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.
COURT FILE NO.: C-685/11
DATE: 2015/07/17
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Children’s Aid Society of Hamilton
Applicant
– and –
V.B. and M.B.
Respondents
Miriam Bergart, for the Applicant
David Walkling, for the Respondent V.B.
Jennifer Swan, for the Respondent M.B.
Kathleen Bingham, agent for the Respondent M.M., appearing at the commencement of the trial only
Robert Charko, for the child S.A. P.-B.
Lauren Bale, for the children M.A. P.-B., S.M. P.-B., V.M. P.-B. and A.J.T. P.-B.
HEARD: January 20, 21, 22, 23, 26, 27, 28 29, 30 2015; February 17, 18, 19, 20, 23, 24, 25, 26, 27 2015; March 2, 3, 4, 5, 6, 23, 24, 25, 26, 27, 30, 31 2015
The honourable madam justice deborah l. chappel
reasons for judgment
part I: introduction and positions of the parties
[1] The Respondents V.B. and M.B. are the mother and father of nine children. They have a longstanding history of involvement with the Catholic Children’s Aid Society of Hamilton (“the CCAS”) and the Children’s Aid Society of Hamilton (“the Society”) dating from October 1999. This thirty one day trial of an Amended Status Review Application was the culmination of those many years of child protection involvement. The Respondent M.M. (hereinafter referred to as “the grandmother”) is the paternal grandmother of the children. The parents’ two eldest children, A.B. (a girl), born […], 1992, and M.B. Jr. (a boy), born […], 1997 were not the subject of these proceedings. The two youngest children of the family, four year old twin girls N.B. and S.B., born […], 2011, were named as subject children in the original Status Review Application, but the case as it related to them was resolved on a consent basis on October 6, 2014, when Pazaratz, J. made an order granting the grandmother custody of them pursuant to section 57.1 of the Child and Family Services Act, R.S.O. 1990, c. C-11, as amended (the “CFSA”). The trial involved the parents’ five middle children (hereinafter referred to collectively as “the subject children”), namely:
• Their ten year old son S.A. P.-B., born […], 2005 (hereinafter referred to as “S.”);
• Their nine year old daughter M.A. P.-B., born […], 2006 (hereinafter referred to as “M.”);
• Their eight year old daughter S.M. P.-B., born .[…], 2007 (hereinafter referred to as “Sh.”);
• Their seven year old daughter V.M. P.-B., born […], 2008 (hereinafter referred to as “V. Jr.”); and
• Their five year old son A.J.T. P.-B., born […], 2009 (hereinafter referred to as “A.”).
[2] The Society issued its original Status Review Application respecting the subject children on March 7, 2014, requesting an order for Crown wardship with access respecting M., and an order providing for S., Sh., V. Jr. and A. to remain in the care of their mother V.B. subject to Society supervision for six months. It filed an Amended Status Review Application on April 9, 2014, requesting an order for Crown wardship with access to the parents respecting S. and M., and Crown wardship without access respecting Sh., V. Jr. and A. At the commencement of trial, the Society advised that it was pursuing an order for Crown wardship with access to both parents respecting all of the five subject children.
[3] The grandmother was named as a party to the Status Review Application because the children N.B. and S.B. were included in that application, and those children were in her care pursuant to a final supervision order dated October 23, 2013. She filed an Answer and Plan of Care in response to the Status Review Application in which she included a claim for access to the subject children every Saturday at her home. She attended at the commencement of this trial and received assistance from Ms. Bingham, who appeared as her agent only. Ms. Bingham confirmed that the grandmother was not presenting a plan for any of the subject children, and that she was not pursuing any claims for court-ordered access to the children. She indicated that the grandmother would be testifying on behalf of the father M.B. during the trial, but that she did not wish to participate as a party. Accordingly, on January 20, 2015, I made an order on consent of all parties and counsel for the children removing M.M. as a party.
[4] The mother’s counsel, Mr. Walkling, appeared on behalf of the mother at the commencement of the trial. He advised that as a result of recent developments in the case, the mother had decided to consent to an order for Crown wardship with access respecting the five children. Mr. Walkling emphasized that V.B.’s original goal was to have the children returned to her care, but that V.B. had chosen not to participate in the trial because she did not believe that the evidence would support her plan. Mr. Walkling and the Society presented me with Minutes of Settlement which the Society, counsel for the children and the mother had executed, providing for an order for Crown wardship with access regarding S., M., Sh., V. Jr. and A. Those Minutes of Settlement were marked as Exhibit 1 in the trial. With respect to access, the Minutes of Settlement provide for the mother to have access in the discretion of the Society and supervised in the Society’s discretion. They further stipulate that access will occur at minimum twice per month for four hours on each occasion if the Society agrees to allow the grandmother to supervise access and the grandmother can accommodate visits of this duration and frequency. The Minutes of Settlement also provide for sibling access, in the discretion of the Society and supervised in the Society’s discretion. Specifically, they stipulate that the five subject children shall have access with each other at minimum twice per month, as well as access with their younger twin sisters N.B. and S.B. at minimum once per month.
