WARNING

The court hearing this matter directs that the following notice be attached to the file:

This is a case under Part III of the Child and Family Services Act and is subject to one or more of subsections 48(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:

45.—(7) Order excluding media representatives or prohibiting publication.— The court may make an order,

(c) prohibiting the publication of a report of the hearing or a specified part of the hearing,

where the court is of the opinion that . . . publication of the report, . . ., would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.

(8) Prohibition: identifying child.— 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.

(9) Idem: order re adult.— The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

85.—(3) Idem.— A person who contravenes subsection 45(8) or 76(11) (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.

CAS (Niagara) v. A.C., CITATION: 2017 ONSC 6557

COURT FILE NO.: 1/14

DATE: 2017-11-02

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: The Children’s Aid Society of Niagara, Applicant, Appellant and moving party

AND: A.C. and B.R.-D., Respondents

BEFORE: Mr Justice Ramsay

COUNSEL: Wayne Herter for the Society; Nathalie G. Fortier for the parents

HEARD: November 1, 2017 at St Catharines

ENDORSEMENT

[1] The Society moves under s. 69(4) of the Child and Family Services Act, RSO 1990 c. C-11, for temporary care and custody of a child pending its appeal under s.69(1) of the Act from the temporary order for care and custody of Henderson J. dated October 23, 2017.

[2] Henderson J., sitting in the Family Court of this court at St Catharines, found that the child, who had been apprehended at birth, was in need of protection and ordered that she be placed in the care of her parents subject to supervision by the Society pending the Society’s application for temporary wardship. The Society filed an appeal the next day. As a result, by operation of s.69 (3) of the Act, his order is stayed for 10 days or until I make an order under s. 69 (4), whichever is earlier.

[3] The grounds of appeal:

a. The motion judge erred by omitting to give in his reasons a statement of every plan for the child’s care proposed to the court, as required by s.53 (1) (b) of the Act;

b. There is fresh evidence that, if it had been known, would reasonably be expected to have affected the decision.

[4] The Society asks that I place the child with it, i.e. in foster care, with access to the parents.

The evidence before the motion judge

[5] A. was born on […], 2017 and apprehended the following day. If she had been left with her mother, she would have gone home to a residence occupied by her mother A.C., her father, B. R.-D., her paternal grandfather, J.D., J.D.’s stepson and the stepson’s partner, who are both in their late twenties. J.D.’s stepson is the son of his present wife, who left the matrimonial home in July 2017 at J.D.’s insistence.

[6] The Society’s plan of care proposed that A. be a ward of the Society for six months. The Society would provide various services to the parents and would facilitate access.

[7] The parents’ plan of care proposed “immediate return of [A.] to [the parents’] care under any term deemed appropriate by the court.”

[8] The Society was concerned about the mother because she agreed to give up custody of her older daughter being unable to care for her; the mother has a learning disability, severe depression, ADHD and anxiety, and appeared to know little about child care. The mother has shown difficulty coping with the demands of her own personal hygiene, although this is the subject matter of conflicting evidence.

[9] The concern about the father was based on his previous sexual history. He had inappropriately touched his 6-year-old half-sister, T., when he was 14 years old. He was convicted of sexual interference and served a youth sentence of probation.

[10] The concern about the grandfather was based on evidence that allowed a sex offender to live in his residence while children were present and the fact that he got a previous wife’s niece pregnant in her teens. The teenaged niece gave birth to B.R.-D.’s half-sister, whom B.R.-D. later assaulted.

[11] The parents and the other three persons residing in the family home filed affidavits. They deposed that they would be able to care for A.. The father deposed that he had completed all of the programmes required during his probation and that he had been found a low risk to re-offend, a fact which is supported by documentary evidence.

[12] In response to the evidence that he had allowed a convicted paedophile to live in his home, J.D. deposed :

There was never a convicted paedophile residing in my home before, during or after B. R.-D.] resided there. …

In 2013 I had a friend reside with me for a brief period of time. This friend was facing charges relating to a sexual offence but had not been convicted of any crime at that time. The friend moved out of my home after a few months. During that entire period, B. was not residing with me.

[13] In reply affidavits the Society gave the following evidence:

a. P.R. was arrested for breaching his bail by residing with J.D. and J.D.’s 13-year-old daughter G. at a time when P.R. was on bail for sexually assaulting his minor daughter with a condition to stay away from female persons under 16 years of age.

b. B.-R.D.’s half-sister, T., whom B.-R.D. assaulted, was the product of a union between J.D. and his then-wife’s teenaged niece.

c. B.R.-D. refused to talk to the Society about the sexual assault he had committed and delayed giving them any information about it until a few days before the hearing.

The motion judge’s reasons

[14] The motion judge directed himself on the available dispositions and the requirements of section 51 of the Act. He recognized that the onus was on the Society to show that there are reasonable grounds to believe that A. is likely to suffer harm if she is returned to her parents and that the child could not be adequately protected by attaching terms to an order for her return.

