Court File and Parties

COURT FILE NO.: FC-10-397-2, FC-10-397-3, FC-10-397-4 DATE: 2017/01/10 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 S.F., born […], 2005; L.F., born […], 2010; and L.F-D., born […], 2014

BETWEEN:

THE CHILDREN’S AID SOCIETY OF OTTAWA Applicant – and – J.F. J.P. W.D. T.P. Respondents

BEFORE: Shelston J.

COUNSEL: Karine Jackson, Counsel for the Applicant Kimberley Pegg, agent for Kristen Robbins, Counsel for the Respondent, J.F. David Page, Counsel for the Respondent, J.P. Marie-Helen Godbout, Counsel for W.D. T.P. Self-represented Ahmed Youssuf, Office of the Children’s Lawyer, Counsel for S.F.

HEARD: January 5, 2017

Endorsement

[1] On August 19, 2016, I ordered the return of the three children in this litigation to their mother subject to the supervision of The Children’s Aid Society (“the Society”) with a very specific condition as set out in Children’s Aid Society of Ottawa v. J.F., 2016 ONSC 5154. On October 30, 2016, the children were apprehended without a warrant from the mother’s care and placed with their respective fathers. On November 4, 2016, on a temporary and without prejudice basis, Justice Kane ordered the children placed in the care of the fathers subject to the supervision of the Society and granted access to the mother.

[2] Today, the Society seeks an order that the three children be placed in the temporary care and custody of their fathers, subject to the supervision of the Society, pending disposition of the application with the conditions set out in the respective notices of motion.

[3] The mother seeks the return of the children to her care.

[4] The fathers support the Society’s position and seek to retain the children in their care subject to supervision order to the Society.

[5] Counsel for the oldest child, S.F. indicates the child wishes to return home to be with her mother and her sisters.

The Parties

[6] J.F is the mother of three children, namely, S.F., born […], 2005; L.F., born […], 2010; and L.F-D., born […], 2014.

[7] Each child has a separate biological father. S.F.’s father is T.P., L.F.’s father is J.P. and L.F-D.’s father is W.D.

Previous order August 19, 2016

[8] On August 12, 2016, I heard a care and custody hearing where the Society proposed that the children be returned to their mother under a supervision order. One father, W.D. consented to an order that his child L.F.-D. be returned to the mother subject to supervision order. The other two fathers opposed their children being returned to the mother’s care.

[9] At the motion, all parties agreed that there was a risk to the children in returning to their mother’s care. The children were initially apprehended on May 9, 2016 after the Society attended at the mother’s home while the mother was away on a cruise in Europe. Two of the children were present while one child was in the care of her father.

[10] I accepted the evidence of the child protection worker that upon entrance into the residence she found the following:

a. rotting food in the fridge; b. broken shelving inside the fridge; c. the floors covered in dog feces with a strong smell of urine; d. two dogs and two cats in the house; e. the litter box being full; f. the children’s mattresses covered with dog feces. There were no sheets on the beds. In one of the children’s bedroom, there was a steak knife on the floor of the closet as well as dog food all over the floor and more dog feces. g. in another bedroom, there was more dog feces and also a bag full of the grandmother’s prescription medication within reach of the children; and, h. the mother’s own bedroom was dirty and her mattress had brown stains all over it.

[11] On May 10, 2016, the children were apprehended and S.F. was placed in foster care, L.F., who had been staying with her father, remained with her father, and L.F-D. was placed with her father.

[12] I made the following findings:

a. This mother has on two previous occasions required the intervention of a child protection agency to address concerns of the cleanliness of her homes. There was a significant history of physical violence between the mother and her own mother. There was a history of dysfunctional behaviour by the mother. There are charges of assault, uttering death threats, and breaking and entering. b. There has been police involvement with this family. The mother could not follow a court order when, in April of 2009, she attended a concert with an individual with whom she had a no contact order. c. I rejected the mother’s evidence that when she left on May 7, 2016 for her cruise, the house was clean and the fridge was full of food. I found that, after reviewing the pictures of the inside of the house and the fridge, it was simply not credible that the cleanliness of the house and the inside of the fridge had so dramatically changed in two days. The state of the inside of the fridge, the bedding and the complete lack of food was shocking. The amount of dog feces and smell of animal urine was overwhelming. d. All parties agree that there existed a risk to the children if there are returned; e. The children were not attending school; and, f. That the mother was not a credible witness.

[13] By August 2016, the mother had taken courses, had cleaned the house, had acquired new mattresses and was working cooperatively with the Society. The children wanted to go home.

[14] I decided that the conditions sought by the Society as well as the significant access to be afforded the fathers was sufficient, at this stage of the litigation, to mitigate the risk to these children. However, I directed the Society that any breach of any condition by the mother should be acted upon immediately.

