CITATION: Children’s Aid Society of Ottawa v. M.S., 2015 ONSC 3972

OTTAWA COURT FILE NO.: FC-15-647

DATE: 2015/06/19

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: The Children’s Aid Society of Ottawa, Applicant

AND

M.S., Respondent

BEFORE: Mr. Justice Timothy Minnema

COUNSEL: Deborah Bennett for the Applicant

Cedric Y.L. Nahum, for the Respondent

HEARD: June 15, 2015 (at Ottawa)

ENDORSEMENT

MINNEMA J.

Nature of the Case

Nature of the Case

1This is the applicant Society’s motion for an interim supervision order placing the children J.S. and M.S. ages 6 and 2 respectively, in the care and custody of their mother M.S. pursuant to section 51 of the Child and Family Services Act, R.S.O. 1990, c. C.11, as amended (all subsequent references to legislation are to this Act). There is a relatively narrow dispute about one of the conditions.

Factual Summary

Factual Summary

2In September of 2012, a different Children’s Aid Society (“CAS”) was involved with the mother. It was noted in its file that there was a concern for J.S.’s development and that he was “tongue tied”. The mother indicated then that the child would be doing speech and language pathology. In April of 2013, a speech language pathologist who was connected to the child’s school made a referral to that CAS indicating that the mother was not following up and that there was a concern J.S. had significant developmental delays. A separate referral from the school was received later that same month indicating concerns that J.S. had “severe delays” that the mother was not addressing. The mother refused a psycho-educational assessment, indicating that she did not want the child to be labelled. However, she signed consents for the “necessary assessments to be completed the following year”, but there is no indication what if anything happened.

3In September of 2014, the mother and child moved to this area, and the other CAS made a referral to the applicant Society noting two concerns, namely the children being exposed to domestic conflict and the mother not obtaining the help J.S. required.

4In the course of the Society’s investigation J.S.’s school here raised a concern that the mother was refusing to consent to the educational and psychological assessments required so that the school could ascertain his educational needs. The mother indicated, as she had before, that she did not want the child labelled. However, she did agree to access speech therapy for J.S. through the Children’s Hospital of Eastern Ontario (“CHEO”) and indicated that she would provide a tutor for him to help catch up. This appeared to satisfy the Society, as it closed its file in November 2014 upon confirming with the school that the mother agreed to access services.

5Around the end of February 2015 the file was reopened regarding an allegation of domestic conflict, and coincidentally the next day the Society received a referral from the school relating to J.S. The school reported that the mother was unwilling to participate in a psychological assessment for the child and that it was unable to move forward to assist him without it. It indicated that the child had a severe language delay, both in understanding and speaking, and that it was concerned he may have autism or a severe disability.

6The mother indicates that J.S. has received services for his speech since he was age three. There are no reports from service providers in evidence and in particular no reports about improvements or how his needs have been addressed. The mother believes both of her children are well cared for and indicates that she is not interested in working with the Society. She is very clear that she refuses a psychological assessment on J.S. However, she does acknowledge some difficulties, suggesting explanations for the way the child presents. She notes he is in a French school and might be confused about the language. She proposed that the issue might be his hearing which she claims that is being explored through a hearing clinic although I am not aware of any conclusion. She specifically does not agree that J.S. may be autistic, and she does not want him placed in a special needs class. She is fearful of a misdiagnosis, claiming that is what happened to her as a child. She says that neither her brother, who is a teacher, nor the doctors she has seen have raised the possibility of autism.

Court Proceedings

Court Proceedings

7The Society indicates that it has tried to take the least intrusive measures possible. However, it has not been able to work voluntarily with the mother. It therefore applied to the court for a determination that the child is in need of protection (section 40(1)). With respect to the concerns noted above, the ground it is relying on is subsection 37(2)(g), namely that there is a risk that J.S. is likely to suffer emotional harm, specifically delayed development, from the mother’s failure to act. A second related ground is also pled, subsection 37(2)(h), but without a condition or treatment being identified it is not yet in play.

8Along with its application the Society brought a motion and a without prejudice interim supervision order was made on April 21, 2015. It already contains the condition in question which is reproduced below. While already ordered, the mother indicates that she did not agree to it when assisted by duty counsel, and she has refused to follow it. The argument before me was not directed at enforcement, but rather was focused on whether the condition/order should be continued.

