ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FC-06-122

DATE: 2015/07/10

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 J.M.-M., born […], 2009

BETWEEN:

THE CHILDREN’S AID SOCIETY OF OTTAWA
Applicant

– and –

E.M. and
D.M.M.

Respondents

Danielle Marchand, agent for Deborah Bennett, for the Applicant

E.M., unrepresented

Karen Leef, for the Respondent D.M.M.

HEARD: July 7, 2015 (at Ottawa)

REASONS FOR JUDGMENT

shelston j.

Introduction

[1] This is a motion by the Children’s Aid Society of Ottawa (the “Society”) for an order that the child J.M.-M., born […], 2009, be placed under the care of the Society pending disposition of the application and that access to the parents shall be at the discretion of the Society, including the level of supervision, duration, location and frequency.

[2] The concerns noted by the Society regarding the parents were their lack of co-operation, a history of domestic violence, drug and alcohol abuse and neglect.

[3] On June 1, 2015, the Honourable Justice Parfett issued a temporary, without prejudice, order placing the child J.M.-M in the care of the Society and granted access to the parents a minimum of three times per week.

Background

[4] The Society has been involved with the mother dating back to 1997 regarding other children and the father starting in 2008 with his other children. Sixteen referrals were made to the Society regarding the parents, eight of which required investigation.

[5] The current involvement of the Society started on March 17, 2015, when an anonymous referent called to report concerns of drug use and historical domestic violence by the parents. The allegations were that the parents were “dangerous people” and that the father had in the past beat someone with a hammer and shot another person. Further, the couple were said to be heavy drug users and that the couple had fabricated something on their leg to pass their weekly urine screens with their daughter’s urine.

[6] On March 23, 2015, a worker made an unannounced visit to the home. The parents denied any drug or alcohol use or any domestic violence.

[7] On March 26, 2015, workers from the Society attended for a home visit. Both parents were co-operative and allowed for private conversation with the children. They also signed forms allowing the Society to speak to the Ontario Addiction Treatment Centre (OATC) and their assigned doctor, Dr. Yermus. The mother also provided her consent for her family doctor. Again both parties denied any drug use or providing false urine screens. The workers interviewed a sibling age 22 who denied witnessing any substance abuse or domestic violence. This is confirmed by the other sibling age 16.

[8] The workers interviewed the youngest child J.M.-M., age 5, who stated that the parents fought more than the sisters were identifying.

[9] On April 2, 2015, the family doctor advised the Society that the mother asked for help when she was abusing drugs back in 2011; that she had referred her to a plastic surgeon to deal with glass slivers in her face; that she suffered from fibromyalgia and arthritis and that she had not shown up for five scheduled appointments since her last visit.

[10] On May 13, 2015, Dr. Yermus of the OATC indicated the parents tested positive for cocaine and/or opioids on screens between March 1 and April 21, 2015. The doctor also noted that the parents interacted with their daughter at the clinic in a caring and loving fashion.

[11] On May 14, 2015, the Society’s worker contacted the R[…] Public School who advised the child had been absent for 116 days and late for 30 days in senior kindergarten and while she was in junior kindergarten she had been absent for 60 days and late 80 days.

[12] On May 14, 2015, the Society attended unannounced at the family home to discuss the reported drug use. The father admitted to have been taking “speed” on one occasion a few weeks before the Society visited the residence. The parents adamantly denied using any cocaine, morphine or oxycodone. Both parents denied that any drug use affected their parenting.

[13] The Society was also concerned because according to their information, the parents were going to stop their methadone program which could cause a relapse in drug use. During the course of the investigation, the Society also received evidence that the parents were unable to wake up to have the child attend school. The school confirmed that there were no behavioural issues and that the child was quiet, got along with others, but she did not know her letters and could not print.

[14] Further testing between April 28 and May 19, 2015 confirmed that the parents tested positive for cocaine and/or morphine or oxycodone as well as amphetamines and methamphetamines. Dr. Yermus indicated that if the parents had an abrupt discontinuation of methadone they were at high risk of relapse to increased drug use and he was concerned if that the parents may overdose if they used opiods while taking methadone.

[15] Based on the information obtained, on May 27, 2015 the Society apprehended the child unannounced at the family residence. The workers attended at the home and both parents denied all reports of domestic violence, drug use or providing false urine screens.

Test for a Temporary Order for Care and Custody

[16] The Society seeks an order that the child be placed in temporary care and custody of the Society pending disposition of the application and that the parents have access at the discretion of the Society, including the level of supervision, duration, location and frequency.

