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

45.-(8) 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.

85.-(3) A person who contravenes subsection 45(8) (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 Niagara v. R.N., 2017 ONSC 5707

COURT FILE NO.: 779/16

DATE: 2017/09/26

SUPERIOR COURT OF JUSTICE (FAMILY COURT) - ONTARIO

RE: The Children’s Aid Society of the Niagara Region, Applicant

AND:

R.N., L.B. and J.W., Respondents

BEFORE: The Honourable Mr. Justice Robert B. Reid

COUNSEL: S. Tut, Counsel, for the Applicant N. Fortier, Counsel, for the Respondent R. N. M. Scull, Counsel, for the Respondent L. B. P. Lucas, Counsel, for the Respondent J. W. C. Leduc, Counsel, for the Office of the Children’s Lawyer

HEARD: August 31, 2017

ENDORSEMENT

[1] The applicant, Children's Aid Society of the Niagara Region (the “Society”), seeks an order that the children, D.W., born […], 2009; M.W., born […], 2012; and S.W., born […], 2014 remain in the temporary care and custody of the respondent, J.W., subject to the supervision of the Society, with specified terms and conditions. In addition, the Society seeks an order that the respondents R.N. and L.B. have access to the children as arranged by the Society and supervised in its reasonable discretion.

[2] The request of the Society is supported by J.W. and by counsel for the Office of the Children’s Lawyer.

[3] The request of the Society is opposed by R.N. and L.B. who seek an order that the children be returned to their care pursuant to a temporary supervision order with any conditions deemed appropriate by the court. They also seek an order that the access of J.W. to the children be supervised at the Society’s office or in the alternative that access exchanges take place at the Society’s office.

[4] Following the apprehension of the children by the Society on December 15, 2016, a temporary without prejudice order was made by Justice J.R. Henderson on December 20, 2016 placing the children in the care of J.W. on terms. The order also provided that R.N. and L.B. have access to the children as arranged and supervised by the Society in its discretion. Neither the Society nor the respondents requested a temporary care and custody hearing until R.N. did so by motion dated August 13, 2017. As a result, the terms of the temporary and without prejudice order have not been reconsidered by a court prior to the argument of this motion on August 31, 2017.

Background facts:

[5] R.N. and J.W. are the parents of the children.

[6] The parents separated on April 1, 2015.

[7] In or around November, 2015, R.N. entered a relationship with L.B. They were married in February 2016, and continue to reside together.

[8] The Society’s involvement began in January 2016 following a report from D.W.’s school principal that adult conflict between R.N. and J.W. was having a negative impact on the child.

[9] In June 2016, the Society received a report that the child M.W. had a broken arm. The injury was investigated for possible abuse but no verification was made. The same month, a teacher at D.W.’s school reported that L.B. was observed slapping the child in the face.

[10] D.W. and M.W.’s school principal reported that L.B. assaulted her in 2016 and as a result is not allowed on the school grounds. The principal also reported being aware of the high level of conflict between R.N. and J.W.

[11] In total, 10 reports were made to the Society between February 17, 2016 and September 2, 2016 by J.W. or his mother, relating to M.W. They alleged potential abuse as demonstrated by injuries. There were allegations of possible inappropriate touching of M.W. by L.B. No concerns were verified.

[12] In September, 2016, J.W. was arrested. The arrest resulted from an assault on R.N. outside the two older children’s public school in the presence of both D.W. and M.W.

[13] In November, 2016, J.W. reported to the Society that S.W. had bruising on her neck and buttock area, as a result of which the Society requested that the children remain with J.W. while the bruises were investigated. R.N. agreed to that temporary situation pending the outcome of the investigation. The child was examined in the Child Advocacy Assessment Program (“CAAP”) at McMaster Children’s Hospital. More will be said below about the result of that examination.

[14] The apprehension occurred on December 15, 2016, when R.N. withdrew her consent to the placement of the children with J.W. The December 20, 2016 order was then made on a without prejudice basis placing the children in the temporary care and custody of J.W., on terms as noted above.