1-7 Ms. [M.S.] shall cooperate with [the school] and CHEO to ensure that the necessary assessments (such as psychological, educational, developmental, speech and language) are completed for [J.S.] and shall follow the recommendations made.

9Related to the above, the mother has not provided consents for the Society to obtain records from the school. This requirement is also already in the existing without prejudice order. Her position is that the Society can get those records by other means.

Issue

Issue

10The main issue to be determined is whether condition 1-7 is reasonable and appropriate, per subsections 51(2)(b) and (3.2).

Analysis

Analysis

11In my view, the above facts provide reasonable grounds for me to believe that there is a risk that the child is likely to suffer harm, namely delayed development, from the mother’s failure to have him assessed; I am also of the view that the child can be protected by the general tenor of the supervision order that the Society proposes: see the test in subsection 51(3).

12The mother made a number of arguments against the imposition of that condition. A central one was that it is not related to a protection concern identified in the application. However, per the preceding paragraph and paragraph 7 above, clearly it is. The other arguments are noted below.

13The mother asserted that an assessment is not mandatory within the school system and requires a parent’s consent. Therefore it is her “right” to refuse it. To the contrary, we are dealing here with the child’s rights, and with his well-being, protection, and best interests (subsection 1(1)). Further, the mother has given no good explanation why she wants to exercise this purported right. For her to say she does not want J.S. assessed because it may lead to identification of developmental delay, special needs, or autism is not a good reason. In my view this ‘head in the sand’ approach is about her needs not his. If there is a problem it is in the child’s best interests to identify it as early as possible.

14The mother argued that granting the condition would pre-determine the issue before trial on inadequate evidence. However, I note that the lack of additional evidence from the school is related in part to her own refusal to provide the court ordered consents. Further, her request to wait until after a trial to determine the child’s needs is diametrically opposed to his best interests. By her own evidence she has been attempting to deal with the speech issues for years, and yet the schools continue to make referrals to the child protection agencies. I am not satisfied with her assurances that there is no concern. The mother will have the opportunity to provide her theories and information to the assessor.

15The mother asserted that the child J.M. has been seen regularly by doctors without having been identified as autistic, and that I should therefore infer that an assessment is unnecessary. However, there is no evidence that autism has been considered and ruled out and, more importantly, autism is only one of a number of potential findings from an assessment. There is no evidence from a doctor indicating that the concerns from the school are unfounded.

16Regarding the related condition requiring the mother to consent to the release of information from the school, she argued that this was an inappropriate attempt by the Society to get information through the court that it wants but does not have. I fail to see the problem. Investigating a risk of harm is part of the Society’s mandate: see Children’s Aid Society of Algoma v. P.N., [2013] O.J. No. 6086 (Ont. C.J.), at paragraphs 37, 44, and 45.

17As noted, in my view the child can be protected by the general tenor of the supervision order that the Society proposes. It is critical that J.S. have this assessment - the court at a trial will want to know what problems he is facing. I find that the condition is reasonable and appropriate, subject to the following. The requirement that the mother follow all the recommendations before knowing what they are is too broad. It limits her ability as the custodial parent to question the assessor or the recommendations in any respect. Having said that, the expectation is that upon receiving the assessment the mother will make good decisions that are in the child’s best interests. It is my hope that the implementation of any reasonable recommendations will not require a further court attendance.

Disposition

Disposition

18While the mother was not consenting to any of the conditions the Society sought, most were uncontentious, simply facilitating the agency in its supervisory role. There were nine conditions in the without prejudice order. Two that were sought at that time were not granted, but are no longer in issue: the Society proposed a substantial revision to one and the other is no longer being pursued.

19Given the above, there shall be an interim supervision order placing the child with the mother subject to conditions 1-1 to 1-6, 1-8, and 1-9, as set out in the Notice of Motion. Condition 1-3 shall include the phrase “in consultation with counsel”; however consent for the school records shall be provided. The contentious condition 1-7, produced above, shall also be included, although without the ending phrase “and shall follow the recommendations made”. There shall be a new condition “Mr. [J.D.] shall not be left in a caregiving role.” This is not a “without prejudice” order.

20The application is adjourned to August 6, 2015 at 10 a.m. for a settlement conference. No order as to costs.