COURT FILE NO.: FC-15-2814 DATE: 2016/05/25 ONTARIO SUPERIOR COURT OF JUSTICE

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 W. Jr. J.-L., N. J. H.-B., A. J., K. G., A. J.

B E T W E E N:

THE CHILDREN’S AID SOCIETY OF OTTAWA Applicant – and – B. J.-L. C. G. W. H. P. H.-B. F. D. Respondents

Counsel: Marie Josee Ranger agent for Alison Reed, for the Applicant Wendy Rogers Deanna Paolucci Rebecca Rosenstock Karen Leef Self For the Respondents

Heard: April 28, 2016

Endorsement

Shelston J.

Overview

[1] This motion concerns the temporary care and custody of the child, N.J.H.-B. (“N.”).

[2] B.J.L.(“the mother”) is the natural mother of the five children set out herein:

a) N.J.H.-B. (“N.”) born […], 2009, with the father being P.H.-B.(the “father”);

b) W. Jr. J.-L. (“W. Jr.”) born […], 2012, with the father being W.H.;

c) A.J. (“A.J.H.”) born […], 2013, with the father being W.H.;

d) A.J (“A.J.D.”), born […], 2014, with the father being F. D.;

e) K.G. (“K.”), born […], 2015, with the father being C.G.

[3] The mother, B.J.-L., resides with C.G.

[4] The mother has custody of N. and the father has access rights. By order of the Honourable Justice Labrosse, dated November 24, 2015, the mother was granted custody and the father was granted supervised access in the presence of his paternal grandmother and/or her partner due to concerns about drug use, alcohol consumption and his lack of supervising the child while in his care.

Apprehension

[5] On December 25, 2015, the Children’s Aid Society of Ottawa (the “Society”) received a referral from the maternal grandmother who believed that the grandchildren were being sexually abused by their mother, that C.G. was involved in shoplifting and dealing cocaine, and that he was trying to buy a gun.

[6] On December 28, 2015, A.J.D. was brought to the Children’s Hospital of Eastern Ontario via ambulance for an apparent seizure. She was seen by Dr. B. who noted bruising on her face, shoulders, shins and belly. The mother alleged that she was not certain where the bruising came from, claimed she had not seen it before, and alleged that the child W. Jr. had caused the marks.

[7] Based on the allegations received on December 28, 2015, coupled with an absence of clear explanations as to how the injuries were sustained, the Society apprehended the children W. Jr., A.J.H. and A.J.D. on December 28, 2015. K. was being cared for by the paternal grandparents at the time and remained in their custody on consent. N was visiting her father during the Christmas break and remained in his care.

[8] The Society’s original position was to seek a protection application for all four children except K. who was placed by his father in the care of his paternal grandparents.

[9] On December 31, 2015, the Honourable Justice Roger granted a temporary without prejudice order placing the children W. Jr., A.J.H. and A.J.D. in the interim care and custody of the Society. At the same time, the child N. was placed in the interim care and custody of her father subject to the supervision of the Society.

Return of all children except N. to mother under supervision order dated February 8, 2016

[10] The position of the Society was that the mother and C.G. were working cooperatively with the Society, taking positive steps to alter the sleeping arrangements of the children and installing video cameras in the children’s room along with one in the living room to better supervise the children. Furthermore, they have agreed to abstain from the use of marijuana while in a caregiving role.

[11] With respect to K., he resided with paternal grandparents until January 28, 2016, when he was returned to the care of his mother and C.G. based on their agreement to comply with the supervision order requested by the Society.

[12] With respect to N., when the apprehension occurred, the child was in the father’s care for a holiday visit. On December 30, 2015 the Society placed the child with her father.

[13] While in the father’s care, the child made disclosures about alleged sexual assaults on W. Jr., having a nightmare and yelling “mommy no, mommy no” and allegations that the mother smacks her, hits her and pulls her hair.

[14] On January 19, 2016, the worker for the Society met with the child at school, where the child made allegations that W. Jr. had hurt her, that her mother sometimes pulls her hair, smacks her and pinches her. She further disclosed that uncle D. touched her private parts. The child made no disclosures of sexual abuse by the mother or anyone else.

[15] On January 28, 2016, the worker for the Society advised the father that they planned on returning the child to the mother’s care. The father was upset, feeling that the plan was placing his daughter in an environment that was not good for her.

[16] On February 3, 2016, the Society amended the protection application seeking the return of all five children to the mother and C.G. subject to certain terms and conditions, and to the supervision of the Society for a period of six months.

[17] On February 8, 2016, the Society brought a motion seeking an order that N., W. Jr., A.J.H., A.J.D., and K. be placed in the temporary care and custody of their mother, B.J.-L., and her partner, C.G., subject to the supervision of the Society with the terms set out in the notice of motion.

