This is a case under Part III of the Child and Family Services Act and is subject to subsections 45(8) of the Act. This subsection and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply with subsection 45(8), read as follows:

45.-(8) 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.

85.-(3) A person who contravenes subsection 45(8) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(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.

CITATION: Children’s Aid Society of Hamilton v. C.J., J.R.J., 2015 ONSC 1203

COURT FILE NO.: C1359/06

DATE: 2014-02-20

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Children’s Aid Society of Hamilton

Applicants

– and –

C.J.

And

J.R.J.

Respondents

Manjeet Singh – Counsel for the Applicants

Susan M. Sullivan – Counsel for the Respondent-Mother

James Mountford – Counsel for the Respondent-Father

HEARD: February 20, 2015

THE HONOURABLE MR. JUSTICE PAZARATZ

1. This is a motion brought by the Children’s Aid Society of Hamilton (“the Society”) seeking a temporary order for supervision upon terms pursuant to the provisions of the Child and Family Services Act (“the Act”).

2. The parents C.J. and J.J. currently have care of their three children, K.J., who is almost nine; R.J., almost eight; and eight month old B.J.

3. The Society proposes that the children remain in the care of the parents but under terms of supervision.

4. The parents dispute that there is any basis for a supervision order. They challenge all of the terms of supervision being proposed.

5. The main issue relates to the Society’s request that both parents participate in drug testing:

a. At the outset – and prior to commencing this Application on January 22, 2015 – the Society formally stated that if the parents submitted to drug tests (including hair strand testing) and passed, the Society would not seek any further court order.

b. Both parents deny inappropriate use of drugs. But they say there is no basis for the Society’s request for drug testing or any supervision. They regard the Society’s request as an unwarranted intrusion and a “fishing expedition”.

6. The Society says it has good reason to have current concerns:

a. Both parents have a history of drug use including illegal drugs and prescription drugs.

b. Their past abuse of illegal substances has impacted on their parenting in relation to the two oldest children.

c. In the past their drug use has increased quickly and created chaos not only in their own lives, but also in the lives of the two oldest children.

d. Between 2012 and 2014 the Society was involved with the family almost continuously. Concerns included domestic violence which the two older children had been exposed to; unsanitary and unsafe home conditions; presence of drugs and weapons in the family home; and bizarre behaviour by the father.

e. In April 2012 even though the Society’s protection application sought an order placing the children in the care of the mother, subject to Society supervision – the presiding Judge found that there was a risk that the children were likely to suffer harm if returned to the care of either parent, and that the risk could not be addressed by means of a temporary supervision order. The oldest two children were placed in the care of a relative, under Society supervision.

f. During that period the parents had been ordered to participate in drug testing. Use of drugs was confirmed, particularly in relation to the father.

g. The Society says the father was often dishonest on the issue of drug use. He only admitted drug use when faced with a drug test.

h. The Society says the mother has had her own drug issues and she lacks insight (or is wilfully blind) with respect to the father’s more serious, long-standing drug problems.

i. Both parents have historically minimized the extent of drug problems in the household, or their impact on their household and the children.

7. Eventually the children were returned to the parents care. The most recent supervision order was terminated on January 15, 2014 – the same day the mother advised the Society she was pregnant with B.J. The Society fully acknowledges that a year ago it agreed to terminate Society supervision because concerns about drug use and inappropriate behaviour within the home had abated. The children appeared to be doing well. The parents were cooperating.

8. However the Society says within months of the supervision order being terminated more problems and issues arose culminating in the Society bringing a fresh protection application on January 22, 2015 seeking a further period of six months supervision (and most importantly, in the Society’s view, drug testing).