[17] Under subsection 51 (3) of the Child and Family Services Act, R.S.O. 1990, c. C.11, the burden of proof is on the Society to satisfy the court that there are reasonable grounds to believe that there is a risk that a child is likely to suffer harm and the child cannot be adequately protected by an order returning the child to parental care with or without an interim supervision order. The test set out by Blishen J. in Children’s Aid Society of Ottawa-Carleton v. T., 2000 21157 (SCJ), at para 10, is as follows:

… The Children’s Aid Society must establish, on credible and trustworthy evidence, reasonable grounds to believe that there is a real possibility that, if the child is returned to his or her parents, it is more probable than not that he or she will suffer harm. Furthermore, the Society must establish that the child cannot be adequately protected by terms and conditions of an interim supervision order to the parents.

[18] In Children’s Aid Society of Toronto v. L.P., 2010 ONCJ 320, the court held:

A court must make an order that is the least disruptive placement consistent with the adequate protection of the child in accordance with section 1(2) of the CFSA. The degree of intrusiveness of the Society intervention and the temporary protection ordered by the court should be proportional to the degree of risk.

[19] In Catholic Children’s Aid Society of Toronto v. J.O., 2012 ONCJ 269, 20 R.F.L. (7th) 471, the court indicated that the degree of intrusiveness of the society’s intervention in the temporary protection order by the court should be proportional to the degree of risk.

Application of the Test to the Facts Herein

[20] The evidence discloses that the parents have had a long involvement with the Society based on incidents of past incidents of physical violence, domestic violence, drug use, alcohol abuse, and lack of co-operation.

[21] The current proceeding was commenced by an anonymous referent on March 17, 2015 that has resulted in the Society taking the position that the risk to the child is based on three concerns:

(1) The parents’ drug use and lack of co-operation as to how it could affect their ability to parent the child;

(2) The child witnessing domestic violence; and

(3) The child’s lack of attendance at kindergarten and failing to follow up with medical appointments.

Drug Use by the Parents

[22] The evidence discloses that between March 1 and April 21, 2015 and again from the period of April 28 of May 19, 2015, the parents tested positive for illegal drug use. In response to the inquiries by the Society, the parents took the view that the drug use had no effect on their ability to parent as they never did the drugs that would affect their ability to parent.

[23] The Society’s position is that the parents have not taken any addiction counselling and only recently have been provide clean drug tests and that they have not provided any drug screening test results in the past three weeks.

[24] The legal test is that the Society must provide credible and trustworthy evidence that is more probable than not that the child will suffer harm.

[25] The investigation started based on an anonymous call. Upon review of that evidence, I find that the information received is not credible or trustworthy. Firstly, the issue of falsifying the drug screening results was predicated on the parents allegedly substituting their daughter’s urine. However, the evidence is that the tests were supervised at all times. Further, if the child’s urine was substituted, then her urine would not show signs of methadone. The test results all showed signs of methadone. I conclude that the tests were not altered.

[26] The Society’s case notes confirm that there were no observable hazards in the home prior to the apprehension when the protection workers made three visits to the home some being unannounced. The evidence is that child was observed to be clean, well-dressed and engaged in appropriate activities.

[27] There is evidence that the parties were upset at the Society’s involvement. However, the parties were co-operative, signed the consents; allowed the worker to have a private conversation with the child; encouraged the child to meet with the workers as she presented as being shy and that they left the room so she could have a private conversation.

[28] Both parents have stopped using drugs since the child was removed from their care. The parties attended for the drug testing on May 26, June 2, June 9 and June 23, 2015, and the test results were all negative. The parties are continuing to attend the methadone program but have changed doctors. They had planned to change doctors before the involvement of the Society and now are under the care of Dr. Ujjainwalla who is providing them one to one counselling on recovery.

[29] The parties now attend Narcotic Anonymous meetings on Mondays and both have sponsors. The parents are commencing group sessions and that the parents will be tested for drug use randomly four times per month and they have been complying with the treatment and attend all appointments.

[30] Both parents have children from previous relationships and two of those children reside with the parties, being K.M., 22 years of age, and D.D. 16 years of age. Both of these individuals have confirmed that they have not observed the parents using drugs in their presence or in the presence of the child J.M.-M.

[31] A second allegation was that the marks on the mother’s face were as a result of drug use but the case notes indicate that the anonymous referent had no direct evidence. The mother provided a letter from her family doctor referring her to a plastic surgeon. The mother’s evidence that the injury to her face is related to inadvertently picking up a towel that she did not know contained pieces of glass are corroborated by her family doctor.

[32] I am concerned that the parents tested positive for illegal drugs and can understand why the Society had commenced this application. However, the parties have made significant efforts to deal with this issue.

