CAS Ottawa v. C.W., 2017 ONSC 5761

CITATION: CAS Ottawa v. C.W., 2017 ONSC 5761

COURT FILE NO.: FC-10-1406-2

DATE: 2017/09/27

SUPERIOR COURT OF JUSTICE – ONTARIO

In the matter of the Child and Family Services Act

RE: THE CHILDREN’S AID SOCIETY OF OTTAWA, Applicant

AND:

C.H. (mother) and M.D. (father), M.D. (father of A.D.), M.O. (father of L.W.), G.L. (father of R.L.) Respondents

BEFORE: Mr. Justice Calum MacLeod

COUNSEL: Jane McCalla, counsel for the Society Wendy D. Rogers, counsel for the respondent mother Frédéric P. Huard, counsel for the respondent father of A.D. Cedric Nahum, counsel for the respondent father of R.L.

HEARD: September 19, 2017

Note: Section 45 (8) of the Child and Family Services Act prohibits any person from publishing or making public information that has the effect of identifying a child who is the subject of the proceeding or the child’s foster parent or member of the child’s family.

ENDORSEMENT

[1] This a care and custody motion in respect of the child, A.W. born […], 2014. The Society seeks a temporary order placing the child in the care of her mother, C.W. under the society’s supervision pending the disposition of this application.

[2] Prior to the Society’s intervention, C.W. had custody of A.W. pursuant to a family court order although she had apparently allowed the father, M.D., to have equal time with A.W. at some point in time.

[3] A.W. was apprehended from the care of the mother along with two other children (who have different fathers) on January 12, 2017. While L.W. and R.L. were placed in the temporary care of the Society on January 13, 2017, A.W. was placed in the temporary care of her father, M.D. She has remained in her father’s care since that time.

[4] The original apprehension was due to concerns about mental health issues but since that time, the other two children, L.W. and R.L. have been returned to their mother’s care under supervision.

[5] Although the placement with M.D. has been supported by the Society, the Society is now of the view that A.W. should be returned to the mother’s care to live with her siblings with the ongoing supervision in place.

[6] There are several reasons for this proposal. Firstly, it is in keeping with the statutory scheme in s. 51 (2) of the CFSA that the child be returned to the care and custody of the person who had charge of the child immediately before intervention if that can be done without the likelihood of harm to the child.

[7] Secondly, intervention by the Society is not intended to be a means of circumventing a family court order or a mechanism for changing custody.

[8] Thirdly, there is a significant risk that M.D. will be incarcerated due to a conviction for assault and breach of probation. Moreover, though he has co-operated with the Society and demonstrates certain parenting skills, he has not complied with all of the recommendations and requests of the Society despite the requirement to follow such recommendations in the existing court order.

[9] Finally, there is the benefit of restoring the family unit so that A.W. may continue in daily contact with her siblings.

[10] All other parties before the court, apart from M.D., support the position of the Society.

[11] M.D. states that in fact the child was in his care at the moment of apprehension as A.W. was with him on that date for an overnight visit. Moreover, he points out that since January, he has had the primary care of A.W. with the approval of the Society and the court and he has facilitated access between A.W. and her mother as directed by the Society and by the existing court order.

[12] He argues that he has provided a stable environment for his daughter since January, that he was caring for her every second week prior to that date and there remain significant concerns about the mother’s ability to care for the children as is apparent from the Society’s own affidavit material and the need for ongoing Society supervision.

[13] M.D. opposes disrupting the current stable arrangement and returning the child to a risky situation with the mother who was overwhelmed with the requirements of care for three children just 9 months ago.

[14] M.D. is also optimistic that he will not be incarcerated or may not serve any lengthy term of incarceration. Of course, I am not able to judge this or predict it and it is not addressed in the affidavit evidence.

[15] I am granting the Society’s motion for the following reasons.

[16] Firstly, this is the care and custody motion and the first occasion for the court to consider the temporary placement of the child on the merits. The existing order of De Sousa J. is a without prejudice order.

[17] Secondly, notwithstanding the fact that A.W. was on an overnight visit with her father at the moment of the apprehension and the fact that the mother had been allowing generous access to the father prior to that, she is the custodial parent under the existing family court order and she is the parent who had primary care of A.W. at the time of the intervention. Accordingly, the Act requires A.W. be returned to the mother’s care under supervision if that can provide adequate safeguards.

[18] On the evidence, there is reason to be concerned that the children require protection and that parenting by the mother be supervised. This is the basis for intervention by the Society but in accordance with the statutory scheme, pending a resolution of the Application, the least intrusive option under s. 52 (2) is the option to be adopted.

[19] I am not prepared to speculate on the sentence M.D. can anticipate in October, but that conviction and the pending sentencing date are cause for concern.

[20] While the order of June 26, 2017 in respect of the other two children was on consent, Swartz J. was prepared to make that order in similar terms and the mother had had those children in her care under supervision since that date. The affidavit deals with her experience since that time.

[21] Finally, since each of the Society and the other parties including M.D. will be vigilant in assessing compliance with the conditions, this is an appropriate temporary order.

[22] Order to go as asked by the Society effective as of September 20, 2017

Mr. Justice Calum MacLeod

Date: September 27, 2017

CITATION: CAS Ottawa v. C.W., 2017 ONSC 5761

COURT FILE NO.: FC-10-1406-2

DATE: 2017/09/27

In the matter of the Child and Family Services Act

Note: Section 45 (8) of the Child and Family Services Act prohibits any person from publishing or making public information that has the effect of identifying a child who is the subject of the proceeding or the child’s foster parent or member of the child’s family.

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: THE CHILDREN’S AID SOCIETY OF OTTAWA, Applicant

AND:

C.H. (mother) and M.D. (father), M.D. (father of A.D.), M.O. (father of L.W.), G.L. (father of R.L.) Respondents

BEFORE: Mr. Justice Calum MacLeod

COUNSEL: Jane McCalla, counsel, for the Society Wendy D. Rogers, counsel for the respondent mother Frédéric P. Huard, counsel for the respondent father of A.D. Cedric Nahum, counsel for the respondent father of R.L.

ENDORSEMENT

MacLeod J.

Released: September 27, 2017