9. The new information and concerns relied on by the Society include the following:

a. On March 6, 2014 there was an incident of violence and bizarre behaviour by the father in the family home. The mother confirmed to the Society that police had to be called and she suspected the father was using drugs again. The father then admitted to the Society he was “having a big problem with opiates again.”

b. The father subsequently enrolled in the Men’s Withdrawal Management Center because he admitted his long-standing addiction problems had resurfaced.

c. On March 24, 2014 the maternal grandfather advised the Society the father had contacted him the previous day asking for prescription pills. The father denied this happened. He initially denied using drugs since his discharge from the Men’s Withdrawal Management Center. He subsequently admitted he had misled the Society and had used drugs on March 19 & 20, 2014.

d. On April 10, 2014 the father was admitted to Wayside House, a residential treatment program. He was released on June 6, 2014.

e. On September 22, 2014 the father advised he was attending Wayside House frequently for support because he was dealing with a lot of dental pain.

f. On October 15, 2014 the Society received an anonymous report alleging the parents were using and selling drugs. The parents were contacted and denied the allegation. They speculated as to the identity of the caller, and explained the motivation for what they described as a malicious and false complaint.

g. On October 24, 2014 the Society received a report from an individual whose name was disclosed to the parties. The person alleged that father had recently asked her boyfriend to purchase percocets. The father reportedly said he would only sell the percocets. The informant said she did not believe the mother was using any drugs at the time. Both parties denied this allegation.

h. In December 2014 the Society received information that R.J. was having difficulties in school – just as the oldest two children had displayed difficulties when the parents had previously been involved with drugs. The parents say R.J.’s problems are nothing more than conflict with a particular school mate, and that this is unrelated to anything happening in the home.

i. Also in December 2014 the Society advised the father it wanted to speak to his counsellor at Wayside House about the prescription medications he was taking in relation to dental pain. The Society says the father was evasive and wouldn’t sign a consent for release of information.

j. On January 7, 2015 the Society received another anonymous report from someone who said they knew someone who had been at the parents’ home around New Year’s Eve or New Year’s Day, and there was “heavy” drug use occurring in their home. The reporter said they believed the children had been present when the drug use occurred, but they weren’t sure. They also said the parents appeared to be losing weight and “deteriorating”.

k. On January 9, 2015 the Society received a report from the paternal aunt, who advised that the paternal grandparents had given money to the father to purchase crack cocaine. The paternal grandparents denied this to the Society, and the parents also denied this. The parents noted that the paternal aunt had no credibility because she herself had serious problems with the Society, and mental problems.

l. On January 12, 2015 the Society advised the mother it wanted both parents to participate in a drug test. The mother initially said yes, and later called back to say neither of them would participate in a drug test unless it was court ordered.

m. The Society subsequently made the same request, warning that if the parents refused to voluntarily take drug tests, it would commence court proceedings. The parents repeated that they would not take drug tests without a court order.

10. The Society’s basic position:

a. There have been long-standing, well-established drug problems involving both of these parents (particularly the father) during the past few years. The parents have not been forthcoming about these problems and the children have been jeopardized.

b. The Society has worked with the parents and acknowledged their progress – whenever the parents made progress. The Society has always acted in good faith and chosen the least intrusive options available (as evidenced by the various occasions when they agreed to return the children to the parents, and when the Society agreed to terminate their application only a year ago).

c. But by their own admission the parents have had problems during the past year; the father has again had serious drug abuse issues (as evidenced by his lengthy stay in a residential treatment program); and the Society has received a succession of reports that previously-documented drug abuse has resurfaced.

d. The Society notes that with B.J. being less than a year old, he is particularly vulnerable to any problems or misconduct in the home.

11. The parents filed lengthy materials, essentially admitting all their old problems; denying all the new allegations; and basically alleging the Society is simply predisposed to presuming the worst about them. The parents say they are fed up with this intrusive and unfair treatment.

12. I accept many of the parents’ submissions:

a. Anonymous reports of drug use should generally be afforded little or no weight -- particularly in isolation (and even more particularly when they are based on hearsay, as was the case with one of the calls herein).

b. The credibility of the two named callers to the Society must be considered. The parents’ allegations of malice cannot be discounted.

c. For the most part, collateral evidence suggests the parents and the children are doing well. There is no sign of the kinds of problems which were evidence a few years ago (such as deplorable home conditions) when parental drug use was confirmed.

d. Many of the 24 terms of supervision proposed by the Society relate to issues for which no evidence or allegation has been identified.