Domestic Violence

[33] The case notes from the Society indicate that again the anonymous referent had no current knowledge of any domestic violence. There are no police reports, no evidence of police attendance and no disclosures by the 22 and 16 year old individuals residing within the home.

[34] It appears that the main evidence supported on by the Society with respect to domestic violence are disclosures made by the five-year-old child, J.M.-M. Disclosures made by the child are denied by the parents and raise doubts as to the trustworthiness and credibility of the statements made by the child. The child made reference to an incident that occurred when the house suffered a flood. The mother’s evidence is the flood occurred 4 years ago. I do not find that the child’s allegations are credible or trustworthy.

Lack of Attendance at Kindergarten

[35] The Society relies on the fact that in 2014-15 the child missed 116 days of senior kindergarten and was late on 30 occasions. Further, in 2013-14 she missed 60 days of junior kindergarten and was late on 80 occasions. The mother’s evidence is that if the child did not wish to go to junior or senior kindergarten, she did not send her. With respect to the allegation that the child is academically behind, the evidence provided by the mother is that the child will be starting grade one in September 2015. There is no evidence from the school to indicate that the child was not properly fed, not properly dressed or she was fatigued or any factor that the court could consider in determining that the child was not properly cared for.

Should the Child Stay in Care or be returned to the Parents under an Interim Supervision Order?

[36] I find that the parents have been co-operative with the Society, by allowing announced and unannounced visits; allowing the Society to interview the child separately; signing the required consents and acting responsibly when the child was apprehended under very trying circumstances. Further, the evidence is that the foster mother reached out to the mother for assistance to help the child adjust to foster care. The evidence also is that during access they were co-operative and clearly there is a strong bond with the child. The parents talk to the child every day to re-assure her while in foster care.

[37] The parents have issues with illegal drugs use. Since May 26, 2015 the parents have provided drug test results that are negative for illegal drug use. They have been accessing services that have only been in place for short period of time.

[38] I agree with the Society that there are reasonable grounds to believe that there is a risk that the child is likely to suffer harm if the parents regress into the use of illegal drugs. However, the placement of the child with the parents is appropriate and is the least intrusive alternative and that the risk can be adequately protected by a supervision order to the Society with the conditions set out below.

[39] I order that the child J.M.-M. be placed in the care of her parents, D.M.M. and E.M. under the supervision of the Society subject to the following conditions:

1. That the parents’ drug tests show no evidence of any illegal drugs and that the parents disclose to the Society all such tests results taken since June 23, 2015 and forward from that date;

2. The mother and father shall co-operate with the Society’s authority pursuant to the supervision order to have access to the child in the home as may be considered necessary by the Society worker to monitor and assess the family situation including announced and/or unannounced visits;

3. The Society worker shall have the right to interview the child in privacy at home or in the community;

4. The mother and father shall maintain regular appointments with the Society worker and shall attend any schedule appointments with the worker;

5. The parents shall sign consent forms requested by the Society upon consultation with counsel;

6. The mother and father shall consent to the release of any medical or educational information respecting the child which may be requested during the course of the supervision order. Furthermore, the father and mother shall consent to the exchange of information between the Society and those individuals and facilities;

7. The parents shall continue with the methadone program for so long as recommended by Dr. Mark Ujjainwalla. They shall attend all regular and all required appointments with Dr. Mark Ujjainwalla and follow all treatment recommendations;

8. The mother and father shall not use illegal drugs and should not abuse any prescription drugs and shall take any drugs prescribed by the doctor strictly in accordance with the prescribed dosage;

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

10. The parties shall attend Narcotics Anonymous meetings at a minimum of once per week;

11. The parties shall attend for urine screens as requested by the Society;

12. The parents shall ensure that the child attends school as of September 2015 on a regular basis and shall advise the Society of any days that the child does not attend and the reason for the non-attendance;

13. The parents shall ensure that the child’s medical and dental needs are met by attending all regular and as required medical and dental appointments and following all recommendations of the doctor or dentist;

14. The parents shall ensure the child is not exposed to any violence in the home or in the community;

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

16. The mother and father shall maintain adequate and safe housing suitable for the child’s needs and maintain it in a clean and orderly fashion; and

17. The mother and father shall notify the Society of any change in their address or telephone number within 48 hours of any such change.

Shelston J.

Released: July 10, 2015

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 J.M.-M., born […], 2009

BETWEEN:

THE CHILDREN’S AID SOCIETY OF OTTAWA
Applicant

– and –

E.M. and
D.M.M.

Respondents

REASONS FOR JUDGMENT

Shelston J.

Released: July 10, 2015