[15] He regarded the evidence as to the mother’s mental health issues as mixed and vague. It was essentially based on what the mother had told the Society’s workers, and a short observation at the hospital and a few observations on access visits. He attributed the observed deficits in parenting to be attributable to inexperience. He accepted that the mother’s learning disability does not affect her in everyday life. He found that she had the ability to learn how to parent. He also thought that her depression was not surprising given the recent birth and apprehension, and that it was not strong evidence of a mental health issue. Nevertheless, he was concerned enough to impose a term that the child not be left in the care of the mother for more than two hours at a time until the Society approved. He contemplated that the Society would gradually approve longer periods as the mother learned to care for the child.

[16] As to the father, the motion judge considered the conviction for sexual assault in the context of the father’s attentiveness to the pregnancy and the needs of the mother during that time. He also noted that the father immediately confessed upon offending and followed the required programmes. He did not think that the father posed a risk.

[17] As to the limited family supports, the judge noted that there are three other adults in the home who indicate a willingness to assist.

[18] As to the “question marks” about the grandfather’s background, the judge said:

…he may have permitted a friend who had been charged with sexual assault to live in his residence. I also note that [the grandfather] was the person who dealt with the issues when [the father] was charged with sexual touching as a 14-year-old. [The grandfather] was the person who took [the father] to the police station and … also attended some of [the father’s] therapy sessions with him. This would suggest at the very least that [the grandfather] has some sense of responsibility.

[19] The judge also restricted the grandfather’s time alone with the child to two hours at a time, subject to longer periods if approved by the Society.

[20] The judge concluded:

a. the mother may have difficulties without supports;

b. there is no real concern about the father;

c. both parents seem willing to work with the Society;

d. both parents have three other adults in the residence who are willing to assist them.

[21] The judge then ordered the child to be placed with the parents under supervision with what he considered to be restrictive conditions.

The test for temporary care and custody pending appeal

[22] The parties agree that I have jurisdiction under s.69 (4) of the Act to make the order sought, even though leave to appeal to the Divisional Court has not yet been obtained (assuming, without deciding, that leave is required).

[23] The overarching concern at all stages is the best interest of the child. However, as a hearing has already taken place and a decision rendered, it is not for me to conduct a fresh inquiry and substitute my opinion for that of the motion judge. I am not deciding a stay of an order pending appeal, but the parties agree that I should apply a modified form of the test for a stay pending appeal, as Gauthier J. did in CAS (Sudbury and Manitoulin) v. S.B., [2006] O.J. No. 1808. Citing Sherman v. Drabinsky, [1997] O.J. No. 2735 (Div. Ct), Gauthier J. said:

There is a three-stage test for courts to apply when considering an application for a stay. The components of the test are:

(1) an assessment of the merits of the case to ensure that there is a serious issue to be tried;

(2) an assessment of whether the applicant would suffer irreparable harm if the stay is refused; and

(3) an assessment as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits.

[24] This test has to be modified to take into account that the court is concerned with harm to the child, not the parties. I agree with Gauthier J.’s approach, which is widely followed, because what I am being asked to do would have the same effect as a stay of the order.

Application of the test – serious ground of appeal

1. Requirements of s.53 (1) (b)

[25] The Society has shown an arguable, as opposed to a frivolous, ground of appeal in that the reasons for judgment did not give a statement of the parties’ plans of care. It seems unlikely, however, to succeed. The judge’s reasons demonstrate that he decided the case as s. 53 of the Act requires. He evaluated both parties’ plans of care and gave thorough reasons for basing his decision on the parents’ plan of care. It seems unlikely that his decision would be reversed because of the omission to comply with a technical requirement of the Act.

2. Fresh evidence

[26] The proposed fresh evidence consists of an affidavit reporting on investigation made after the decision was rendered. The Respondents have filed affidavits in response, one from the father and one from the grandfather and the Society has filed a further affidavit in reply.

[27] The first fresh evidence affidavit contains further details about the mother, the father and the grandfather and attaches supporting documents.

[28] The staff worker at the RAFT youth shelter reported that the mother resided there for two weeks twice in 2016, three times in 2015 and once in 2013. She did not take care of herself. She became engulfed in relationships and would lose focus on herself.

[29] The father’s sexual assault of T. may have been more serious than “an inappropriate touch” according to the mother of the child he assaulted.

[30] As to the grandfather, there was further information about his involvement with T.’s mother. The information is hearsay, and it is denied, except to the extent that the grandfather now admits in his affidavit that he took up with T.’s mother (his own niece by marriage) when she was 17, after he was separated from her aunt. T.’s mother gave birth to T. shortly before her 19th birthday. He says that he did not show good judgment in this regard.