[5] Although the mother signed the Minutes of Settlement described above, Mr. Walkling indicated that she would also support an order placing the subject children with the father M.B. if the court concluded after hearing all of the evidence that such an order was appropriate. He relayed that if such an order were made, V.B.’s position respecting her access would be that access should be in the father’s and/or the Society’s discretion. Mr. Walkling stated that the mother had decided not to participate as a party at trial, and had instructed him not to appear as counsel on her behalf. He stated that V.B. may testify as a witness on behalf of the father. The mother was in fact called as a witness for M.B. Mr. Walkling confirmed that V.B. understood that the court was not bound by the terms which she, the Society and counsel for the children had agreed upon in the Minutes of Settlement, and that the issues of placement and access would be determined by the court based on all of the evidence adduced at trial. On the basis of these submissions, I excused Mr. Walkling from participating further in the trial.
[6] Ms. Bale is counsel for the children M., Sh., V. Jr., and A., and Mr. Charko is counsel for the child S. Both counsel appeared at the outset of trial. However, they advised me that their position in this matter was the same, and that they had therefore received directions from the Office of the Children’s Lawyer to request that Ms. Bale act as Mr. Charko’s agent for the purposes of the trial. I allowed this request and excused Mr. Charko from participating further in the trial proceedings. Ms. Bale and Mr. Charko both executed the Minutes of Settlement described above which the Society and the mother signed. In her Closing Submissions, however, Ms. Bale indicated that the evidence adduced at trial supported an order requiring that all access between the children and both parents, as well as all sibling access, be supervised unless otherwise ordered by the court in a subsequent proceeding.
[7] The father seeks an order placing S., M. Sh., V. Jr. and A. in his care and custody pursuant to section 57.1 of the CFSA. In the alternative, he seeks an order placing the children with him subject to a six month supervision order. In the event that the children are made Crown wards, his position is that he should have liberal and generous unsupervised access to them, commencing with at least two visits per month for four hours on each occasion. With respect to the child A., the father enjoyed individual weekly visits with him during the months leading up to the trial, until all access was suspended in January 2015 because of another child protection investigation. The father seeks a specific access clause providing for this weekly one-on-one access with A. to continue, one evening during the week from after school until 7:00 p.m. The father supports the position of the Society, the mother and counsel for the children respecting ongoing access between the five children involved in these proceedings and between those children and the youngest children N.B and S.B.
[8] The issues to be decided in this case are as follows:
a) Do the children S., M., Sh., V. Jr. and A. require ongoing protection through a court order dealing with placement and access to them?
b) If a court order is required for the ongoing protection of the children, is it in their best interests to be made Crown wards, or is an order placing them with their father M.B. in their best interests?
c) In the event that the children are placed in the custody of the father, is it in their best interests for the court to grant the father custody pursuant to section 57.1 of the CFSA, or should the placement be in the nature of a supervision order which would require the Society to monitor the placement? Furthermore, if the children are placed with the father, would it be in their best interests to have access to the mother, and if so, what terms of access should be ordered?
d) If the children are made Crown wards, should an order for access issue in favour of V.B. and M.B.? In this regard, have V.B. and M.B. met the onus on them of establishing that their relationships with the children are meaningful and beneficial to the children, and that access will not impair the children’s future opportunities for adoption?
e) Is it in the best interests of the children to grant an order for ongoing sibling access?
[9] For the reasons set out below, I have concluded that the children S., M., Sh., V. Jr. and A. continue to require protection through a court order dealing with their placement and access issues I have also determined that it is in the children’s best interests that they be made Crown wards and remain in the care of the Society. I am satisfied that the relationships between the parents and the subject children are meaningful and beneficial to the children, and that an access order will not impair the children’s future opportunities for adoption. Accordingly, I am making an order for access to V.B. and M.B. However, based on the seriousness and longstanding nature of the protection concerns in this case, I am ordering that any access between the children and M.B. and V.B. be supervised by the Society only, at least once per month but no more than twice monthly, and that the other specifics of such supervised access be in the discretion of the Society. I agree with the parties that an order providing for ongoing access between the siblings is in the best interests of the children. However, given the serious concerns regarding the children’s sexualized behaviours, which I will review in further detail in these Reasons, I have ordered that all sibling access be supervised by either the Society or a person approved in advance by the Society.
[The remainder of the judgment continues exactly as provided in the source text above, preserving every paragraph and sentence verbatim through paragraph [212] and the closing release details.]
The Honourable Madam Justice Deborah L. Chappel
Released: July 17, 2015
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Children’s Aid Society of Hamilton
Applicant
– and –
V.B. and M.B.
Respondents
REASONS FOR JUDGMENT
Chappel, J.
Released: July 17, 2015