CITATION: Valoris for Children & Adults of Prescott-Russell v. R. R. v. A.P. vs S.L. 2017 ONSC 4663
COURT FILE NO.: 17-147
DATE: August 2, 2017
SUPERIOR COURT OF JUSTICE - ONTARIO
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
BETWEEN:
Valoris for Children & Adults of Prescott-Russell
– and –
R. R
– and –
A.P.
– and –
S. L.
Sophie Côté-Langlois, counsel for Valoris
Emily Gallagher, agent for Jocelyn Paquette-Landry, counsel for R.R.
Judith Charest, counsel for A.P.
Véronique Fournier, Duty Counsel for S.L.
HEARD: July 27, 2017
RULING ON MOTION for temporary care and custody
Desormeau, j.
ISSUES
[1] The court is dealing with a motion brought under section 51 of the Child and Family Services Act (C.F.S.A.).
The child of these child protection proceedings is: N. R., born […], 2013.
[2] The mother to the child is the Respondent: R.R.
[3] The father to the child is the Respondent: A.P.
[4] The Respondent: S.L. is R.R.’s boyfriend.
[5] On June 30, 2017, an interim, without prejudice order was made by Justice Doyle, pursuant to sub-section 51(2)(c) of the Child and Family Services Act, placing the child with the mother: R.R. and the maternal grandfather: D.R., subject to the supervision of Valoris for Children and Adults of Prescott-Russell, on the 9 conditions set out in Valoris’ Notice of Motion dated June 22, 2017.
[6] Justice Doyle’s Order of June 30, 2017 granted R.R. and S.L. visits with N.R. at all times, as long as they are always being supervised by someone preapproved by the Society.
[7] The same Order sets out that access between the child and A.P. is every second weekend.
[8] The issue at hand for the court is to identify the appropriate temporary care and custody arrangement for this child, pending the completion of these proceedings.
POSITION OF THE PARTIES
[9] The Society’s position is that the interim order made on June 30th, 2017 is appropriate, and a supervision order for the mother is necessary. The Society also agrees that the child could be placed in the care of his father as the Society has no concerns regarding the child’s placement with him. However, the Society maintains that they have concerns towards the mother and S.L., and even if the child is placed with the father, a supervision order is required.
[10] The Respondent mother’s position is that Society’s application should be dismissed due to lack of evidence regarding N.R. being at risk of harm while he is in care of R.R. Alternatively, an order should be made such that the child should be kept in R.R.’s care, without a supervision order. R.R requests a final Order granting A.P. visits with N.R. every second week-end pursuant to the existing custody and access regime of the parties.
[11] The Respondent father is requesting an order placing child in his care and custody; that R.R. have visits with the child every second weekend so long as they are always supervised by the York Centre or someone preapproved of by the Society, and subject to the mother’s conditions as listed in paragraph 1 of the Society’s Notice of Motion dated June 22, 2017; and costs.
[12] S.L. did not file any documents on this motion, and has not filed an Answer and Plan of Care. S.L. was however present, and represented by Duty Counsel Ms. Fournier, who made submissions on his behalf supporting R.R’s requests, and asking that S.L. not yet be noted in default.
[13] As set out in the Society’s Application, issued on June 22, 2017, the following concerns for N.R.’s well-being and the basis for the belief that he is in need of protection are:
a. In September 2016, the Society conducted evaluation of S.L. at the request from the Centres Jeunesses (“DPJ”) following the allegation that S.L’s child: L., returned to his mother’s home with bruises, following a 24 hour non-supervised visit with S.L.;
b. In April, 2017, L suffered injuries while in the care of R.R. and S.L., including bruises and a patch of hair missing from his head;
c. The hospital confirms L.’s injuries are likely due to physical abuse;
d. The explanations provided by both R.R. and S.L. do not account for the child’s injuries;
e. The police confirm L. was abused;
f. Though charges have not been laid, the police are unable to determine who between R.R. and S.L., abused L. The police have been able to eliminate all other suspects;
g. R.R. and S.L. deny any part of physical abuse;
h. On June 9, 2017, N.R. attended his paternal grandparents’ home and had a red mark under his eye. It is alleged that this would have occurred while N.R was under the care of R.R. and S.L.;
i. The abuse was denied by both R.R. and S.L.; and
j. At the time of apprehension, R.R. wanted N.R returned to her immediately.
[14] The affidavit evidence filed by the Society is set out at Tabs 3 and 4 of the Continuing Record, and produced by Child Protection Worker Stephanie Lalande.
[15] The court has also reviewed the Society’s Application found at Tab 1.
[16] R.R. has filed and Answer and Plan of Care, found at Tab 5, as well as her own affidavit, and that of her father, found at Tabs 7 and 8.
