Court File and Parties
COURT FILE NO.: C150/17-1 DATE: May 30, 2017 SUPERIOR COURT OF JUSTICE – ONTARIO FAMILY COURT
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT
RE: CHILDREN’S AID SOCIETY OF LONDON AND MIDDLESEX, applicant AND: T.L.J. and R.P.S., respondents
BEFORE: MITROW J.
COUNSEL: Benjamin Leschied for the Society Toenie Hersch for T.L.J. Alla Kikinova for R.P.S.
HEARD: May 26, 2017
Endorsement
Introduction
[1] This is a temporary care and custody motion brought by the father to place both children in the father’s care subject to Society supervision.
[2] There is also a motion brought by the mother for expanded interim access. That relief is not opposed by the Society.
[3] Both the Society, and the mother, oppose the father’s motion.
[4] For reasons that follow, the children shall remain in the temporary care and custody of the Society but subject to the father’s right to bring a further motion for temporary care and custody; however, the father shall have immediate expanded interim access to the children, including overnight.
The Facts and Discussion
[5] The respondents are the biological parents of B., age 9, and I., age 7.
[6] The respondents are separated. They were engaged in litigation pertaining to custody/access issues that culminated in a final order dated February 8, 2016. Sole custody of the children was awarded to the father. The mother was awarded access, including alternate weekends.
[7] On February 1, 2017, the Society issued the current protection application; at the same time, the Society brought a motion seeking an interim without prejudice order placing the children with the father subject to Society supervision and a number of terms and conditions.
[8] The protection concerns included the father’s drug use, lack of supervision of the children and the condition of the home that included the presence of cockroaches. Both children had problematic school records regarding absences and times late. In November 2016, a Society worker observed drug paraphernalia on the father’s bed. Also, the father was unwilling to sign a voluntary services agreement or consents for the Society to obtain information.
[9] The Society was of the view that the children could be protected adequately by a supervision order; however, Templeton J. rejected this position and on February 9, 2017, Templeton J. ordered both children into care.
[10] The father submits that much of the evidence before Templeton J. was comprised of information from anonymous sources that was never verified. The father points to the court’s concerns at that time as to one of the children taking melatonin to sleep; however, the father now attaches to his affidavit a letter from a pediatrician recommending use of melatonin for the child, if needed, to help her sleep.
[11] It is trite to note that the order placing the children into care is regarded as a “without prejudice” order as no material had been filed by the respondents.
[12] The father deposes that he suffers from anxiety, making it hard for him to make “decisions on the spot” and that is why he did not sign a voluntary services agreement. He further deposes he has been approved for a licence for medical marijuana, and that he does use marijuana to help him deal with “pain due to nerve damage.”
[13] The father deposes that he has, and is, doing his best to follow through with the requirements set out in writing by the Society. He points to regular attendance at access, attending the “Parenting School Age Children” course, completing the intake at Addiction Services Thames Valley (“ASTV”) and attending counselling there on a regular basis, and attending at all required meetings with the Society worker.
[14] The father submits that the children should be returned to his care under an interim supervision order as this would protect the children adequately.
[15] The Society agrees that the father has made positive progress, but not sufficient progress at this time to return the children to his care.
[16] The relevant provisions in s. 51 of the Child and Family Services Act, R.S.O. 1990, c. C.11 governing temporary care and custody orders are reproduced below:
Custody during adjournment
(2) Where a hearing is adjourned, the court shall make a temporary order for care and custody providing that the child,
(a) remain in or be returned to the care and custody of the person who had charge of the child immediately before intervention under this Part;
(b) remain in or be returned to the care and custody of the person referred to in clause (a), subject to the society’s supervision and on such reasonable terms and conditions as the court considers appropriate;
(c) be placed in the care and custody of a person other than the person referred to in clause (a), with the consent of that other person, subject to the society’s supervision and on such reasonable terms and conditions as the court considers appropriate; or
(d) remain or be placed in the care and custody of the society, but not be placed in,
(i) a place of secure custody as defined in Part IV (Youth Justice), or
(ii) a place of open temporary detention as defined in that Part that has not been designated as a place of safety.
Criteria
(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).
Placement with relative, etc.
(3.1) Before making a temporary order for care and custody under clause (2) (d), the court shall consider whether it is in the child’s best interests to make an order under clause (2) (c) to place the child in the care and custody of a person who is a relative of the child or a member of the child’s extended family or community.
[17] Section 51(3) has been interpreted that the Society must establish, on credible and trustworthy evidence, reasonable grounds to believe that there is a real possibility that if a child is returned to his or her parent, or parents, that it is more probable than not that the child will suffer harm, and that the child cannot be adequately protected by terms and conditions of an interim supervision order: Children’s Aid Society of Ottawa-Carleton v. T., [2000] O.J. No. 2273 (Ont. S.C.J.).
