrist and providing the Society with a consent to exchange information with his treating psychiatrist;

ii. Mr. B. provides the Society with a hair strand sample to be collected by DriverCheck and tested for a three month period which indicates that he is not actively using illegal narcotics;

iii. Mr. B. completes the New Directions Program and the Caring Dad Program and demonstrates an understanding of anger and violence, and its impact on his relationships and on his child, Z.B.; and

iv. Mr. B. demonstrates an ability to control his anger and interacts with the Society’s staff in a cooperative and non-threatening manner.

[2] By order of September 30, 2013 of Madam Justice Toscano Roccamo, Z. was placed in the care and custody of the Society with access to both parents.

[3] The Society has recently assessed a new plan of care for Ms. J. and has determined that it is in Z.’s best interests to be placed in her care and custody subject to the supervision of the Society on terms and conditions pending disposition of the application.

[4] The child protection risks in this case are centred on the issue of domestic violence, in particular violence by the father, Mr. B. There have been two apprehensions of Z. taken from Ms. J.’s care, both due to Mr. B.’s presence in contravention of a no contact order.

[5] On November 27, 2013, Ms. J. made the decision to sever her relationship as well as any and all contact with Mr. B. She has relocated to another jurisdiction and wishes to have Z. placed in her care in her new location.

Domestic Violence

[6] During the course of these child protection proceedings, the Society brought a motion for the production of Ottawa Police Service records. Those records show 39 separate incidents relating to Mr. B., a large number of them being with respect to domestic violence against women including Ms. J. In October 2013, Mr. B. tested positive in a drug screen for cocaine.

[7] Until November 2013, Mr. B. and Ms. J. continued to interact. Both the Society and Ms. J.’s counsel have submitted that Ms. J. was a classic case of a spouse in a domestic violence relationship. The father, Mr. B., has been characterized as an abuser against the mother of their child. It was the position of the Society and the mother’s counsel that Mr. B. has perpetrated a pattern of conduct against the mother that included physical, verbal and financial threats. In addition, Mr. B. has attempted to manipulate the police, and has made threats of harm, harassed and made degrading comments towards the mother.

[8] It is the Society’s and Ms. J.’s position that Mr. B. continues to pose a risk. To that end an assessment was ordered by Madam Justice de Sousa. The assessment was completed by Dr. Duncan Scott, a forensic psychiatrist, on October 15, 2013. Dr. Scott concluded that Mr. B. “has a high risk for spousal assault, which would put his current spouse and child in harm’s way.” He wrote:

A provisional diagnosis of antisocial personality disorder has been suggested. He [Mr. B.] has demonstrated contempt for police authority and women. He is well known to Ottawa Police Services with 75 police contacts, many of which were for domestic situations. From the above review, it would appear that Mr. B. represents a high risk for future domestic violence.

[9] After completing the assessment, Mr. B. advised the Society first that he had completed the assessment and would be willing to take medication if it was recommended, so long as it was not Ritalin; that he had tested positive for crack cocaine but was not prepared to sign a consent for the Society to obtain a copy of the test screen; that he was not certain whether or not he would agree to a hair follicle screen; that he had smoked crack cocaine and spent time with people who took drugs, and that at times because of sharing with other individuals doing drugs, he was not always aware of what drugs they were using; and that he uses marijuana on a regular basis.

[10] In spite of repeated requests by the Society, Mr. B. has failed to provide a hair strand follicle sample, nor has Mr. B. provided the Society with a copy of the screening that had been completed where he had tested positive for cocaine use.

Issues

[11] There are two issues that require consideration in this proceeding:

a) Are there reasonable grounds to believe that there is a risk that the child Z. is likely to suffer harm and that he cannot be protected adequately by a supervision order to the mother, Ms. J.?

b) Is it in Z.’s best interests to continue to have access visits with Mr. B.?