The Society’s concerns as of the date of apprehension:

[15] It is fair to say that the placement of the children with J.W. and the subsequent apprehension would not have occurred but for the Society’s concern about non-accidental bruising sustained by S.W. in November 2016.

[16] In the CAAP assessment dated November 29, 2016, Dr. Nura Hawisa reported on an examination of S.W. in the emergency room of McMaster Children’s Hospital on November 12, 2014.

[17] The referral to CAAP was due to concerns about multiple bruises and to rule out physical abuse. The doctor interviewed the child’s grandmother, L.W. and then examined S.W. Dr. Hawisa reported that according to L.W., D.W. had advised as to the cause of the bruising to S.W. that: “the dog did it”. The doctor makes no further reference to the alleged mechanism of injury. She noted patterned bruises on the right side of the neck and a single bruise on the left side of the neck. Patterned bruises were observed on the right shoulder and on both buttocks. She observed that generally it is less common for accidental bruises to appear on the side or back of the body or in concave areas such as the neck or buttocks. She also observed that patterned bruising typically implies application of force by an object with corresponding surface features and that such bruises are uncommon as a result of accidental trauma, but are routinely seen on children who have experienced inflicted injuries. She observed that the absence of a plausible mechanism for bruising makes them highly suspicious of inflicted injury. Her conclusion was that the bruising was highly suspicious for abusive injury given the location, number, and patterned appearance, and the absence of plausible mechanism. The doctor concluded the assessment by noting that if any further information regarding the matter became available, she would welcome an opportunity to review it and amend her opinion as necessary.

[18] The affidavit filed by L.B. sworn August 13, 2017 states that during attendance at a veterinarian’s office on Monday, November 7, 2016, L.B. was in the examination room with S.W. According to him, S.W. was holding the leash of the five-month-old puppy, on an examination table. When the dog made a sudden movement, S.W. fell onto the floor, landing on her buttocks. He also explained that on or about November 9, 2016, S.W. was playing with the same dog and, although he was not present at the time, it appeared to him as though S.W. had a collision with the dog while the dog was wearing a leash. He opined that the mark on S.W.’s neck appeared to be caused by the dog’s leash becoming wrapped around it. According to L.B. and R.N., explanations were provided in a timely way to the Society representatives as to the bruising on S.W.

[19] In her affidavit of December 19, 2016, Society worker Lindsay King confirmed the explanations given to her by R.N. and L.B. for the bruising to S.W., which explanations were consistent with the content of their affidavits. She also deposed that she provided that same information to Dr. Hawisa and that the doctor advised her that it was unlikely that the dog and/or the fall had created the bruises on the child’s buttock and neck.

Post-Apprehension conduct:

[20] The evidence of what has occurred since the apprehension is a type of after-the-fact conduct that is not directly relevant to the main question, which relates to the Society’s justification for an order of temporary custody and care as of the date of apprehension. However, it is helpful to review it since it may clarify the pre-existing situation.

[21] The Society arranged for the children to attend an afterschool program each week and to attend the Strengthening Families program on Wednesdays. J.W. disagreed with arrangements by the Society to secure a volunteer driver, although the Society’s purpose was to avoid contact and potential conflict between J.W. and R.N. Eventually, J.W. objected to the actual attendance of the children at the Strengthening Families program. He offered various reasons, focused around his perception of R.N.’s inadequate participation. J.W. also suggested that D.W. did not want to attend in order to avoid being in L.B.’s presence. A further excuse by J.W. for not wanting the children to attend the program was his need to have an apology from the worker who runs the program for perceived rudeness. Strengthening Families program staff reported that it was J.W. and his mother who were often late in attendance and very rude to staff when picking up the children. There was some report of R.N. and L.B. fighting outside the program building and away from the children.

[22] J.W. and L.B. were uncooperative with one another in negotiating weekend access for the children. J.W. and R.N. were also uncooperative when the Society worker attempted to negotiate modest changes to the weekend access schedule.

[23] Many allegations were made by both R.N. and J.W. arising from their concerns about alleged abuse or improper conduct by the other concerning the children. The children were examined and questioned on multiple occasions. Complaints were made to the Society and to the police.