[18] I find that while some tangible progress has been made by the father, that the following concerns remain:
(a) the father’s substance use is self-reported;
(b) he has provided no medical reports and he has just signed a consent for that disclosure;
(c) there is no written verification from ASTV as to the father’s attendance there;
(d) despite wanting to move out of his current premises, where issues appear to arise because of other persons living in the area, the father still has not found alternative accommodation; although he claims he will move out by the end of June 2017, he provides no corroboration of same;
(e) as recently as May 12, 2017, the father reported he had increased his marijuana use to three times daily, claiming he ran out of his anxiety medication;
(f) there is no corroboration from a physician confirming the father’s evidence regarding a licence for medical marijuana;
(g) there are no drug tests verifying the father’s drug usage, as to the type of drug, or quantity.
[19] Applying the test in Children's Aid Society of Ottawa-Carleton v. T., supra, I find it is more probable than not that the children will suffer harm if returned to the father and that the children cannot be protected adequately by a supervision order at this time.
[20] However, considering the progress that the father has made, I find that some expansion of access, including overnight access, is in the children’s best interests. I do not accept the Society’s submission that currently there should be no overnight access to the father. The order below does attach conditions to the father’s access.
[21] Currently, both the father and mother have unsupervised access, but the access exchanges are supervised at the Society access facility which is closed Sundays, but otherwise open from 9 a.m. to 6 p.m. daily, but only to 4 p.m. on Saturdays.
[22] Currently, the father has access two times weekly for two hours, off Society premises, unsupervised.
[23] I find it is in the children’s best interests for the mother’s access, which is every Saturday, to continue and to be expanded as ordered below.
[24] This case is set for a settlement conference on June 29, 2017. The parties are encouraged to use the settlement conference as an opportunity to assess the father’s expanded access and to identify, clearly, what additional measures, if any, need to be achieved by the father to return the children to his care pursuant to an interim supervision order.
[25] The Society does need to complete, expeditiously, the current kinship assessment it is working on in relation to kin identified by the father. The Society did submit that it may take two months to complete that kinship assessment. Notwithstanding any Society financial resource challenges for timely completion of kinship assessments, children cannot languish in care while kinship assessments take too long to complete. I find that a deadline to provide the kinship assessment, which is just prior to the settlement conference, is reasonable.
[26] Although the father did mention alternative kin-caregivers, there was no evidence from those persons, and no evidentiary basis for the court to consider at this time an order pursuant to s. 51(3.1).
Order
[27] For the foregoing reasons, I make the following temporary order:
The children shall remain in the temporary care and custody of the Society subject to paragraph 2.
This order is without prejudice to the father’s right to bring a further motion for temporary care and custody subsequent to June 30, 2017, including a motion for an order under s. 51(3.1) of the Child and Family Services Act.
The father shall have interim access to the children as follows: (a) each week, one weekday visit for two hours, to increase to seven hours, from 10 a.m. to 5 p.m., during July and August 2017; (b) each week, one weekday visit from 5 p.m. to school time the following morning and the father shall be responsible to take the children to school; when there is no school, the visit shall be from noon on one day to 5 p.m. the following day; (c) after the end of June 2017, on the first full weekend of each month from 4 p.m. Saturday to school time Monday, or if there is no school, then to 5 p.m. Monday; and (d) all access is subject to the following conditions: (i) the father shall submit to any drug tests as required by the Society; (ii) the father shall abide by any written restrictions imposed by the Society as to persons who may be present during access; (iii) the father shall sign all necessary consents for release of information to the Society; (iv) the father shall permit a worker from the Society to enter the father’s residence, on a scheduled or unscheduled basis, during any time that the children are with the father for an access visit, and this shall include allowing the worker to have independent access to the children; (v) the father shall not be under the influence of any substances during access, including without limiting the generality of the foregoing, alcohol or marijuana; (vi) during access, the father shall not leave the children in the care of any other person, except on prior written approval of the Society; (vii) when the father is required to return the children to school, he shall ensure that the children are at school on time; and (viii) the Society is at liberty, in the event of a breach of any of the aforesaid access conditions, to bring a motion to suspend or vary the father’s access, including suspension of overnight access.
The mother shall have interim access to the children every Saturday from 9 a.m. to 4 p.m., except that on the first full weekend of each month, the access shall be until 3:45 p.m. to allow the father to pick up the children by 4 p.m. for his weekend access.
All access exchanges shall be supervised at the Society’s access facility, except when the access schedule requires the father to return the children to school.
By June 27, 2017, the Society shall serve all parties with the completed kinship assessment report, regarding the Society’s current kinship assessment that is in progress relating to the father’s kin.
“Justice V. Mitrow” Justice V. Mitrow Date: May 30, 2017