13. I have difficulty with other submissions by the parents:

a. They allege the Society is being over-zealous and unnecessarily intrusive. But the history of this file suggests the Society has consistently worked with the family, despite repeated examples of resistance and deception. The Society has repeatedly proposed less intrusive alternatives – on at least one occasion less intrusive than a Judge ultimately deemed appropriate.

b. The parents argue it is unfair to dwell on their history, and they should be given the benefit of the doubt in relation to their current situation. While I certainly acknowledge that people can change, especially with the passage of time, in this case it is simplistic and naïve to suggest that confirmed drug use in 2012, 2013 and 2014 is irrelevant to the legitimacy of a concern that there may be drug use in early 2015. We’re not dealing with “ancient history.”

c. The parents take offence at the Society’s cynicism and mistrust. Candidly, I think their complaint is a bit overblown. Both of them – and (again) particularly the father – have engaged in and lied about the exact behaviour now being repeatedly reported to the Society. The quality of those reports is perhaps dubious in isolation – but in the context the significant history of drug abuse and deception, it would be irresponsible for the Society to ignore its statutory obligation to investigate.

14. Temporary care and custody hearings are determined pursuant to s. 51(2), (3), (3.1), and (3.2) of the Act.

51(1) Adjournments

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.

51(2) Custody during adjournment

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.

51(3) Criteria

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).

51(3.1) Placement with relative, etc.

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.

51(3.2) Terms and conditions in order

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.

51(4) Application of s. 62

Where the court makes an order under clause (2)(d), section 62 (parental consents) applies with necessary modifications.

51(5) Access 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.

51(6) Power to vary

The court may at any time vary or terminate an order made under subsection (2).

51(7) Evidence on adjournments

For the purpose of this section, the court may admit and act on evidence that the court considers credible and trustworthy in the circumstances.

15. The onus is on the Society on a temporary care and custody hearing to establish, on credible and trustworthy evidence, that there are reasonable and probable grounds to believe that there is a real possibility that if children are returned to the parents, that it is more probable than not that they will suffer harm. Further, the onus is on the society to establish that the children cannot be adequately protected by terms of conditions of an interim supervision order. CAS of Ottawa-Carleton v. T. 2000 CanLII 21157 (ON SC), [2000] O.J. No. 2273 (SCJ).

16. The court must make an order that is the least disruptive placement consistent with adequate protection of the child in accordance with subsection 1(2) of the CFSA. CAS of Hamilton v. B.D. and F.T.M. [2012] O.J. No. 1775 (SCJ). The degree of intrusiveness of the society’s intervention and the temporary protection ordered by the court should be proportional to the degree of risk. CAS of Toronto v. J.O.I. [2012] O.J. No. 2016 (OCJ).

17. The overarching principle of the Act is to promote the best interests, protection and well-being of children. Any decisions that are made should consider whether a less intrusive order can be made. The court should protect the autonomy and integrity of the family wherever possible and to respect a child’s need for continuity of care and for stable relationships within a family. CAS Toronto v. Lois P. and Nathan P. 2010 ONCJ 320, [2010] O.J. No 3508 (OCJ); CCAS of Toronto v. M.R. 2003 CanLII 68675 (ON CJ), [2003] O.J. No. 3965 (OCJ).

18. Here, the Society says there are significant risks, but the children can be adequately protected by an interim supervision order.

19. A Society seeking an order for temporary Society care at this early stage of a case has only to demonstrate that it has reasonable grounds to believe that there is a protection risk for the children that justify Society intervention. L.D. v. Durham Children’s Aid Society and R.L. and M.L. 2005 CanLII 63827 (ON SCDC), [2005] O.J. No. 5050 (Div.C.) The burden on the Society at this stage does not go as high as showing that on the balance of probabilities there is an actual risk to the children in the parent’s care. CAS of Toronto v. M.L.R. [2011] O.J. No. 5552 (OCJ); CCAS of Toronto v. C.D. 2015 ONCJ 36 (OCJ).

20. Subsection 51 (3.2) of the CFSA applies to an order being made in accordance with clause 51 (2) (b) for a temporary supervision order. The onus of proof or criteria are the same when the society is requesting a non-removal order pursuant to clause 51 (2) (b) of the Act or a removal order pursuant to clauses 51 (2) (c) and (d) of the CFSA. The issue to be determined in making the non-removal order under clause 51 (2) (b) is whether or not the society has reasonable grounds to believe that there is a probable risk that the children will suffer harm if reasonable terms and conditions of a supervision order are not imposed.