[24] Dr. Burke Baird, a paediatrician at the McMaster Children’s Hospital conducted a CAAP assessment on S.W. in April 2017. That assessment was performed as a result of bruises on her body, and particularly around her right eye. Those bruises were explained by the child’s paternal grandfather who said she was accidentally struck by the seat of a plastic swing. However, R.N. alleged that the injury could not have occurred as reported. The doctor concluded that the series of nonspecific bruises did not raise any suspicion or concern and the bruise around the eye was plausibly explained by the accidental impact as described. He went on to opine that a person acting reasonably would not have questioned the accidental nature of the injury, and urged the parties to conduct themselves with the best interest of the child as their primary consideration, impliedly instead of their personal animosity toward each other.

[25] There is evidence that the children, and in particular D.W., have been coached to make false allegations against R.N. and L.B. Likewise, there is evidence that the children have been exposed to both physical and verbal adult conflict.

[26] It appears that L.B. and R.N. have completed the Strengthening Families program with the children, and that L.B. has completed the Caring Dads program. L.B. has enrolled in an anger management course through the Salvation Army. They have followed the recommendations made by the Society and its application. By comparison, it does not appear that J.W. has followed the Society recommendations, in that he has not enrolled in the Caring Dads program, and he has not taken D.W. to a counsellor.

[27] In summary, since the apprehension on December 15, 2016, continued conflict has occurred between J.W. on one side and R.N. and L.B. on the other. Neither side is blameless. Regrettably, the children have been involved. However, there have been no substantiated allegations of abuse or improper treatment of any kind other than the involvement in adult conflict to which I have already referred. The completion of the programs by R.N. and L.B. are to their credit.

Legal principles:

[28] The parties do not disagree on the law applicable to this motion. As set out in subsection 1(1) of the Child and Family Services Act, R.S.O. 1990, c. C.11 (the “Act”), the paramount purpose of the Act is to promote the best interests, protection and well-being of children. A secondary purpose is set out in subsection 1(2) of the Act which is to recognize that consideration should be given to the least disruptive course of action that is available and appropriate in a particular case to help a child.

[29] When a hearing is being adjourned, as it is in this case pending a full hearing, the Act in subsection 51(2) provides that the court shall make a temporary order for care and custody providing for the least intrusive result, beginning with an order that the child remain in or be returned to the care and custody of the person who had charge of the child immediately before the intervention, and increasing to an order keeping or placing the child in the care and custody of the Society. The court must not make an order placing a child or children in the care and custody of a person, other than that person who had charge of the child before the intervention, unless the court is satisfied as to certain criteria. The test is as set out by Blishen J. of this court in Children’s Aid Society of Ottawa-Carleton v. T., reported at 2000 21157 (ON SC), [2000] OJ No 2273 (ONSC) at para. 10:

The [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 or her parents, it is more probable than not that he or she 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.

[30] In making a decision on the issue of temporary care and control, the court may admit and act on evidence that it considers credible and trustworthy in the circumstances, in accordance with subsection the 51(7) of the Act. Further on the subject of evidence, pursuant to subsection 50(1)(a) of the Act, when the court is called upon to determine whether or not to place a child in a person’s care or grant that person access to a child, evidence regarding past conduct of the person toward a child may be considered.

[31] As to the choice of available orders, subsection 51(2) of the Act implies that an order returning the child to the person who had charge before the intervention without supervision will occur where the court is satisfied that there is no risk that the child is likely to suffer harm or that, if there is such a risk, the child can be protected adequately by return to the person without supervision. The next possible order in the scale of increasing intrusion would be to place the child with the person who had charge of the child before the intervention with supervision, assuming that the court is satisfied that there are grounds to believe that there is a risk that the child is likely to suffer harm, but that the child can be adequately protected by a return to that person.

[32] In a case such as this where the Society seeks an order that a child be placed in the care and custody of a person other than the person who had charge of the child before the intervention, the Society bears an onus as set out in subsection 51(3) of the Act. That onus is to call evidence sufficient to satisfy the court 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 that he or she be returned to the person who had charge before the intervention.