[18] On February 8, 2016, the Honourable Justice Blishen ordered that all of the children be returned to the care and custody of the mother and her partner, except N., effective February 12, 2016, with specific modifications to the conditions as requested by the Society.

[19] By February 16, 2016, all four children, W. Jr., A.J.H., A.J.D., and K., were returned to the mother and C.G. With respect to the child N., the issue was adjourned to a care and custody hearing to be set by the trial co-ordinator. The date for the motion was set for April 28, 2016.

Current motion re: the child N.

[20] On April 26, 2016, counsel for the mother filed a motion returnable April 28, 2016 seeking the following relief:

a) An order abridging the time for service of the motion and supporting affidavit;

b) An order placing the child N. in the interim care and custody of the mother and C.G. subject to the supervision of the Children’s Aid Society of Ottawa; and

c) Such further and other relief as counsel may advise and this Honourable Court may deem just.

Situation of the children since their return to the mother’s care

[21] On February 16, 2016, a child protection worker returned W. Jr., A.J.H. and A.J.D. to the mother’s care. The worker observed that the home was safe, clean, and that cameras had been installed in the children’s room and in the main living area.

[22] The mother and the father agreed that she would have access to N. three weekends per month and one or two evenings per week.

[23] On February 18, 2016, a child protection worker completed a visit of the mother’s home and found the property to be tidy and observed no concerns with hazards or safety. The worker described the home as being a townhouse with three bedrooms, parents in one room with K., the girls, N., A.J.H., and A.J.D., in one room and W. Jr. in the third.

[24] On February 29, 2016, the mother and C.G. enrolled the children in the Society’s Headstart program. As of April 21, 2016, W. Jr., A.J.H. and A.J.D. were attending the program on a regular basis.

Position of the father

[25] The father opposes the return of the child N. to the care of the mother because of serious concerns for the child’s safety and well-being. He is requesting that the child remain in his interim care and custody and that the mother’s existing access schedule of three out of four weekends per month from Friday at 4 p.m. until Sunday at 6 p.m. continue.

[26] The father’s allegations can be set out as follows:

a) If the child is returned to the mother’s care, she will have five children under her supervision and is pregnant for a sixth child. Consequently, his child N. will not be able to receive the care and attention she requires. As well as having four children under three years of age, he argues that A.J.D. and W. Jr. have special needs; and

b) The mother had a grow-op in her basement that has been removed.

[27] In support of his assertion that the mother will be unable to properly supervise the children, he relies on the incident in December 2015 where A.J.D. was hospitalized for significant injuries and the mother was unable to indicate how they were sustained.

[28] Further, the mother has admitted to witnessing a few incidents where W. Jr. was jumping on A.J.D.’s chest and head. The father states that in mid-February 2016, there was another incident where W. Jr. physically injured A.J.D., causing her to subsequently have two seizures.

[29] The father relies on the disclosure made by the child during the police interview of January 12, 2016, and in the interview with the child protection worker on January 19, 2016.

[30] The father’s second concern deals with the mother’s lack of candour and honesty with the Society with regards to the grow-op found in the home in December 2015, when the Society attended with the police on the date of the apprehension. The worker confirmed that a marijuana grow-op had been set up in the basement. C.G. admitted to the grow-op but indicated it was for the personal use of the mother and C.G.

[31] The father’s alleges that the mother would prefer having the child in care rather than having her with him. The father submits that this raises concerns about the mother’s ability to prioritize what is best for the child.

[32] The father’s affidavit also presents a plan of care for the child to attend school and during the summer, he proposes that the mother and the father share the child on a week on, week off basis with some flexibility for holiday and other plans.

Current position of the Society

[33] Despite the Society bringing the motion to have all five children return to the mother’s care on February 2016, along with the motion on April 28, 2016, the Society takes no position as to whether the child N. should live with the father or the mother. The Society’s position is that N. is attached to both parents and all of her siblings.

[34] The child was interviewed on March 17, 2016, March 27, 2016 and April 18, 2016 by Society workers who confirmed that at each interview the child expressed missing her mother while not expressing any concern about either parent.

[35] The Society has concerns with both parents. With respect to the mother, the Society’s concern centres on her ability to supervise W. Jr. around the other children and potential frustration by the mother that could result in emotional outbursts.

[36] With respect to the father, the Society is concerned about his frustration with the current situation of communication with the mother and with N.’s exposure to other adults in the home.

Position of the mother

[37] The mother’s position is that the child should return to her care, as she has had the four other children returned to her care with the consent and support of the Society under her supervision order.

[38] Further, she argues that she had legal custody of N. before the apprehension and that pursuant to section 51(3) of the Child and Family Services Act, R.S.O. 1990, c. C.11 (“CFSA”), the Court shall not make an order placing the child in the care and custody of a person other than the person who was in charge of the child immediately prior to the intervention unless a Court is satisfied that there are reasonable grounds to believe that there is a risk the child is likely to suffer harm and that the child cannot be protected adequately by an order under section 51(2)(a) or (b).

