CAS (Niagara) v. C.K.

CITATION: 2017 ONSC 6639

COURT FILE NO.: 347/17

DATE: 2017-11-03

SUPERIOR COURT OF JUSTICE – ONTARIO

FAMILY COURT

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

AND: C.K., S.T., C.R, and Child and Family Services Department, Six Nations Council

BEFORE: Mr Justice Ramsay

COUNSEL: H. James Wood for the Society, Keith Newell for C.K., Margaret E.F. Scull for S.T., Nathalie Fortier for C.R.

HEARD: November 3, 2017 at St Catharines

WARNING: Section 45(8) of the Child and Family Services Act provides:

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.

ENDORSEMENT

[1] The Society apprehended a child under the Child and Family Services Act, RSO 1990 c. C-11 and applied under s. 40 of the Act for a determination whether the child is in need of protection. At the time of the apprehension, the child was in the legal custody of her father in the former Welland County but the physical care of her paternal grandmother in the former Lincoln County. The Society’s application and its motion for temporary care and custody under s.51 of the Act were brought before Gregson J. in Welland. Gregson J. added the paternal grandmother as a party, made the order placing the child in the grandmother’s care on terms with access to the parents to be arranged by the Society, and transferred the file to the Family Court of this court in St Catharines.

[2] The hearing of the application has not yet been scheduled. A settlement conference is scheduled for November 17, 2017. Today I made findings as to the child’s name, age, religion and aboriginal status which are contained in a separate endorsement that will not be published, except to the parties.

[3] Oral argument was made before me today on the basis that there were three motions to be decided. The Society asked for temporary care and custody under s.58 of the Act; the father asked for temporary care and custody, and so did the paternal grandmother.

[4] The continuing record contains four pleadings:

a. The Society’s application dated September 18, 2017 under s.40 of the Act for a finding that the child is in need of protection and for consequent orders for placement and supervision.

b. The Society’s notice of motion dated September 18, 2017 for an order under s.51 (2) (b) of the Act with respect to temporary care and custody of the child. (This is the motion Gregson J. disposed of.)

c. The paternal grandmother’s notice of motion dated September 18, 2017 for an order adding her as a party to the proceedings.

d. The father’s notice of motion dated October 17, 2017 for an order under s.58 (1) of the Act for access to the child on specified days.

[5] Counsel for the Society did not ask for a finding as to whether the child is in need of protection. Neither did the other parties. Orders under s.58 cannot be made until the child has been found to be in need of protection. I must, then, be dealing with unwritten requests for a further order under s.51. Under s.51 (6), a subsequent order under s. 51 (2) can be made at any time.

The parties

[6] The child was born on […], 2016.

[7] The child’s father is S.T. Her mother is C.K, a registered member of the Six Nations of the Grand River. The child does not share this status. She is therefore not an Indian, but is a native person as those terms are understood in the Act. The added party, C.R. is the paternal grandmother. The Six Nations authorities have chosen not to appear in the present proceedings.

Events leading up to intervention

[8] The Society was involved with the parents in pregnancy planning services because of drug use and domestic violence. From January to June of 2016 the police were called to the family home five times for complaints of domestic violence, none of which resulted in criminal charges. Based on what I consider credible evidence from the grandmother, I believe that the violence was not always perpetrated by the same party. After the birth of the child, the parents entered into a safety plan with the Society. They agreed to supervision by the Society, residence of the child with her mother in a supportive institutional setting and guidance from members of an Aboriginal community support team. Both parents attended programmes provided by the Society in Niagara. On November 17, 2016 the father had a disagreement with the mother. He took the car seat to prevent the mother from leaving the residence and made comments indicating suicidal ideation. He later apologized.

[9] On January 16, 2017 the parents advised the Society that they wanted to start living together with the child. They developed a safety plan.

[10] March 15, 2017 the couple separated at the mother’s instance. They agreed in writing in a home-made contract to custody of the child alternating every three or four days.

[11] On June 24, 2017 the mother’s brother moved into her home. He had got into a fight with someone. He moved out at the Society’s suggestion. At this point the paternal grandmother had information that the mother was involved with a man who had child protection concerns for his own children. The mother denied the relationship but declared it on social media. She has now ended this relationship. The father thought that the mother posed a risk to the child. He picked up the child on June 27, 2017 and kept her without access to the mother. He applied in court for custody under the Children’s Law Reform Act. The father was given temporary custody in proceedings conducted in the absence of the mother. The father left the child with her paternal grandmother on weekends and some weekdays.