Law Regarding a Care and Custody Motion

[12] The paramount purpose of the Child and Family Services Act, R.S.O. 1990, c. C.11, as amended (“CFSA”), at s. 1(1), is to promote the best interests, protection and well-being of children, and accordingly, the focus of any case must be on the needs and interests of the child.

[13] 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 in or be placed in the care and custody of the Society ... (CFSA, s. 51(2))

[14] 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). (CFSA, s. 51(3))

Law Regarding Access

[15] The court may make, vary or terminate a person’s access to the child and may impose such conditions on the order as the court considers appropriate. When making determinations with respect to access, the determination must be made in the child’s best interests. (CFSA, s. 58(1))

[16] When making determinations with respect to access, the determination must be made in the child’s best interests. According to s. 37(3) of the CFSA:

Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall take into consideration those of the following circumstances of the case that he or she considers relevant:

1. The child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.
2. The child’s physical, mental and emotional level of development.
3. The child’s cultural background.
4. The religious faith, if any, in which the child is being raised.
5. The importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family.
6. The child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community.
7. The importance of community in the child’s care and the possible effect on the child of disruption of that continuity.
8. The merits of a plan for the child’s care proposed by a Society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent.
9. The child’s views and wishes, if they can be reasonably ascertained.
10. The effects on the child of delay in the disposition of the case.
11. The risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent.
12. The degree of risk, if any, that justified the finding that the child is in need of protection.
13. Any other relevant circumstance.

The Consideration of Violence in Child Protection

[17] The Ontario Legislature has recognized that domestic violence is a significant factor in determining the best interests of children. Paragraph 24(4) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”), states that:

In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

(a) his or her spouse;
(b) a parent of the child to whom the application relates;
(c) a member of the person’s household; or
(d) any child.

[18] While the Child and Family Services Act has no comparable section, it is abundantly clear that the consideration of whether a person has at any time committed violence or abuse against their spouse is relevant under s. 37. Section 37 of the CFSA speaks of a child’s needs, level of development, positive relationships and exposure to risk.

Analysis

[19] The Society and Ms. J. submit that it is in Z.’s best interests that he be placed in the care and custody of his mother with no access to Mr. B. In particular, the location of Ms. J.’s new residence is not to be disclosed to Mr. B. in order to ensure her safety and the safety of Z.

[20] Mr. Smith on behalf of Ms. J. agreed with the position of the Society that access to Mr. B. should be suspended. The current circumstances are such that the mother has managed to separate herself from the father and move to a new jurisdiction in an undisclosed location. This arrangement is for her safety as well as for the safety of Z., should he be placed in the mother’s care.

[21] Until now, Z. has remained in Ottawa pursuant to a prior order under which Mr. B. is entitled to supervised access visits. It is noteworthy, as pointed out by both the Society and Mr. Smith, that once Ms. J. was no longer present during the access visits, the frequency of Mr. B.’s access visits to Z. diminished. He began missing visits on a regular basis. It was the theory of both the Society and Mr. Smith on behalf of Ms. J. that, without Ms. J. available to be coerced and/or harassed and intimidated by Mr. B., his interest in visiting with Z. diminished.

[22] Both the Society and Ms. J. acknowledged that, as an abused spouse, Ms. J. is particularly vulnerable to Mr. B.’s coercion to return to the abusive relationship. Should this occur, Ms. J. is aware that the C.A.S. will seek to again remove Z. from her care.

[23] It has taken Ms. J. a significant amount of time and the involvement of the C.A.S. by removing Z. from her care for her to to realize the destructive nature of her relationship with Mr. B. Neither she nor the Society wish for that relationship to resume.

[24] On Mr. B.’s behalf, Mr. Kabongo stressed that Mr. B. loves his son very much and submitted it was in Z.’s best interests that the relationship be maintained.

[25] Mr. B. claimed to have an explanation for each of the incidents in which he responded angrily to the Society or to those around him when visiting with Z. Mr. Kabongo argued that Mr. B.’s anger is as a result of the frustrations he has experienced each time he visited with Z. He also claimed that Mr. B. simply speaks in a loud voice which has been misinterpreted as anger.