[15] On August 19, 2016, I ordered the return of all three children to the mother on a temporary basis subject to the supervision of the Society with the conditions subject to specified access by the fathers. I amended one of the proposed conditions dealing with pets. I ordered:

“The mother shall not permit any pets to live in her home with any child. The mother shall remove the existing pets before the return of any child. Said removal to be confirmed in person by the Society”.

[16] The children were returned to the mother’s care. Until October 30, 2016, the mother appears to have complied with all terms of my order. The children had seen their doctor, the girls were in school or daycare and the fathers were exercising access. While there appears to have been difficulties with access and minor issues with respect to the mother cooperation with the Society, the evidence did not reach a level which required the Society to act. However, things changed in October 30, 2016.

Apprehension October 30, 2016

[17] On October 30, 2016, the Society received a call from the father W.D. that he had received a text from the mother asking him to bring food and that the children would starve if he did not bring food. She also advised him that she had lost her driver’s license due to unpaid fines and wanted him to change the drop off location for his child. W. D. called and asked the Society to investigate.

[18] That same day in the afternoon, between 3:30 and 4 pm, Mr. Silva-Stone, an after-hours worker with the Society, attended unannounced at the mother’s home. The worker knocked on the front door. No one answered. Approximately 15 minutes later, the mother returned by car with her child, L.F. The mother let the worker into the home where he discovered that the oldest child S. F. had been left unsupervised.

[19] He advised the mother that the Society had received a call from one of the fathers indicating that the mother had texted this father that she had no money or food and that her license has been suspended for the non-payment of fines. The mother showed the worker the inside of her fridge to show that it was full of food. She said she had money saved but did not tell that father because she wanted to get money from him.

[20] She then admitted that she had lied to the father to obtain more money. She also admitted that she lied to the father about her license being suspended so that he could drop his child off closer to her home.

[21] Once inside the house, the worker heard barking dogs from the upstairs floor of the home. The worker reviewed with the mother the condition in the temporary order that no pets were to live with her. The mother admitted that she had brought the two dogs home for the weekend because the children missed the dogs. She made no mention of a cat.

[22] The worker wanted to check out the upstairs rooms. He and the mother walked up the stairs. The mother stopped the worker at the top of the stairs from entering the bedrooms and she asked the girls to come out of their rooms. The worker spoke to the girls. They appeared to be fine. The mother remained at the top of the stairwell stopping the worker from continuing to see the bedrooms. The worker was not allowed access to the bedrooms.

[23] The worker came down the stairs and called his supervisor. While speaking to her, he opened the door to the basement and saw a cat. He closed the door. After speaking to supervisor, the worker told the mother that he needed to see the rest of the house including the basement. She refused. The worker advised the mother that he was apprehending the children because of the presence of the animals and her refusal to cooperate with him on having access to the entire house. The worker called the two fathers to pick-up their children.

[24] The mother asked him to leave and go outside. He refused to leave because he was concerned that the mother could lock him out. The mother agreed to go outside with the worker so she can have a smoke. When the fathers picked up their children, the worker asked to go in. The mother said no. The worker then left.

[25] Since October 30, 2016, the children remained in the care of the respective fathers.

Analysis

[26] At this stage of the litigation, the evidence is restricted to affidavit material. There has been no cross-examination of any of the deponents of the affidavits. The mother and the child protection worker who attended on October 30, 2016 provided very different versions as to what transpired. Their evidence is critical to the determination of what transpired on October 30, 2016.

[27] The mother alleges that the worker swore at her, was aggressive and unprofessional. She alleges that the worker had access to the bedrooms. The worker denies all the allegations.

[28] Even at this stage, I find that I can make a determination about the credibility of the witness. I have no evidence that the worker is not credible. However, I have evidence to conclude that the mother is not a credible witness. I do so for the following reasons:

a. In my endorsement dated August 19, 2016, I found that the mother was not a credible witness. I rejected her allegations that the level of filth that occurred inside that home and the fridge with those children present gave rise to the original apprehension was simply not possible to occur in between May 7 and May 9 as alleged by the mother; b. Further, I found that the mother’s credibility was eroded when she alleged that she intended for the children to start school in May 2016 but in a text message to L.F.’s father, she indicated the child would not start school until September 2016. Her evidence was contradicted by the text message; c. The mother admitted to the worker on October 30, 2016 that she lied to W.D. about not having enough money to feed the children and lied about her license being suspended. Further, J. P. stated that the mother made the same complaint about not having enough food to him. She lied to get money in one case and to change the access drop off in another case; d. The mother changed her story with respect to the child protection worker observing a cat at her home. In the mother’s affidavit dated December 22, 2016, at paragraph 28, she stated “Mr. Silva-Stone never saw a cat in my basement. He never went down there or even asked to gain entry to the basement. The basement has no windows.” The child protection worker filed a responding affidavit where he explained how he saw the cat. In the mother’s reply affidavit dated December 28, 2016, she stated “….I do not remember this however, it could be correct as I was not present and that he opened the basement door and saw a cat. The cat was old (18 years) and I had her for years. She had been staying at my mom’s and was not doing well…………..”In the space of six days, the mother changed her story about the cat from denying the worker saw a cat to maybe he saw a cat.