[17] A.P. has filed and Answer and Plan of Care, found at Tab 9. His affidavit evidence is at Tab 11.
[18] Briefly summarized, the collective result of the Society’s evidences is as follows:
a. R.R. had an open file from November 14, 2013 to January 20, 2014 due to concerns about her marijuana use, and the impact this had on her parenting abilities;
b. Between September 1, 2016 and October 18, 2016, the Society evaluated S.L. on behalf of the DPJ, due to concerns about S.L.’s son L. returning home from access with S.L. with bruises;
c. On April 13, 2017, allegations are brought to the attention of the Society regarding L., who may have been abused while in the care of S.L. and R.R.. No charges have been laid;
d. The police reported that S.L. has a historical incident from 2015 where charges were laid against both he and an ex-girlfriend for assault;
e. Due to N.R.’s young age, a safety plan was arranged to ensure his safety. N.R. first stayed with S.L.’s mother: Mrs. L., in her home. When Mrs. L. was unable to continue to care for N.R., the maternal grandfather moved in with R.R. to allow for N.R. to return to her home, with constant supervision;
f. On June 9, 2017 N.R. attended his paternal grandparent’s home with a mark under his eye. It is suggested that this mark would have been caused while N.R. was in R.R.’s care, and R.R. may have punched N.R. This is denied by R.R. ;
g. R.R. has been seen by the worker on a number of occasions either having used, or using alcohol;
h. As of June 22, 2017, the child returned to reside with R.R. , with the maternal grandfather: D. R. to supervise the mother at all times; and
i. As of the interim without prejudice Order of June 30, 2017, N.R. is in the care and custody of his mother, supervised at all times by Mr. D.R. , and subject to the 9 conditions set out in the Society’s Notice of Motion.
[19] I have also read R.R.’s affidavit of July 21, 2017, and Mr. D.R.’s Affidavit of the same date. Their evidence is as follows:
a. R.R. does not have a problem with alcohol, and provides explanations for when the worker would have seen her consuming alcohol or having consumed alcohol. This includes that no children were in her care at the time;
b. L.’s mother: Mrs. G., has been causing trouble for R.R. and S.L.;
c. R.R. attached to her affidavit photographs of L. taken the April 2017 week-end in question to support that he was not harmed with in her and Mr. L.’s care;
d. R.R. completely denies any abuse toward L. ;
e. R.R. has completed Triple P;
f. R.R. has sought out a counsellor for an alcohol usage assessment;
g. The June 9, 2017 injury to N.R. could not have occurred while the child was in her care. Ms. R. provided a letter from the daycare, as well as an affidavit from D.R. stating that N.R. did not have any injuries when he was dropped off at the paternal grandparent’s home. She states that “punched” is not in N.R.’s vocabulary. She also questions why N.R. was never brought to the hospital for the red mark under his eye;
h. There have been no concerns noted by the daycare regarding N.R.;
i. R.R. completely denies harming N.R. ;
j. R.R. admits to having mild anxiety and having suffered a panic attack while at the police station after N.R. was apprehended from her care. She provided a picture of medication. Her anxiety does not interfere with her parenting ability. She denies any further mental health issues, and denies any need for anger management;
k. R.R. is employed as a Personal Support Worker (“PSW”), and is able to provide for N.R. financially, emotionally and physically. She applies the skills learned through her employment to her personal life;
l. R.R.’s friends have provided affidavits which support her being a good and loving mother;
m. R.R.’s evidence is that she has been cooperative with the Society throughout their involvement, and has done everything they have asked;
n. D.R. has been residing with R.R. since May 8, 2017. Having her father supervise her time with N.R. causes R.R. a lot of unnecessary complications. R.R. does not believe supervision is still required, and suggests spot-checks could be sufficient;
o. D.R.’s evidence is that he has been supervising all contact between N.R. and R.R. as well as S.L. That S.L. and R.R. reside together. That he has no concerns about R.R.’s ability to care for N.R., that she loves him and would never hurt him. That N.R. did not have a mark on his face when D.R. left R.R.’s home. That the paternal grandmother did not bring to D.R.’s attention any marks on N.R.’s face. He suggests that the mark occurred when N.R. was in the paternal grandparent’s care.
[20] I have read A.P.’s affidavit of July 21, 2017. His evidence is:
a. He has been consistent at access visits with N.R. ;
b. He has serious concerns about N.R.’s well-being while in his mother’s care;
c. N.R. attended the paternal grandparent’s home with a bruise under his eye. N.R. told him that his mother (R.R.) had hit/ punched him;
d. No reasonable explanation has been provided to him by R.R. for the mark under N.R.’s eye;
e. That it is in N.R.’s best interest that he stay with A.P. A.P can assure a safe lifestyle for N.R. N.R. would have his own room in A.P.’s apartment. A.P. has the support of his girlfriend, his father and mother-in-law, and has made arrangements with a babysitter when one is required;
f. A.P. does not use any non-prescribed drugs or any illicit substances and does not abuse alcohol; and
g. A.P. does not have a history of violence.