Positions of the parties:

[33] The Society begins with the position that there were serious demonstrated protection concerns identified throughout 2016, as regards the children being exposed to adult conflict. In turn, that conflict was taken to cause a risk of emotional harm to the children. Both J.W., on one hand, and R.N. and L.B., on the other, were involved in that conflict. There was specific information about L.B. having exercised inappropriate physical discipline on the children and a report from a teacher at the two older children’s school who was said to have observed L.B. slapping D.W. in the face.

[34] When the report of bruising on S.W. came to light on November 11, 2016, the explanation from R.N. and L.B. was provided to the Society worker and from her to the doctor at the conclusion of the CAAP assessment. The Society relies on the opinion of Dr. Hawisa that the type of bruising was uncommon as a result of accidental trauma but routinely seen on children who have experienced inflicted injuries in the absence of a plausible explanation. She concluded that the bruising aroused a high suspicion of inflicted injury.

[35] On the basis of that credible and trustworthy evidence, the Society submits that reasonable grounds existed to believe that there was a real possibility that it was more probable than not that the children would suffer harm if they were returned to R.N. and L.B.

[36] J.W. supports the position of the Society, adding reference to other reports he made to the Society in 2016 about suspected inappropriate touching of M.W. by L.B., about other suspicious bruising on S.W., and about allegedly retaliatory withholding by R.N. and L.B. of contact between him and the children following his reports to the Society.

[37] Counsel for the Office of the Children’s Lawyer also supported the position of the Society based on the strongly expressed desire of D.W. and M.W. to continue to reside with J.W. It was noted that S.W. was too young to express a view on the subject.

[38] R.N. and L.B. deny that the evidence relied on by the Society is credible and trustworthy. They note the significant number of unverified reports by J.W. during 2016 which they consider to be unfounded and motivated by an attempt on J.W.’s part to “win” the battle over the children. They agreed with comments by Dr. Baird in the April 2017 CAAP assessment when he urged the parties to conduct themselves in keeping with the best interest of the children rather than based on their personal animosity toward each other.

[39] Further, R.N. and L.B. rely on the undenied observation by Society worker, Neal Solomon, that the children were being coached by J.W. to provide certain information to the Society, and were being directly drawn into the adult conflict by J.W.

[40] R.N. and L.B. emphatically expressed concern that Dr. Hawisa did not take into account the explanation given by them for the bruising to S.W. They deny that the CAAP report of November 29, 2016 constitutes credible and trustworthy evidence and criticize the Society for failing to question the veterinarian at whose office they say that some of S.W.’s bruises occurred, in order to seek verification of their explanation for some of the bruising.

[41] They also note their efforts to comply with the Society’s recommendations, by way of counselling and educational courses since the apprehension, and correspondingly the lack of such effort by J.W. Their position is that the Society is obligated to seek further and better evidence, given the passage of time since the apprehension, in order for the evidence to be deemed credible and trustworthy.

Discussion and Conclusion:

[42] The conduct of the respondents in 2016, prior to the apprehension, undeniably displays a high level of adult conflict. There were physical assaults on one another and apparently on members of the teaching staff. On at least some of those occasions, the two older children were present. The coaching of the children on what to say to adults, such as Society workers, is highly inappropriate and undercuts not only the children’s credibility but that of the adults involved in the coaching. Both physical and emotional harm is a concern.

[43] The actions of the respondents subsequent to the apprehension, to which I have referred above, indicate continuing problems as between them, and which serve to confirm the Society’s concerns leading up to the apprehension. While educational courses about parenting completed to date may well be of assistance in the long run, it is not possible to assume that there will be immediate beneficial effects so as to negate prior identified problems.

[44] Unfortunately, there is a likelihood that the children will suffer some harm on an ongoing basis pending the outcome of this proceeding regardless of the court’s decision on this motion. In the context of the legal test which I have articulated, this court must make a decision not about where the children will be unharmed pending the outcome of this proceeding but about whether there are reasonable and probable grounds to believe that there is a risk that the children are likely to suffer harm if they are returned to R.N. and L.B., and cannot be adequately be protected by supervision or by some other means.

