COURT FILE NO.: FC-14-2199-2
DATE: 2018/05/25
ONTARIO
SUPERIOR COURT OF JUSTICE
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
BETWEEN:
The Children’s Aid Society of Ottawa
Applicant
– and –
J.D. (Mother)
Respondent
– and –
J.D. (Father)
Respondent
Jane McCalla, for the Applicant
Stephen Pender, for the Respondent (Mother)
David Page, for the Respondent (Father)
HEARD: April 19, 2018
endorsement
summers j.
Introduction
[1] This is a motion by the Children’s Aid Society (the “Society”) for temporary care and custody of the child, S., born XXXX, 2017 with specified access to the mother twice a week and to the father once a week. At the hearing, the Society advised that a kinship assessment had just been completed approving the proposed kin. The order now sought is for the child to be placed with the kin, M.J.D., with a gradual two week period of integration into her home.
[2] The parents, Ms. D. and Mr. D., oppose the Society’s motion and seek an order returning S. to their care subject to supervision. If the child is not returned, they wish for her to live with their proposed kin, M.J.D., who is a friend of the mother’s family. The parents ask that access be unsupervised whereas M.J.D. requests that supervision continue and access not be exercised in her home.
Background
[3] The mother, Ms. D., had two older children who were apprehended in 2014 and became Crown Wards in 2015, on default. The protection concerns then were neglect, the mother’s mental health and domestic violence between the mother and her former partner.
[4] Mr. D. is the father of S. She is his only child. The couple reside together and Mr. D. refers to Ms. D. as his fiancée.
[5] This family first came to the attention of the Society in November, 2016 after a call was made to the police alleging that Mr. D. was preventing Ms. D. from leaving the house. She was four months pregnant at the time and had not yet seen a doctor. The Society was advised of the police report and attempted to contact Ms. D. She did not respond. A birth alert was completed and the Society was advised when S. was born.
[6] Following the child’s birth, the Society met with Ms. D. at the hospital. She denied any partner violence by the father and told the Society that she had suffered from post-partum depression following the birth of her last child who went into care. It was her mental illness, she said, that compromised her ability to parent and led to her first two children becoming Crown Wards. Ms. D. said she now knew the symptoms of depression and, therefore, she knew when to seek help should she need it. She confirmed her willingness to work with the Society voluntarily and also asked for the support of a public health nurse. Mr. D. said that he too was willing to work with the Society. A number of referrals were made to community based programs.
[7] In September, 2017, the mother reported concerns to the Society about Mr. D.’s behaviour. She asked for the Society’s help in securing couples’ counselling. She described his disinterest and lack of engagement with the child and alleged that both he and the paternal grandmother were verbally and emotionally abusive toward her. In particular, she reported his threat that if she tried to leave him, he would get custody of S. because he and his mother would tell the Society that she was suffering from post-partum depression again. According to Ms. D., the paternal grandmother, W., was a frequent visitor in their home and a bad influence on the father. She described Mr. D. as controlling, demeaning and threatening. Ms. D. denied having any depressive symptoms. At this point, the Society created the first of three safety plans.
[8] In December, 2017, the mother reported that Mr. D. was an alcoholic and drinking 12 to 13 beers a night, often with the paternal grandmother. Ms. D. further reported the father’s aggressive behavior and that he yelled a lot.
[9] Increasingly, the parents cancelled appointments, made excuses for missed appointments, ignored messages, and refused meetings. They attempted to unilaterally terminate services and failed to follow up with the community supports offered.
[10] Three events precipitated the child’s apprehension on January 30, 2018. On January 18, 2018, the father said he would not meet with the Society again until ordered to do so. The worker advised that, indeed, court proceedings would be the next step taken. By then, over a month had passed without the Society being able to see the child. Two days later, the mother called the worker and asked what she needed to do to avoid court.
[11] On January 25, 2018, the mother and worker met. The mother stated that she was there without the father’s knowledge. She said she wanted to leave the relationship and disclosed multiple instances of abuse by Mr. D. A safety plan was implemented that afternoon and within a few hours, the mother and child were taken to stay with a friend. Within a few hours and unbeknownst to the Society, the mother had returned home with the child.
[12] When the Society learned a few days later, on January 29, 2018, that Ms. D. had gone back to the father with the child, the worker attended the home the same day with a warrant. She advised the parents that S. would be apprehended if the mother was unwilling to leave with her. Ms. D. agreed and they left with the worker. The next morning, she called from the shelter to say she was going home. She said she wanted to be with the father and work together with him to regain care of S. Ms. D. understood that her decision meant that the child would be taken into care immediately.
[13] The Society brought an application for a 3 month Society Wardship order with access at their discretion. On February 2, 2018, Justice Doyle ordered that the child be placed with the Society on an interim without prejudice basis. The mother was granted access a minimum of three times per week; the father’s access was to be a minimum of twice a week, at the discretion of the Society. The parties have exercised access all but a few of their access visits.
