Children's Aid Society of Algoma v. G.C., S.C., and C.P., 2016 ONSC 1238

WARNING

The court hearing this matter directs that the following notice be attached to the file:

This is a case under Part III of the Child and Family Services Act and is subject to one or more of subsections 48(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:

45.—(7) Order excluding media representatives or prohibiting publication.— The court may make an order,

where the court is of the opinion that . . . publication of the report, . . ., would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.

(8) Prohibition: identifying child.— 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.

(9) Idem: order re adult.— The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

85.—(3) Idem.— A person who contravenes subsection 45(8) or 76(11) (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: CAS v. G.C., 2016 ONSC 1238

COURT FILE NO.: 3510/16

DATE: 20160219

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

CHILDREN’S AID SOCIETY OF ALGOMA

Appellant

– and –

G.C., S.C., and C.P.

Respondents

J. Mealey, for the Appellant

E. McCooeye, for G.C.

L. Tegosh for S.C.

D. Stone, for the child, K.C.

HEARD: February 4, 2016

REASONS ON MOTION

RASAIAH J.

OVERVIEW

[1] The Children’s Aid Society of Algoma (“the Society”) is seeking pursuant to a motion filed February 2, 2016, an interim interim order pursuant to section 69(4) of the Child and Family Services Act R.S.O. 1990, c. C.11 providing that:

The father, G.C., shall have reasonable interim access to the children O.C. and J.C., on reasonable notice, such access to be supervised by the Children’s Aid Society of Algoma, or person approved by the Society, to be arranged by the father with the Society, to be at a location approved of by the Society, and on the following terms and conditions: the father shall follow all reasonable recommendations of the Society during supervised access visits with the children O.C. and J.C..

[2] The father and mother oppose the relief requested.

BACKGROUND

[3] There are three children, K.C., O.C. and J.C.. K.C. is the father’s child with C.P.. O.C. and J.C. are the father’s children with S.C..

[4] The Honourable Justice R. Villeneuve (“Justice Villeneuve”), following a hearing of three motions pertaining to the father’s access to his children, which motions were heard November 4, 2015, released a written decision on January 20, 2016, wherein he ordered: that the father’s parents (“ paternal grandparents “) be permitted to supervise the father’s access to two of his three children, namely, O.C. and J.C., at times approved by the Society; that the father would not be permitted to be in the paternal grandparents’ home on an overnight basis; and that the father’s access was only to be supervised by the paternal grandparents, with one of them being present at all times during those times that the father was exercising access to J.C. and O.C.. He dismissed the Society’s motion to vary Justice Dunn’s order of March 12, 2014. He also dismissed the father’s motion that the father be permitted to co-parent the children O.C. and J.C. along with the mother S.C. and that the mother S.C. be permitted to supervise his access to the children O.C. and J.C..

[5] The Society filed an appeal of Justice Villeneuve’s order on February 8, 2016 citing the following grounds:

That the learned motion judge erred in his application of section 58 of the Child and Family Services act and his interpretation of the best interests of the children, O.C. and J.C., by making an order permitting the paternal grandparents to supervise the father’s access to the children, O.C. and J.C..
That the learned motion judge erred in regard to factual findings contained within his decision, in particular, incorrectly finding that the paternal grandparents have supervised the father’s access to the children when the paternal grandparents had never been approved to supervise the father’s access and have never supervised access to any of the children.
That the learned motion judge erred in rendering a decision which is internally inconsistent as the findings made by the learned motion judge as they relate to the mother S.C. relate equally to the paternal grandparents who have demonstrated an unwillingness to inform themselves, have not reviewed the evidence related to the allegations of sexual harm by four separate young persons, and have provided unwavering support to the father.
That the learned motion judge erred in making such order after stating at the hearing that there was no evidence that the paternal grandparents had complied with the order of Justice Dunn dated November 25, 2014; after stating that the learned motion judge was not prepared to make such an order; after stating that the learned motion judge did not require any submissions on this point from counsel; and after counsel, Eric McCooeye indicated that he recognized this and was not seeking to proceed with this part of the motion.
That the learned motion judge erred in not giving sufficient weight to the evidence presented by the Children’s Aid Society of Algoma at the hearing and in not giving sufficient weight to the requirements set out by Justice Dunn in her decision dated November 25, 2014 at paragraph 25, which requirements have not been met.
That the learned motion judge erred in giving insufficient weight to the Society evidence that the sibling, K.C. has expressed concerns of feeling unsafe and unprotected by the paternal grandparents, including alleging the paternal grandparents were aware of the sexual abuse by the father, that they failed to protect him from the father, that they were dismissive of his concerns and that he felt unsafe in their home during access when he believed the father was making contact in some manner with the paternal grandparents during his time with them. Having regard to the nature of the risk, the children, O.C. and J.C. are, if anything, more vulnerable in a setting of poorly controlled, inadequately assessed, or poorly motivated supervision, due to their young ages.
That the learned motion judge erred in not giving consideration to the pending date of hearing of the motion for assessment by Dr. Marshall of the capacity of the grandparents to supervise access which assessment is necessary to assist the Court to most correctly determine the issues herein in the best interests of the children.

Law Notes

[6] Section 69(4) of the Child and Family Services Act R.S.O. 1990, c. C.11 (“CFSA”) under the title of “temporary order” states: the Superior Court of Justice may, in the child’s best interests, make a temporary order for the child’s care and custody pending final disposition of the appeal…, and the court may, on any party’s motion before the final disposition of the appeal, vary or terminate the order or make a further order.

[7] The effect of the order sought is a stay of the Order regarding the father’s access to O.C. and J.C. being at the paternal grandparents home supervised by them.

[8] In The Children’s Aid Society of the Districts of Sudbury and Manitoulin v. B.(S.), 2006 14961 (ON SC), [2006] O.J. No. 1808 (S.C.J.), Gauthier J. at paragraph [14] sets out a three part test as follows:

(1) An assessment of the merits of the case to insure that there is a serious issue to be tried;

(2) An assessment of whether the applicant would suffer irreparable harm if the stay is refused; and,

(3) An assessment as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits.

[9] Gauthier, J. further sets out in the above case at paragraph [57] that the second and third components relate to risk of harm. These components and level of harm relate to the level of harm to the child if a stay is granted or if a stay is refused.

[10] Section 69(4) of the CSFA makes the paramount consideration in a motion for interim relief, the child’s best interests: Children’s Aid Society of the Districts of Sudbury and Manitoulin v. B.(S.), 2006 14961 (ON SC), [2006] O.J. No. 1808 (S.C.J.).

[11] Section 37(3) of the CSFA sets out the circumstances to be considered in making an order or a determination in the best interests of a child. Section 37(3) of the CFSA provides:

37(3) BEST INTERESTS OF CHILD – Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall take into consideration those of the following circumstances of the case that he or she considers relevant:

The child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.
The child’s physical, mental and emotional level of development.
The child’s cultural background.
The religious faith, if any, in which the child is being raised.
The importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family.
The child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community.
The importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity.
The merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent.
The child’s views and wishes, if they can be reasonably ascertained.
The effects on the child of delay in disposition of the case.
The risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent.
The degree of risk, if any, that justified the finding that the child is in need of protection.
Any other relevant circumstance.

ANALYSIS

A. MERITS OF THE APPEAL

Overview

[12] The Society has asserted 9 grounds of appeal, as set out above.

[13] The onus of demonstrating there are serious issues is not a heavy one. The appellant must simply demonstrate that the appeal is not frivolous and there is arguable merit in one or more grounds of appeal that raise a serious issue on the appeal: The Children’s Aid Society of the County of Bruce v. D.J. et al 2011 ONSC 5493.

[14] No transcript was filed. The reasons of Justice Villeneuve were filed. The affidavit of L.S. sworn February 2, 2016 including exhibits was filed.

Considering the Paternal Grandparents As An Option

[15] It is clear in paragraph [5] of Justice Villeneuve’s reasons that the motions pertained to the father’s access to his three children, the need for supervision and determining suitable supervised access to the children.