[31] Police records, which were mentioned but not placed into evidence before the motion judge, show that in addition to an old criminal record that ends in 1993, the grandfather was actually convicted of failing to comply with a recognizance in June 2015 as a party to P.R.’s breach of recognizance. In April 2014 the grandfather allowed 13-year-old G. to stay the weekend with P.R. and his mother. The grandfather was proposed as a surety but was refused. He knew about his friend’s bail conditions. P.R. was required to live at a stated address, but he stayed with the grandfather for some period of time, “a few months” according to the grandfather. P.R. was later convicted of sexually assaulting his own daughter.

[32] There is also an account based on reports from the grandfather’s last wife, who left the home in July 2017. The reports contain a number of inflammatory allegations that are not demonstrated to be credible given the declarant’s reason to be biased.

[33] The Society has offered to extend supervised access to the parents in their home but the parents have declined. There has been a supervised access visit at the Society’s office.

Admission of fresh evidence on appeal

[34] The Respondents agree that I ought to consider the fresh evidence for my purposes, but do not concede that it will be admitted on appeal.

[35] Fresh evidence is routinely admitted on appeal in child protection matters because things are always developing. Nevertheless, its admission is governed by rules. First, s.69 (6) of the Act provides that the appeal court may receive further evidence relating to events after the appealed decision. The court’s discretion is guided by the test in R. v. Palmer, [1980] 1 S.C.R. 759, which is interpreted in the context of the best interest of the child. The requirements of the Palmer test:

a. The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases;

b. The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

c. The evidence must be credible in the sense that it is reasonably capable of belief, and

d. It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

[36] Given the short time that elapsed between the apprehension and the hearing I think that the first ground is satisfied. This is the ground that is usually applied with some forgiveness in any event.

[37] Some of the proposed fresh evidence has a good prospect of meeting the other three criteria. It is evident that the motion judge was concerned about the risk posed by the mother’s inadequacy and the grandfather’s questionable past history, which in the context of the evidence must have had to do with allowing P.R. into the home with when he had a 13-year-old girl present. It also is evident that the grandfather was viewed as a key support for the mother, although not the only one.

[38] The fresh evidence suggests that the grandfather was less than candid in his account of the involvement with P.R.. He did not mention that he actually picked up a criminal conviction for it, or that he let his daughter stay at P.R.’s residence for a weekend. Nor did he mention anything to do with the implications for society of letting an accused sex offender live away from the residence stated on his bail papers. Finally, now we know that P.R. was convicted and sentenced to a substantial penitentiary sentence. I view the grandfather’s protest that P.R. was not convicted until later to be a quibble from the point of view of child protection.

[39] Secondly, the allegations about how T.’s mother came to be involved with the grandfather are now the subject matter of specific admissions, as opposed to hearsay reports.

[40] All of this is relevant to the grandfather’s ability to provide a supportive atmosphere. Since he is the owner of the home in question, it calls into question the ability of the other residents of the home, as their residency there depends on his good will. It also casts serious doubt on the grandfather’s willingness to observe sexual boundaries and his trustworthiness in cooperating with the authorities. The support to be provided by the grandfather was important to the decision.

[41] The Society has established for my purposes that it has evidence that bears upon a potentially decisive issue, is reasonably capable of belief and if believed it could be expected to have affected the result. A serious question for appeal has been shown.

Application of the test – irreparable harm and comparative seriousness of harm

[42] Commendably, the father works at a job to support his family. The risk, however, is that the child will be neglected by the mother while the father is at work and that the other adults resident in the home will be unable to prevent this. The grandfather’s professed commitment is shaded by the untrustworthiness suggested in his history. The other two adult residents are not committed in any legal sense. They can be expected to help, but it is not their child and they are not responsible for her well-being. All of these circumstances satisfy me that there is a risk of irreparable harm in the case of a child this young.

[43] On the other hand, separation of a newborn from her parents will interfere with the bonding process, and that is a harm to the child. I am aware that attachment can be transferred as long as the child learns to attach to a substitute now, but I am not as sanguine about the process as the child welfare experts seem to be.

[44] On balance, given the mother’s recognized shortcomings and my serious questions about the grandfather, in my assessment there will be less harm in leaving the child in the care of the Society in the short term. The bonding issue can be mitigated by access, which the Society has shown a commitment to facilitating.

Conclusion

[45] Pending the appeal I order the child to be placed with the Society on the terms requested in paragraphs 1 and 2 of the notice of motion at tab 14 of the Continuing Record, until the earlier of

a. the disposition of the appeal or

b. February 12, 2018 at 12 noon.

[46] The case has been scheduled to return on November 6, 2017 to be spoken to. The proceeding should continue without delay. Specifically, further steps that will culminate in setting a trial date should not await the disposition of the appeal. If the trial can be scheduled before the appeal is heard, so much the better.

[47] Costs of today’s motion are not sought or ordered.

J.A. Ramsay J.

Date: 2017-11-02