[26] Mr. Kabongo also confirmed that Mr. B. acknowledged his drug use but that he did not use drugs during the periods he visited with Z. It was Mr. Kabongo’s position that Mr. B. did not pose a threat to Z. or to the mother and that in fact both parents were still hoping to renew their relationship.

[27] Finally Mr. Kabongo claimed that moving the child to an undisclosed location was a form of punishment to the father and the child and was not in Z.’s best interests. He argued that the weight placed on Mr. B.’s criminal history was irrelevant because Mr. B. had never caused harm to Z.

[28] Mr. Kabongo then noted that all of the Society’s concerns could be dealt with by conditions imposed on the father.

[29] In the case of Children’s Aid Society of Toronto v. S.A.C., 2005 ONCJ 274, Justice Zuker reviewed the impact of domestic violence on women and children including reference to various social science materials. Justice Zuker noted that there are a growing number of cases in which access was denied to an abusive spouse or partner where there were situations of repeated physical violence and emotional abuse by a man directed at a female partner and sometimes at the children (para. 98).

[30] Similarly, in the case of Children’s Aid Society of the Districts of Sudbury and Manitoulin v. T.S., 2009 ONCJ 70, Justice Keast made the following comment at para. 75:

Domestic violence is not simply about physical assaults. It embraces a range of behaviour including mental and emotional abuse of the mother with spill-over to the children. The environment is frequently chaotic, volatile, escalating, charged and degrading. Exposing children to such an environment on a pattern basis is devastating to their development.

[31] The Court has been mindful that the issue of domestic violence is relevant to the consideration of a parent’s access to their children. Justice Curtis in the case of Irving v. Gardner, 2011 ONCJ 689, at paras. 64-65, made the following findings:

64. A child needs stability and routine. Every child is entitled to a parent who is available, consistent, not drinking, and not involved in criminal behaviour.

65. How long does this child have to wait while the father tries to become a better person and a better parent? The court does not order access in order to help the father get over his demons.

[32] Justice Curtis went on to find that a person cannot be a good parent while offering violence and abuse to the child’s other parent. She noted that courts are required to take into account, when determining custody and access, whether a person has committed violence or abuse towards his spouse, the child’s parent, a member of that person’s household, or any child.

[33] Having considered the submissions of the Society, Mr. Smith and Mr. Kabongo, as well as the case law and other material filed in this motion, I agree with the Society and with Mr. Smith that it is in Z.’s best interests to be placed in the care and custody of Ms. J., subject to the supervision of the Society on the terms and conditions they have agreed upon pending disposition of the application.

[34] In doing so, I also find that it is in Z.’s best interests that Mr. B. be restrained from having any contact with Ms. J. Therefore Mr. B.’s access visits with Z. shall be suspended until such time as:

1. Mr. B. has demonstrated that he is addressing the issue of adult ADHD by seeing a treating psychiatrist and providing the Children’s Aid Society with a consent to exchange information with his treating psychiatrist;

2. Mr. B. provides the Society with a hair strand sample, to be collected by DriverCheck and tested for a three month period, which indicates that he is not actively using illegal narcotics;

3. Mr. B. completes the New Directions Program and the Caring Dad Program and demonstrates an understanding of anger and violence, and its impact on his relationships and on his child Z.

4. Mr. B. demonstrates an ability to control his anger and interacts with the Society’s staff in a cooperative and non-threatening manner.

[35] An order on those terms shall issue.

Madam Justice B. R. Warkentin

Released: March 14, 2014

COURT FILE NO.: FC-12-1989

DATE: 2014/03/14

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
Z.B., born […], 2012

BETWEEN:

The Children’s Aid Society of Ottawa
Applicant

– and –

L.J. and G.B.
Respondents

REASONS FOR DECISION ON MOTION

Madam Justice B. R. Warkentin

Released: March 14, 2014