[16] Paragraph [6] of Justice Villeneuve’s reasons suggests that he understood that the father and mother S.C. were proposing that the children J.C. and O.C. be placed with both of them or in the alternative with S.C. and that S.C.1 act as supervisor of the father’s access. The reasons also suggest that Justice Villeneuve believed that as further alternative relief, the father was proposing that his parents, the paternal grandparents act as supervisors of his access to the children J.C., O.C. and K.C..

[17] In paragraph [21] of his reasons, Justice Villeneuve again expresses an understanding that the father was seeking to have his access supervised by the paternal grandparents.

[18] Accordingly it does seem clear from the wording of the reasons that Justice Villeneuve was of the understanding that the paternal grandparents were being tendered as an option as supervisors on the motion.

[19] The Society relies on paragraph 28 of the Affidavit of L.S., sworn February 2, 2016, wherein she stated:

…I was present at the hearing on that date [November 4, 2015]. Counsel for the father advised the court that of the motion claims, the only issue for hearing in regard to the children, O.C. and J.C. was in regard to supervision by S.C.. I observed Justice Villeneuve state that in regard to supervision of access by the paternal grandparents, the paternal grandparents had not met the requirements of Justice Dunn (in her decision of November 25, 2014), Justice Dunn was clear on what needed to occur, and that he did not see in their affidavit that this has occurred. The father’s counsel, Eric McCooeye, indicated that he was not seeking to proceed with that and acknowledged he would not be successful in having the paternal grandparents approved as access supervisors for the father. No submissions were made by any of the counsel present regarding the paternal grandparents’ suitability as access supervisors.

[20] Counsel for the father and mother said that unfortunately given the passage of time, and lack of notes on this issue, they were not able to confirm the above without a transcript.

[21] Whether or not Justice Villeneuve could have, notwithstanding all of the above, considered the paternal grandparents anyway as an option, does not detract, in my view, from this issue being an issue for appeal under the analysis of the merits of the appeal. This argument also ignores the other grounds of appeal dealt with below and ignores the allegation that Justice Villeneuve stated, that only the request that S.C. supervise would be considered.

[22] I do not accept that the Society is simply after a “do over” with this motion or that it is fair to suggest that, when it appears that they were not afforded the opportunity to make any, and/or full and complete submissions regarding the paternal grandparents at the hearing based on the understanding that it was not an issue and would not be considered.

[23] It is my view on the basis of the above, that this ground raises issue for appeal if Justice Villeneuve in fact considered this further alternative argument that the paternal grandparents supervise the father’s access to the children O.C. and J.C., if the facts that Ms. Spina deposes to, are true, given those facts, and the history of this case.

Factual Errors Regarding the Paternal Grandparents

[24] In paragraph [8] of his decision Justice Villeneuve states the father’s access to the child K.C. was until the summer of 2015, being supervised by the paternal grandparents in their home and subsequent to that, at the supervised access centre. In paragraph [16] of his reasons, Justice Villeneuve states that access to the three children was being supervised by the paternal grandparents. He does the same in paragraph [26], only this time he uses words that make it clear that he was under the impression that the paternal grandparents were in fact supervising. In paragraph [33] he also refers to supervision of the children by the paternal grandparents. In paragraph [30] he seems to be under the impression that access to O.C. and J.C. was already being supervised in the paternal grandparents’ home despite the father’s affidavit of October 28, 2015.

[25] It is clear from the evidence, including the father’s evidence, that it is factually incorrect that the paternal grandparents ever supervised access. This was not disputed by the mother and father, and it was suggested that this was a typographical error on the part of Justice Villeneuve. I do not share the view that these entries were mere typographical errors on the part of Justice Villeneuve, given that Justice Villeneuve referred to this supervision as being fact in five paragraphs of his reasons.

[26] Further, this factual error in my view is not an immaterial issue in the analysis of an appropriate supervisor and accordingly the analysis of the paternal grandparents.