[39] The mother’s position is that there are no reasonable grounds to believe that N. is likely to suffer harm if she is returned to her mother.

[40] Further, she argues that the Society amended its application to seek the return of all five children to her care subject to a supervision order. The Society sought an order returning N. to the mother’s care on February 8, 2016. She has received the support of the Society.

[41] She filed her motion late because she was concerned that the Society was going to take no position at the motion on April 28, 2016. Her concern was justified.

Analysis

[42] The motion before me is a temporary care and custody hearing to determine the child’s residence until the matter can proceed to trial. Section 51(3) of the CFSA states:

51(3) The court shall not make an order under clause (2) (c) or (d) unless the court is satisfied that there are reasonable grounds to believe that there is a risk that the child is likely to suffer harm and that the child cannot be protected adequately by an order under clause (2) (a) or (b). 1999, c. 2, s. 13.

[43] The Honourable Justice Blishen in Children’s Aid Society of Ottawa Carleton v. T., 2000 ONSC 21157, held that there must be reasonable grounds to believe that there is a real possibility that if the child is returned to the parents, it is more probable than not that the child will suffer harm. The Society must decide if the child cannot be actually protected by terms and conditions of an interim supervision order to the parents.

[44] Section 51(2) gives the Court four options when making a temporary order for the care and custody of a child.

[45] Prior to the involvement of the Society in December 2015, the mother had custody of the child. In those circumstances, the Court may order the return of the child to the care and custody of the person in charge of the child immediately before the Society intervened or return the child to the person who had charge of the child before the intervention subject to supervision order.

[46] However, if the Court is satisfied that there are reasonable grounds to believe there is a risk that the child is likely to suffer harm and that the child cannot be protected adequately by returning the child to the mother with or without a supervision order, then the child may be placed in the care and custody of someone other than the person who had charge of the child before the intervention of the Society or place the child in the care of the Society.

[47] In this case, the first step is to determine if there are reasonable grounds to believe that there is a risk that the child will suffer harm and that the child cannot be adequately protected by being returning to the mother with a supervision order as requested by the mother.

[48] I note that the Society is aware of the allegations made by the father. Despite taking no position on the motion, in spite of the allegations made by the father, the Society is not opposing, if I so decide, the return of the child to the mother.

[49] In this case, the order of the Honourable Justice Labrosse dated November 24, 2015, granted to the mother, sole custody of the child N. The father was granted supervised access in the presence of the paternal grandmother, E.H., or her partner, D.J., on alternate weekends from Saturday at 4 p.m. to Sunday at 8 p.m., one weekday visit each week, on a day and a time to be arranged by the mother and the paternal grandmother, and one overnight access to occur at the home of the paternal grandmother or of such other person as approved by the mother.

[50] Upon a review of the totality of the evidence, I find that the mother has taken reasonable steps to provide adequate protection for all of her children. She has enrolled her children in the Headstart program offered by the Society, has agreed not to use marijuana while in a child care role, has installed video cameras, has segregated W. Jr. in his own bedroom and is working cooperatively with the Society.

[51] The father’s concern about the lack of supervision and the lack of candour exhibited by the mother towards the Society does not, in my view, provide reasonable grounds to believe that there is a risk to this child that she will likely suffer harm and cannot be protected by returning the child with a supervision order if she is returned to her mother.

[52] I note that the Society has returned the mother’s four other children under a supervision order.

Disposition

[53] I order as follows:

a) The child N.J.H.-B. is placed in the temporary care and custody of B.J.-L. and C.G. subject to the supervision of the Society with the following conditions:

i) The mother and C.G. shall provide the child with structure and a routine;

ii) The mother and C.G. shall ensure that the child is never left unsupervised;

iii) The mother and C.G. shall ensure that the child is only left in the care of an adult who has been preapproved by the Society;

iv) The mother and C.G. shall ensure that the child attends the Society’s Headstart program;

v) The mother and C.G. shall attend and successfully complete a parenting program approved by the Society and follow recommendations made;

vi) The mother and C.G. shall respect Mr. P.H.-B.’s access to the child;

vii) The mother and C.G. shall refrain from using marijuana or any other illegal or non-prescribed drugs and refrain from allowing anyone into their home who is using, or under the influence of, either alcohol or illicit drugs;

viii) The mother and C. G. shall submit to drug screens if and when required by the Society;

ix) Mr. P.H.-B. shall have access to the child every second weekend from Saturday at 4 p.m. to Sunday at 8 p.m., once during the week as arranged between the parents, and should Mr. P.H.-B. miss two consecutive visits, access shall be at the mother’s discretion; and

x) Mr. P.H.-B. shall not be under the influence of any substance during access with his child.

Shelston J. Released: May 25, 2016