21. Subsection 51 (7) of the CFSA permits the court to admit and act on evidence that the court considers credible and trustworthy in the circumstances. In determining what evidence the court considers to be credible and trustworthy, the evidence must be viewed together. Evidence that may appear not to be credible and trustworthy when viewed in isolation might reach that threshold when examined in the context of other evidence. Family and Child Services v. R.O. [2006] O.J. No. 969 (OCJ); CCAS Toronto v. M.B. 2015 ONCJ 37 (OCJ)

22. Section 50 of the Child and Family Services Act permits a court to admit and rely on proceeding, and in any part of a proceeding under Part III, the past conduct of a person, such as the mother or the grandmother in the case, towards any child at any time in the past. In doing so, any report or statement, written or oral, that the court considers relevant is admissible into evidence.

23. I accept the position of the Society that despite serious risks, placement of the children with the parents is appropriate and the least intrusive alternative.

24. I also accept the Society’s position that terms of supervision are required. If a supervision order is not granted it is more probable than not that the children will suffer harm.

25. I agree with the parents that many of the terms of supervision proposed by the Society are unnecessary and inappropriate.

26. However I agree with the Society that a cornerstone of any supervision should be the requirement that the parents are both to submit to drug testing.

27. Temporary Order:

a. The children K.J., R.J. and B.J. are to be placed in the care of the parents C.J. and J.J., under supervision by the Society, terms of supervision as follows:

1. The mother and father shall cooperate with the Society’s authority pursuant to the Supervision Order to have access to the children and the home as may be considered necessary by the Society Worker to monitor and assess the family situation, including scheduled and unscheduled visits.

2. The Society Worker shall have the right to interview the children in privacy if this is considered appropriate by the Society Worker.

3. The mother and father shall maintain regular communication with the Society worker and shall attend any scheduled appointments with the worker.

4. The mother and father shall consent to the release of any medical, educational and/or day-care information respecting the children which may be requested during the course of the supervision order. Further, the mother and father shall consent to the exchange of information between the Society and those individuals and facilities.

5. The mother and father shall not possess or consume any illegal drugs, and shall not allow any person to have contact with the children, or be in the home with the children who appears to be under the influence of illegal drugs.

6. The mother and father shall not abuse prescription drugs and shall take any drugs prescribed by the doctor strictly in accordance with the prescribed dosage.

7. The mother and father shall sign consents, releases or Forms 14’s required by the Society Worker to obtain medical, counselling, psychiatric, or educational information regarding her/him self or themselves during the course of this supervision order, and consents to the Society obtaining this information and communicating with these professionals or institutions.

8. The mother and father shall advise the Society immediately if the Police attend the home, or if he/she/they is/are charged with a criminal offence, or convicted and sentenced, and provide particulars of the charge, conviction or sentence.

9. The mother and father shall attend for random drug testing as directed by the Society worker at a facility chosen by the Society worker.

10. The mother and father shall attend for a drug assessment and follow any treatment recommendations if deemed necessary.

11. The mother and father shall follow the direction of the Society worker and attend any reasonable services recommended by the Society worker, including counselling.

12. The mother and father shall immediately report any child management difficulties to the Society worker.

13. The mother and father shall cooperate and follow through with the services of any Society parent support worker in order to address parenting issues.

14. The mother and father shall provide adequate and safe housing suitable for the children’s needs and maintain it in a clean and orderly fashion.

15. The mother and father shall notify the Society immediately of any change in address or telephone number including exact address and telephone number.

Pazaratz, J.

Released: February 20, 2015

CITATION: Children’s Aid Society of Hamilton v. C.J., J.R.J., 2015 ONSC 1203

COURT FILE NO.: C1359/06

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

CHILDREN’S AID SOCIETY OF HAMILTON

Applicants

-and-

C.J. and J.R.J.

Respondents

REASONS FOR JUDGMENT

The Honourable Mr. Justice A. Pazaratz

Released: February 20, 2015