[27] Accordingly, it is my view that this ground of factual error raises issue for appeal.

Internally Inconsistent Findings

[28] In the context of dealing with the child K.C., in paragraph [36] of his reasons Justice Villeneuve states “while I do not doubt the sincerity of the paternal grandparents, I am troubled by the fact that they have not reviewed any of the evidence that the Society has been referring to for several months now, supporting their concerns about the father. They have chosen to support their son which is perhaps a natural thing to do. However, they have chosen to do so in an uninformed way”.

[29] In paragraph [34] of his reasons, again in the context of addressing K.C., Justice Villeneuve refers to the fact that as of the arguments of these motions, neither S.C. nor the paternal grandparents had viewed DVD recordings regarding the abuse or Dr. Dickey’s report and its findings.

[30] In paragraph [39] Justice Villeneuve turns specifically to the remaining motion regarding O.C. and J.C.. From paragraphs [40] through to [45] he speaks about the mother S.C. and the fact that by her own admission she has not reviewed any of the DVD evidence surrounding the allegations made by extended family members about the father, nor has she reviewed Dr. Dickey’s report; she has been unwavering in her support of the father and does not believe that the allegations made about him; and she refuses to date to at least look at the evidence that exists and thereafter form her opinion of the risk, if any that the father would pose to their children.

[31] Again in paragraph [48] of his reasons Justice Villeneuve speaks of the mother S.C.’s unwillingness to inform herself of the allegations made thus far and her unwavering support of the father and how it gives him some concern as to her suitability as a supervisor of access or as a co-parent with the father in the home on a full-time basis.

[32] The concerns expressed regarding S.C. are arguably similar and some of them, the same concerns that Justice Villeneuve expressed regarding the paternal grandparents in the context of K.C. yet I do not see in his reasons an explanation or reasons as to why the grandparents should be viewed differently in the context of O.C. and J.C. and/or differently from S.C..

[33] The above concerns “troubled” Justice Villeneuve with respect to K.C. in terms of the paternal grandparents, but in his decision he does not explain why this does not trouble him with respect to O.C. and J.C..

[34] Accordingly it is my view that this ground raises issue for appeal.

Justice Dunn’s November 25, 2014 Order

[35] In her decision of November 25, 2014, Justice Dunn dismissed Mr. G.C.’s motion to have the paternal grandparents supervise access on a without prejudice basis. She wrote at paragraph [25] of her decision “that motion could be considered in the future if there was evidence that the grandparents were firstly willing to supervise, the details of their knowledge of the allegations against their son, the details of their knowledge of the assessment and Phallometric testing and the results, details of their ability to supervise, and details of their knowledge of the concerns raised in the protection application. Only then could the court be in a position to determine their suitability”.

[36] I view this as a ruling made by Justice Dunn and not a mere suggestion; and further, that by this ruling she determined that this information would be relevant in this case and in particular, in assessing the suitability of the paternal grandparents as supervisors.

[37] While the grandparents filed an affidavit August 25, 2015, which Justice Villeneuve referred to, this affidavit does not address all of the evidence Justice Dunn referred to in her ruling that the court would require.

[38] The Society affidavit material that was before Justice Villeneuve, and Justice Dunn’s said Order do suggest that the paternal grandparents have not informed themselves, have not reviewed the evidence related to the allegations of sexual harm by the four separate young persons, and Dr. Dixie’s report; and that this was an important issue (as it was with S.C.).

[39] The lack of compliance with Justice Dunn’s order and/or the absence of the evidence required by this order are not addressed by Justice Villeneuve.

[40] Accordingly it is my view that this ground raises issue for appeal.

Conclusion on Merits of the Appeal

[41] I do not propose to go through all of the rest of the grounds of appeal and this is not to be taken to mean that the other grounds of appeal have no merit. In respect of the grounds of appeal I have addressed, the Society in my view has met their onus namely, the appeal is not frivolous, nor does it have little or no merit. By this analysis, I acknowledge that I do not have the transcript of the hearing, and accordingly, I do not determine whether these grounds (or any grounds) will or will not succeed on the appeal, only that these are serious issues to be tried on the appeal on the evidence I have before me.