[12] On September 16, 2017 the father became upset about money the YMCA (his child care provider) had taken from his bank account. He was unable to pay his bar tab. He became extremely agitated. He called his mother and said he was on a bridge in St Catharines and was going to kill himself. The grandmother called 911 and sent her husband to find the father. The father was on a raised walkway by the Meridian Centre. The police talked him off it and he calmed down, so the father’s stepfather drove him home. During the ride, the father told the stepfather he wanted to go to the YMCA and stab everyone. Once at the grandmother’s home, the father barged in and grabbed the child. His plan was to walk with her three miles to the Seaway Mall to get a bus home. The police came. After two hours of negotiations they tasered the father and rescued the child. The grandmother called the Society and a worker later apprehended the child from the grandmother.

[13] On September 19, 2017 the child was taken before Gregson J. The child has been living with her grandmother ever since.

The plans of care

[14] The Society’s plan of care calls for the child to be placed with the mother on terms that involve significant supervision by the Society.

[15] The mother’s plan of care agrees with this proposal.

[16] The father’s plan of care calls for the child to be placed with him with supervision, or to be returned to him as the person in whose charge the child was immediately before intervention under the Act.

[17] The paternal grandmother’s plan of care calls for the child to be placed with her or to be returned to her as the person in whose charge the child was immediately before intervention under the Act.

Temporary care and custody

[18] The portions of the Act relevant to my purposes are:

51 (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; …

(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). 1999, c. 2, s. 13. …

(3.2) A temporary order for care and custody of a child under clause (2) (b) or (c) may impose,

(a) reasonable terms and conditions relating to the child’s care and supervision;

(b) reasonable terms and conditions on the child’s parent, the person who will have care and custody of the child under the order, the child and any other person, other than a foster parent, who is putting forward a plan or who would participate in a plan for care and custody of or access to the child; and

(c) reasonable terms and conditions on the society that will supervise the placement, but shall not require the society to provide financial assistance or to purchase any goods or services. 2006, c. 5, s. 8 (3).

(5) An order made under clause (2) (c) or (d) may contain provisions regarding any person’s right of access to the child on such terms and conditions as the court considers appropriate. R.S.O. 1990, c. C.11, s. 51 (5).

(6) The court may at any time vary or terminate an order made under subsection (2). R.S.O. 1990, c. C.11, s. 51 (6).

(7) For the purpose of this section, the court may admit and act on evidence that the court considers credible and trustworthy in the circumstances. R.S.O. 1990, c. C.11, s. 51 (7).57

[19] In summary, the choices I am asked to consider are

a. Return to the person from whose charge the child was taken;

b. Return to that person with supervision;

c. Placement with another person.

[20] If I choose b or c I can order access. I cannot choose c unless I am 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 choosing a or b.

[21] It seems to me that my first task is to say who is the person from whose charge the child was taken. I find that immediately before intervention under the Act the grandmother and the father both had charge of the child. The father had legal custody and part-time residence. The grandmother had part-time residence and physical possession. I think that the legislature used the word “charge” as opposed to “custody” to signify that under this subsection legal custody is not the only consideration.

Disposition and reasons

[22] The mother has a history of involvement with people who use drugs and violent men, including the father of the child. She has received and is still receiving significant assistance, from which, to her credit, she is profiting. The mother is making progress, but may still have work to do before she is able to provide a safe home.

[23] The father has a serious criminal record for violence and an extremely bad temper when he is subject to stress.

[24] Together the parents have a history of domestic violence.

[25] I find that there are reasonable grounds to believe that there is a risk that the child is likely to suffer harm unless I resort to s.51 (2) (c) of the Act.

[26] If the child remains with the grandmother there is no such risk.

Order

[27] If the grandmother were the only person who had charge of the child before intervention I would have made an order under s.51 (2) (a) of the Act. Since the father also had charge, I order under s. 51 (1) (c) that the child remain with her paternal grandmother on the terms ordered by Gregson J.

[28] The father’s motion is adjourned sine die. It may be brought back on notice.

[29] I make no order as to costs.

J.A. Ramsay J.

Date: 2017-11-03