SUPERIOR COURT OF JUSTICE - ONTARIO
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-2067/11
DATE: 2015-10-08
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Children’s Aid Society of Hamilton, Applicant
AND:
J.T., Respondent (Mother)
J.F., Respondent (Father)
T.K., Respondent (Father of E.K.)
M.T., Respondent (Maternal Grandmother of E.K.)
BEFORE: The Honourable Mr. Justice R. J. Mazza
COUNSEL: Jacalyn Walters, Counsel for the Applicant
S. Sullivan, Counsel for Respondent (Mother)
A. Katz, Counsel for Respondent (Father)
M.T., Self-Represented
HEARD: October 7, 2015
ENDORSEMENT
[1] The issue before me is whether or not I should place all three children with the maternal grandparents or whether I should place the children E.1 and E.2 with their biological father, J.F.
[2] I have considered the affidavits submitted by the parties, along with the attached exhibits, and I have considered counsel’s submissions.
[3] Ms. Walters for the Society submitted that E.1 and E.2 be placed with their biological father, E.1 being born […], 2010, and E.2 being born […], 2013.
[4] There appears to be no dispute that E.3 is to be placed with the maternal grandparents.
Ms. Sullivan’s Submissions
[5] Ms. Sullivan on behalf of the mother J.T. submitted that all three children should be placed with the maternal grandmother, citing concerns over the environment in which E.1 and E.2 would be residing. Specifically, she made reference to Paragraph 45 of J.T.’s affidavit wherein the child E.1 as of August 20, 2015, alleged that J.F. “sells guns, that his father is not a good person, that his father is not good to him, that his father hits him, that he hurts him and that he has cocaine and marijuana in his home.”
[6] She states that not only are these allegations which E.1 made to his mother, but again the allegations were made to Dr. Sindhu of MUMC, who in fact passed these concerns on to the society.
[7] She further submitted in her discussion with Mr. H., a relative of J.F., that J.T. need not be concerned because there were no guns and E.1 would be safe.
[8] Moreover, Ms. Sullivan submitted that if the children E.2 and E.1 were allowed to live with their father, it would mean that one of the children would have to change schools because J.F. lives in a different catchment area for the child E.1.
[9] The maternal grandmother, M.T., also stated based on her affidavit material that the children are used to living with each other, that it has always been a family unit with the children under the roof of the maternal grandparents, that they play together and that they eat together and that, therefore, it would be disruptive to the children to interfere with this pattern of comfort.
Submissions by Ms. Katz
[10] Ms. Katz on behalf of J.F. submitted that approximately the first 40 paragraphs of the affidavit of J.T. are in fact historical, and refer to incidents prior to the most recent order of Justice Sweeny dated May 14, 2015.
[11] In that order, J.F. is given significant access including every second weekend, special holidays, and two non-consecutive weeks during the summer.
[12] As for the allegations that J.F. keeps guns and marijuana, there is no evidence to support the hearsay allegations of E.1 who is only five years of age.
[13] Ms. Katz also made reference to the affidavit of Laurinda Goddard of October 1, 2015 and specifically paragraph 41, which states that upon her visit to J.F.’s home, “the father denied any drug use”, and said “he did not use marijuana or cocaine in three to four years,” and also that he has never been denied access to either E.1 or E.2.
[14] Ms. Goddard also stated at paragraph 42 “the father reported appropriate forms of discipline for the children while in the home. I observed the home with no concerns noted, that E.1 has his own bedroom and E.2 sleeps with his father. The father mentioned getting bunk beds for the children.”
[15] Moreover, Ms. Katz also submitted that from her investigation of J.F.’s home, Ms. Goddard concluded that there was no evidence of any drug use or the existence of any guns.
[16] In brief reply, Ms. Walters indicated that the worker who had visited the home and observed the children and the father together noted that the children appear to be comfortable in his care.
Analysis and Conclusion
[17] In my consideration and review of the material and counsel’s submissions, amongst the orders which I have reviewed, I note particularly the order of Justice Sweeny of May 14, 2015, and I accept Ms. Katz’s submissions that J.F. received significant access pursuant to that order, which is quite recent, being in place for only five months.
[18] I also note that at Paragraph 45 of J.T.’s affidavit the allegation made by E.1 occurred on August 20, 2015.
[19] Yet, I further note that in the paragraph immediately preceding Paragraph 45 J.T. also stated: “the children’s additional time with J.F. this past summer and the children seemed to enjoy their time with him.”
[20] I can only assume that J.F. did, in fact, exercise his two non-consecutive summer weeks with the children, both in July and in August. Therefore, this sudden turnaround by E.1, which I can only assume was soon after summer access with J.F. is suspiciously inconsistent with the time he enjoyed with his father and contrary to the description of his father as being “not good and hurting him.”
[21] I am also satisfied that the society who addressed E.1’s allegations, conducted a thorough investigation of J.F.’s residence and found there to be no concerns for the children’s safety under J.F.’s care.
[22] Accordingly, I have no evidence to suggest the children would not be safe in J.F.’s care, and given that he is the biological father and has enjoyed extensive access with his two sons in the past, I will make a temporary order, without prejudice, regarding E.2 and E.1 and E.3 as follows:
The child E.3 is to be in the care of the maternal grandparents under CAS supervision, the terms of which are at Page 7 and 8 of the continuing record.
The children E.1 and E.2 are to be placed in the care of their father, J.F. under CAS supervision, again subject to the same terms of supervision as set out in Pages 7 and 8 of the record.
All three children are to remain at their current school. J.F. is responsible for E.2’s attendance.
Access between the siblings is to be arranged between the parties. If, in fact, the parties cannot work out terms that they deem suitable, I may be spoken to.
Mazza, J.
Date: October 8, 2015