B. IRREPARABLE HARM; BALANCE; AND BEST INTEREST OF THE CHILDREN

[42] In paragraph [11] of his reasons Justice Villeneuve speaks to the background of the father and takes note of fact that there have been allegations of sexual impropriety on the part of the father involving young extended family members and the child K.C..

[43] The risk of sexual harm in this case relates to allegations commencing in 2008 through to 2013 (five years) in respect of four different young persons of varying ages. They are summarized at paragraph 5 of the affidavit of L.S., sworn February 2, 2016.

[44] One allegation comes from the mother of K.C., C.P., who stated that she found the father masturbating and watching pornography with the child K.C. in the room, when K.C. was six months of age.

[45] K.C. himself makes allegations of being touched by his father started when he was age three. While there have been some earlier inconsistencies and retractions with his reports, it is alleged by the Society that K.C. has not retracted and has been consistent with his reports since then.

[46] K.C. also alleges that some of the abuse occurred in the paternal grandparents’ home, when the paternal grandparents were there in the home. It is also alleged that they are dismissive of his allegations and he did not feel protected in the paternal grandparents’ home.

[47] K.C. has been in counselling, demonstrating sexualized behaviour, having nightmares, having trouble sleeping, wetting the bed and has demonstrating other fears, for example of showering. He is still in counselling. He is now 8.

[48] O.C. will be three years old in April of this year, and J.C. will soon be one. They are young and of vulnerable ages.

[49] In paragraph [12] of his reasons Justice Villeneuve notes that the father underwent phallometric testing with Dr. Dickey in the summer of 2014. He acknowledged that the testing concluded that the father suffered from a condition known as pedohebephilia involving deviant sexual preference involving children or immature persons.

[50] Dr. Dickey’s recommendation is that the father should not have any unsupervised access with children. He further recommends that in this case, the parameters of the supervision should be within the purview of agencies such as the Children’s Aid Society, who have expertise in the evaluation and supervision of families.

[51] In paragraph [47] of the decision Justice Villeneuve notes that for the time being the risk does exist that the father could exhibit similar behaviours towards the children O.C. and J.C.. Justice Dunn has also made a previous finding of risk that meets the legislation. While it is true that Justice Dunn commented on weaknesses regarding the allegations made against the father standing alone, ultimately, she found, that considering all allegations together, along with Dr. Dickey’s report, there are reasonable grounds to believe there is a risk.

[52] I agree that there is risk of harm and that risk exists that the father could exhibit similar behaviours towards the children O.C. and J.C..

[53] In paragraph [34] of his reasons Justice Villeneuve refers to the fact that as of the arguments of the motions, neither S.C. nor the paternal grandparents had viewed DVD recordings regarding the abuse or Dr. Dickey’s report and its findings. Again, in paragraph [36] of his reasons Justice Villeneuve states “while I do not doubt the sincerity of the paternal grandparents, I am troubled by the fact that they have not reviewed any of the evidence that the Society has been referring to for several months now, supporting their concerns about the father. They have chosen to support their son which is perhaps a natural thing to do. However, they have chosen to do so in an uninformed way.” This is troubling in my view as well.

[54] While the paternal grandparents have filed evidence, indicating that they fully appreciate their responsibility as access supervisors, the affidavit material does not address all of the areas enumerated by Justice Dunn’s November 25, 2014 order.

[55] Although S.C. in her affidavit found at page 587 of the motion record, paragraph 25, speaks to her belief that the paternal grandparents went to the Police, Sexual Assault Crisis Center, and the Society, to educate themselves, it was only, as she described it, in relation to how to address K.C. and to be sensitive to his feelings and what she describes as perceived abuse, which the paternal grandparents do not believe occurred. This affidavit does not speak to when this occurred, what this involved, what education they actually received, if any; and again, this affidavit does not address Justice Dunn’s November 25, 2014 order.