[45] It is not appropriate for this court to make a final determination about how S.W. was bruised in November 2016. However, I note the following:

• The nature and position of the bruising on S.W. led Dr. Hawisa to a professional opinion that there was a significant concern about inflicted injury.

• The evidence of Society worker, Lindsay King was to the effect that she specifically conveyed to Dr. Hawisa the mechanism of injury related by R.N. and L.B. Further, Ms. King deposed under oath that Dr. Hawisa responded that it was unlikely that the mechanism of injury was as related by R.N. and L.B.

• The mechanism of the bruising to S.W. in the veterinarian’s office on November 7, 2016 set out by R.N. in great detail in her affidavit of August 13, 2017 appears to have occurred in her absence, and therefore was beyond her direct knowledge. Neither R.N. nor L.B. appears to have been present when they allege the second bruising occurred on or about November 9, 2016.

• It is an odd coincidence that two occasions of bruising would have occurred within a few days, neither of which could be identified by Dr. Hawisa as plausibly explained.

[46] I am satisfied with the credibility and trustworthiness of the evidence relied on by the Society as to the bruising on S.W. I do not criticize the failure to investigate any further, noting in particular that the onus borne by the Society to put before the court credible and trustworthy evidence is significantly different from the proof that would be required in a criminal investigation.

[47] I acknowledge the efforts that have been made by both R.N. and L.B. to comply with the Society’s recommendations as to counselling and educational courses. I trust that those efforts will be of benefit in the long run, not only for the purpose of supporting their position in the final hearing of this matter but also, and mainly to improve their relationships with the children. J.W.’s continued failure to comply with the Society recommendations may well demonstrate his lack of appreciation of the improvements that must be made in the conduct of all the respondents if the children’s best interests are to be protected in the future.

[48] Despite the compliance by R.N. and L.B. with the Society’s recommendations, I am not satisfied that the concerns identified in the November 29, 2016 CAAP assessment have been assuaged, nor am I satisfied that the concerns about emotional harm to the children based on the acknowledged conduct of L.B. in 2016 do not continue to exist.

[49] I am satisfied that the Society has established, on credible and trustworthy evidence, reasonable grounds to believe that there is a real possibility that, if the children are returned to R.N. and L.B., it is more probable than not that they will suffer harm. In coming to that conclusion, I have considered and reject the option of returning the children to R.N. and L.B. subject to Society supervision.

[50] Therefore, there will be a temporary order pursuant to subsection 51 (2)(c) of the Act, that, pending the hearing of the application, the children (D.W., born […], 2009, M.W., born […], 2012, and S.W., born […], 2014) are to remain in the temporary care and custody of J.W., subject to the supervision of the Society, and subject to the following specified terms and conditions:

• J.W. shall permit Society workers to attend at his home on a scheduled and unscheduled basis to meet with the children, in private, if requested.

• J.W. shall ensure that the child, D.W., attends counselling with a counsellor or agency approved by the Society.

• J.W. shall ensure that the children attend medical and dental appointments as recommended by their doctor and dentist, and shall follow treatment recommendations of their doctor and dentist.

• J.W. shall not use alcohol while in a caregiving role. J.W. shall ensure that the children attend daycare or school as applicable on a daily basis, on time, except in cases of illness.

• J.W. shall ensure that the children are appropriately supervised at all times, and that their caregivers have been approved by the Society in advance.

• J.W. shall ensure that the children are not exposed to verbal or physical conflict or violence in the home, or in any location between him and R.N. and L.B.

• J.W. shall ensure that the home environment is clean and free of safety hazards.

• J.W. shall attend whatever counselling and/or education courses as are recommended by the Society.

[51] Further, there will be an order pursuant to subsection 51(5) of the Act that the respondents R.N. and L.B. will have access to the children to be arranged by the Children’s Aid Society of the Niagara Region and be supervised in its reasonable discretion.

Reid J.

Date: September 26, 2017