[29] I find that the mother has shown that she is prepared to lie to suit her purposes, I find that she is not a credible witness. Consequently, where the evidence of the child protection worker conflicts with the mother’s evidence, I have accepted the evidence of the child protection worker.

[30] Pursuant to section 51(6) of the Child and Family Services Act, R.S.O. 1990 (the “CFSA”), the Court may at any time vary or terminate an order made under subsection (2).

[31] Counsel for the mother concedes that the mother breached the court order by having the dogs and cat in her home and that such breaches are a change in circumstances and that the test for section 51(6) of the CFSA has been met. However, counsel for the mother argues that the apprehension of the children on October 30, 2016 without a warrant was not justified. She relies on Children’s Aid Society of Algoma v. S.P., 2012 ONCJ 355, 2012 O.J. No. 2648, there are two prerequisites required for there to be a valid warrantless apprehension of a child. Firstly, the child protection worker must have reasonable and probable grounds to believe that the child being apprehended is in need of protection. Secondly, that based on reasonable and probable grounds, the apprehending worker believes there is a substantial risk to the child’s health or safety during the time necessary to bring the matter on for hearing or to obtain a warrant to apprehend from a justice of the peace. She argues that the breach of the condition regarding pets being present did not pose a “substantial risk to the children’s health or safety” and that the apprehension without a warrant was not justified.

[32] In this case, the children were apprehended based on the Society’s position that the children were at risk of harm in the mother’s care. The children were removed from her care because she breached the condition of the order of not having pets and for not being cooperative during the visit.

[33] I find that the breach of the order by the mother with respect to having pets in her home was not sufficient reasons to apprehend the children without a warrant. However, I find that the mother’s decision not to allow the worker to have access to the upstairs bedrooms and the basement was sufficient to meet the test that the worker had reasonable and probable grounds to conclude that there was a substantial risk to the children’s health or safety.

[34] I make that finding in the context of the original apprehension in May 2016, when the police and the workers attended at the home and found the home to be in a deplorable state with dog feces on the bedding and mattresses where the children slept amongst other issues. By not allowing the worker access to the bedrooms and the basement, the mother did not cooperate with the Society. Furthermore, she did not allow the worker to have access to ascertain the state of the bedrooms or the basement. Considering what happened in May 2016, I find the worker had reasonable for all grounds to believe that there was a substantial risk to the children’s health or safety. The worker never saw the dogs. He never saw the state of the children’s bedrooms. He never saw the basement. All the mother had to do was to allow him access and this risk would have been addressed. She did not and I find that it was reasonable for the worker to apprehend the children at that time.

[35] In my endorsement of August 19, 2016, I indicated that the mother was to comply with all terms of the supervision order and if there were a breach of any of the terms, the Society was to act. In August 2016, the Society stated that the children were at risk if returned to the mother. They submitted that with strict compliance to the conditions set out in the order, the children could be protected. Furthermore, they intended to exercise a zero tolerance policy. I agreed with that position and made it part of my endorsement.

[36] Despite very clear language in my decision, I find that the mother knowingly breached the order by allowing pets to be in the home and by not cooperating with the Society worker to allow them to investigate the state of the children’s bedrooms and basement in the home.

[37] I further find that the risk to the children was substantial at the date of the apprehension considering the events of May 2016.

[38] Counsel for the mother submits that there is a risk of emotional harm to the children if they are not reunited. She submits that the bond of the children is very strong and that there is risk of harm to the children if they are removed from that bond. She urges me to consider the disruption of the children not being with each other and their mother as a factor in to consider in making my decision.

[39] I find that the children have a very strong bond. I accept that the eldest child S. F. wants to return to live with her mother and her sisters. There is no evidence to support a finding that the children may suffer emotional harm if they are not reunited. I have balanced the desire to maintain the strong bond between the children and the risk if they are returned to live with their mother. I find that the risk to the children returning to their mother’s care outweighs the risk of the children potentially suffering emotional harm by not living together.

Disposition

[40] I order that the child, L.F-D, born […], 2014, be placed in temporary care and custody of her father, W. D. subject to the supervision of the Society with the terms and conditions set out in the respective notice of motion.

[41] I order that the child S. F., born […], 2005, be placed in the temporary care and custody of her father T. P., subject to the supervision of the Society with the terms and conditions set out in the respective notice of motion.

[42] I order that the child, L. F., born […], 2010, be placed in temporary care and custody of her father, J. P., subject to the supervision of the Society with the terms and conditions set out in the respective notice of motion.

[43] I order that the mother shall have access to the children, at the discretion of the Society, a minimum of two times per week for the duration of 1.5 hours per visit.

[44] I order the fathers to arrange regular access with the three children.

Mr. Justice Mark Shelston Released: January 10, 2017