[56] As the other justices have, in stating the above, I acknowledge that the father denies all allegations; and the testing and conclusions of Dr. Dickey. I acknowledge that these issues have yet to be tested/ tried in the protection application, and while paragraph [20] of Justice Villeneuve’s reasons states that there is no evidence to suggest that anything untoward was observed during the father’s visits with the children O.C. and J.C., counsel agreed that these visits that he was referring to were supervised visits by the Society. There has been no supervision by the paternal grandparents. It is clear that Justice Villeneuve thought the paternal grandparents had supervised, for some time.

[57] Further, the paternal grandparents appear at this date, to remain uninformed as to all of the particulars, allegations and the report involving their son. The Society alleges that their unwavering support for or belief in their son could possibly lead to poorly motivated supervision, and further that the paternal grandparents are not cooperative with the Society. The paternal grandparents unwavering support or what is being viewed as “uncooperative” may be natural and/or justified, but remaining uncooperative with reasonable requests to review information, and remaining uninformed and seemingly lacking interest in or avoiding or refusing to be informed (whatever the case may be) when proposing to be tasked to supervise their son, considering the allegations in this case, is not in the best interests of the children, in my view, and is concerning. There is no explanation from the paternal grandparents on this. The Society has been raising this issue for some time.

[58] Other than K.C.’s allegation that the paternal grandparents were aware of his abuse while he was in their home, which the paternal grandparents deny, there was one incident some time ago I was made aware of by the Society, namely of the father attending the paternal grandparents’ home in the driveway when he was not supposed to be on the property (the material states he was driving Ms. S.C. who was dropping off milk to the grandparents and remained in the vehicle). This was not reported by the paternal grandparents. It was reported by the mother’s former counsel.

[59] I acknowledge that other than the allegations set out above, the children O.C. and J.C. have been residing with the mother at the paternal grandparents’ residence and there have been no significant issues that have arisen pertaining to and/or involving the paternal grandparents, and O.C. and J.C., at their home. This is positive however I repeat that further evidence and analysis of the paternal grandparents as able suitable supervisors in this case is needed in my view. The children due to their ages would be more vulnerable in a setting of an uncooperative, uninformed supervisor, incorrectly and/or inadequately assessed. The degree of harm could be significant and irreparable otherwise.

[60] The Society submitted that the risk level and complexity of this case warrants an assessment by a qualified assessor with experience in the area of sexual harm. They have brought a motion in that regard, which motion I understand will be heard soon. I will leave it to the hearing court to determine whether or not the paternal grandparents need to or should undergo such an assessment. That is not before me.

[61] I find that the balance in this case, within the purview of the best interests of the children, due to the risk of harm to the children, and the further assessment of the paternal grandparents needed, favours making of the order. It is not in O.C. and J.C.’s best interests at this time to have the father’s access to them supervised by the paternal grandparents having regard to s.s. 37(3) 11, 12 and 13 of the CFSA.

[62] I also acknowledge that while it may not be ideal, the children with the below order will continue to have the opportunity to see the father to develop and maintain a relationship with him in the supervised setting that they are familiar with. I recognize the arguments made about supervised access settings and the desire for children to spend time with their parents in a more normalized setting. I find that at this time, these arguments are outweighed by all of the above.

[63] This decision is not to be taken to mean that the door is closed or should be closed on the paternal grandparents becoming supervisors in the future as Justice Dunn indicated, with further detailed evidence on their suitability and ability to supervise, addressing all of the concerns of the Court and the concerns set out in the protection application.

ORDER

On an interim, interim basis, without prejudice basis, the father, G.C., shall have reasonable interim access to the children O.C. and J.C., on reasonable notice, such access to be supervised by the Children’s Aid Society of Algoma, or person approved by the Society, to be arranged by the father with the Society, to be at a location approved of by the Society, and on the following term and condition: the father shall follow all reasonable recommendations of the Society during supervised access visits with the children O.C. and J.C..
With respect to the balance of the motion, if no further date is set in respect of the motion within 15 days of release of this Order, the balance of the motion will be deemed withdrawn.

A. Rasaiah

Released: 20160219