[21] S.L. did not provide any sworn evidence for the Court’s consideration.
THE LAW
[22] In deciding this matter the Court is guided by the following legal principles:
[a] The paramount purpose of child protection legislation is to promote the best interests, the protection and well-being of children;
[b] if available and appropriate, the least disruptive course of action should be considered;
[c] as articulated by Justice Blishen in the case of Children’s Aid Society v. T, 2000 CanLII 21157 (ON SC), [2000] O.J. No. 2273 at paragraph 10:
“The Children’s Aid Society must establish on credible and trustworthy evidence, reasonable grounds to believe that there is a real possibility that if the child is returned to his parents, it is more probable than not that he will suffer harm. Further, the Society must establish that the child cannot be adequately protected by terms and conditions of an interim supervision order to the parents”.
[23] The court is mindful that tenuous or flimsy suspicion will not suffice. What is required is credible, reliable and trustworthy evidence which must be looked at through the lens of the “reasonable grounds” test. The risk of harm must be more probable than not.
[24] At this early stage of a case the Society has only to demonstrate that it has reasonable grounds to believe that there is a protection risk for the child that justifies Society intervention. Children’s Aid Society of Hamilton v. J.(C.), 2015 ONSC 1203, at paragraph 19; D. (L.) v. Children’s Aid Society of Durham (County) 2005 CanLII 63827 D. (L.) v. Children’s Aid Society of Durham (County), [2005] O.J. No. 5050 (Ont. Div. Ct.).
[25] If the court comes to the conclusion that the risk of harm is more probable than not, the next step in the analysis is to determine whether this risk can be properly managed by returning the child to the parent, subject to the supervision of the Society.
[26] The first question then is whether the Society has met its burden of “probable risk of harm”.
[27] When determining the issue, the court may admit evidence that the court considers credible and trustworthy in the circumstances (s. 51(7) C.F.S.A.). This court considers the statements made to the worker by both the hospital and the police to be credible and trustworthy evidence.
[28] I have considered the comments of Justice Spence, who stated “…I must, in considering the risk of harm to the children, take into account the strength of the Society’s case. For risk of harm is what the case is about at this early stage in the application. Any temporary order that a court makes must be the least intrusive order required to address the risk of harm that the child is "likely to suffer." The weaker the society's evidence, the less "likely" it is that the child will suffer harm.” Catholic Children’s Aid Society of Toronto v. D.(M.), 2006 ONCJ 171 at paragraph 24.
[29] Having considered the circumstances, the court is of the view that the evidence is such that the Society has met its initial burden: it is more probable than not that the child is at risk of harm if returned to R.R.’s care.
[30] Specifically, I have considered the following:
a. The Society has been briefly involved with R.R. in the past;
b. The Society’s affidavit evidence is such that the risk to the child is significant;
c. The evidence is compelling:
i. In the fall of 2016, the Society was asked to assess S.L. due to concerns about his child L. being harmed while in his care;
ii. In April 2017, L. was abused while in the care of S.L. and R.R. It is unknown who caused the injury to L., but it has been narrowed down to either S.L. or R.R. This is supported by the medical and police evidence;
iii. Two months later, N.R. is injured, allegedly while in the care of S.L. and R.R.
iv. S.L. previously having been charged for assault; and
v. N.R. is only four years old, and is vulnerable.
d. The court is also concerned with R.R.’s alcohol consumption as evidenced by the Society worker; and
e. There are significant concerns regarding both S.L. and R.R.
[31] All of this leads the court to the conclusion that there is a strong probability of risk of harm for this child if returned to the same pre-apprehension setting.
[32] I do note that R.R. has completed the Triple P program, has been engaged and cooperative with the Society, is addressing her anxiety issues, and has undertaken the steps to complete an alcohol usage assessment. Additionally, the worker has noted that R.R. has positive interactions with N.R. However, it has not yet been demonstrated by R.R. that she is able to apply the concepts learned through Triple P. While R.R. has commenced her substance abuse assessment, it is not yet complete.
[33] R.R. provided photographs to demonstrate that the injuries to L. did not occur while he was in her care. However, these photographs were not helpful as they did not show the ear that was injured, or where the hair was pulled out.
[34] While S.L. was present at the Temporary Care and Custody Hearing, there was no evidence provided by him for the court to consider.
[35] Having found that it is more probable than not that the child is at risk of harm if returned to the mother’s care, the next question is whether the risk of harm to the child can now be mitigated through supervision of the Society.
[36] The focus in this case, as always, is on the needs and interests of the child. Children’s Aid Society v. T, supra, at paragraph 10.
[37] I have also considered that section 51 C.F.S.A. sets out a hierarchy: the first option is to keep the child with the person who had charge of the child immediately before intervention, with or without a supervision order; the second option is to place the child with another person; and the third and last resort is to have the child in Society care. The law is clear that the court shall not place the child with another person or in care, unless the Society has met the test, and further, that the Court does not feel that considerations would be sufficient to reduce or eliminate the alleged risk.
[38] As articulated by Justice Pazaratz, the degree of intrusiveness of the Society’s intervention and the temporary protection ordered by the court should be proportional to the degree of risk. Children’s Aid Society of Hamilton v. J. (C.), supra, at paragraph 16.
[39] Justice Pazaratz went on to state:
“The overarching principle of the Act is to promote the best interests, protection and well-being of children. Any decisions that are made should consider whether a less intrusive order can be made. The court should protect the autonomy and integrity of the family wherever possible and to respect a child’s need for continuity of care and for stable relationships within a family.”
Children’s Aid Society of Hamilton v. J. (C.), supra, at paragraph 17
[40] I accept the Society’s position that despite the risk, placement of the child with the mother is appropriate and the least intrusive alternative.
[41] The concerns that I have already identified lead me to the conclusion that N.R. cannot be adequately protected without terms and conditions of a Supervision Order. If a supervision order is not granted, it is more probable than not that the child will suffer harm.
[42] Ultimately, I am concerned for N.R.’s safety if left with either R.R. or S.L. without any supervision. I am concerned about the injuries to both L. and N.R. I am concerned that the substance abuse assessment has not yet been completed, and that the Triple P concepts while learned, have not yet been demonstrated.
[43] Based on the evidence before me, I am not persuaded that it would be in N.R.’s best interest at this time to be removed from R.R.’s care and placed in A.P.’s care. However, N.R. shall continue to benefit from a meaningful and generous access schedule with A.P.
[44] I find that the least intrusive option is to have D.R. supervise all access between N.R. and both R.R. and S.L. I am satisfied that D.R. is capable of ensuring that N.R. is not left in the unsupervised care of R.R. or S.L. thereby mitigating any risk to him.
CONCLUSION
[45] Therefore, on a temporary basis, the present status is to remain. N.R. is to remain in the care and custody of R.R. and the maternal grandfather, D.R., subject to the supervision of Valoris for Children & Adults of Prescott-Russell on the following conditions:
a. The Society will have access to the respective residences of the mother, the father and the maternal grandfather with or without prior notice.
b. The Society will have access to the child at all times, with or without prior notice. The Society can meet with the child privately.
c. The parties must cooperate with the Society. Among other things, they must meet the worker and answer his / her calls.
d. The mother and S.L. will never be alone with the child and will ensure they send the child with a preapproved person if the maternal grandfather cannot be present to supervise.
e. The mother and S.L. will take a parenting course and will apply the concepts and tools learned.
f. The mother will be assessed by a substance abuse counsellor for her excessive use of alcohol and will follow all recommendations put forth by this counsellor.
g. The mother will participate in mental health services in order to address her anxiety and emotional issues.
h. The mother will advise the worker if she is taking medication to treat mental health issues.
i. The parties will allow the society to contact the professionals involved with the family, including the child’s doctors, and will allow these professionals to contact the Society. They will sign proper consent forms to this effect.
[46] On a temporary basis, the mother and S.L. shall have visits with the child at all times as long as they are always being supervised by someone preapproved by the Society.
[47] On a temporary basis, the father shall have access with the child every second week-end.
[48] Given that S.L. he has not yet served and filed an Answer and Plan of Care, he is given until August 14, 2017 to effectuate same, failing which he will be noted in default.
Justice Hélène C. Desormeau
Released: August 2, 2017
CITATION: Valoris for Children & Adults of Prescott-Russell v. R. R. v. A.P. vs S.L. 2017 ONSC 4663
COURT FILE NO.: 17-147
DATE: August 2, 2017
SUPERIOR COURT OF JUSTICE - ONTARIO
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
RE: Valoris for Children & Adults of Prescott-Russell v. R.R v. A.P. v. S.L.
BEFORE: DESORMEAU, J.
COUNSEL: Sophie Côté-Langlois, counsel for the Applicant;
Emily Gallagher, agent for Jocelyn Paquette-Landry, counsel for R.R.
Judith Charest, counsel for A.P.
Véronique Fournier, Duty Counsel for S.L.
ENDORSEMENT
DESORMEAU J.
RELEASED: August 2, 2017