The Legal Test
[14] The legal test to be applied on a temporary care and custody motion is found in s. 51(3) of the Child and Family Services Act, R.S.O. 1990, c. C.11 (“CFSA”). This section requires the court to return the child to the person who had charge of the child just prior to the intervention 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 adequately protected by a supervision order.
[15] Section 51 (7) of the CFSA states that for purposes of this temporary determination, the court may admit and act on evidence that it considers credible and trustworthy in the circumstances.
[16] The two part test to be met by the Society was best stated by Blishen J. in Children's Aid Society of Ottawa-Carleton v. T. 2000 CanLII 21157 (ON SC), [2000] O.J. No. 2273, para 10. There she said that the Society has the onus of establishing, on credible and trustworthy evidence, reasonable grounds to believe that there is a real possibility that if the child is returned to the respondents, it is more probable than not that he or she will suffer harm. The Society must also establish that the child cannot be adequately safeguarded by the terms and conditions of an interim supervision order.
Part I – Has the Society satisfied the court that there are reasonable grounds to believe that if the child is returned to her parents, there is a risk that she is likely to suffer harm?
[17] The Society’s primary concerns are domestic abuse and violence by the father toward the mother, the father’s alcohol abuse, and the parties’ lack of follow-through and failure to cooperate with the Society.
[18] In argument, the mother conceded risk of physical harm. She submitted that the Society’s protection concerns for S. could be adequately addressed by a carefully crafted supervision order. Her counsel further submits that the Society has not established emotional harm, arguing that proving emotional harm requires expert evidence. Counsel did not refer me to a specific authority for this but generally referred to a decision of Justice Linhares de Sousa as establishing that requirement. In (Re) D.S., 2001 CanLII 28177 (ON SC), 2001 CarswellOnt 733 (S.C.J.), Sousa J. held that considering the nature of the conditions and behaviours listed in s. 37(2)(f) of the CFSA, some expert evidence might be required in many instances. She does not say that expert evidence is always required to prove emotional harm.
[19] The father disputes risk and denies the mother’s allegations of abuse and violence. He states he quit drinking in December and blames the Society for interpreting everything in a negative way that fits their theory of the case. He alleges that the Society sees only what they want to see and only through the lens of the mother’s past with them. He takes the position that a supervision order is not necessary but says that he will nevertheless submit to the terms and conditions proposed by the mother.
[20] Both parents point to the fact that S. was happy and doing well in their care. The Society does not dispute that the child is healthy and meeting her developmental milestones, however, in addition to their concerns about the father’s behavior and the mother’s inability to be protective, the public health nurse and the family services worker both reported to have observed the child body-rocking. The public health nurse cautioned that rocking can be a self-soothing behaviour and a red flag for possible exposure to domestic violence. The father responds and says that another nurse witnessed the same behaviour by S. and regarded it as cute. He points to this example as just one of the ways that the Society interprets events in a negative way that responds to their own fears.
[21] Subsection 51(7) of the CFSA permits the court to admit and act on evidence that it considers credible and trustworthy in the circumstance. In determining what evidence is credible and trustworthy, the evidence in its entirety must be viewed together. Evidence that may not be credible and trustworthy when viewed in isolation might reach that threshold when examined in the context of other evidence Family and Children's Service v. R.O., [2006] O.J. No. 969 (OCJ).
[22] For the reasons that follow, I find that there is a real possibility of harm to S. if she is returned to her parents. Considering the evidence as a whole, I find that the Society has presented credible and trustworthy evidence to establish reasonable grounds to believe there is a likely risk of harm.
Domestic Violence
[23] On January 25, 2018, the mother disclosed multiple incidents of domestic violence by the father. Her disclosures included some events known to the Society that she had previously described as non-violent. However, for purposes of this motion, the mother recants the allegations of violence that she made to the Society and reverts to her earlier non-violent explanations. She admits to misleading or attempting to mislead the police and Society workers. She says she knows it was wrong but made the accusations against Mr. D. out of fear that he and the paternal grandmother would make good on their threat to take the child from her.
[24] According to the Society, the mother did not retract the allegations of January 25, 2018until she swore her affidavit filed in support of this motion but she did make the Society aware that the father was angry with her for telling the truth about the violence.
[25] One of the mother’s disclosures to the Society was that it was the father’s violent behavior that caused her to suffer a broken arm on June 7, 2017 and that he prevented her from calling 911 right away. However, at the time of the injury, both said it was an accident – that they had been drinking, using cocaine and having fun dancing together when Ms. D. fell against a wall. They did not have S. in their care that night.
[26] Ms. D. now recants this allegation and reverts to her prior assertion that the injury was an accident. The father denies that he was opposed to calling 911 but does not deny attempting to care for Ms. D. himself by trying to reset what he believed to be a dislocated shoulder. No evidence was led to suggest that Mr. D. had any knowledge of how to perform this procedure.
[27] I do not find the account of this injury as an accident to be credible.
[28] The paramedic who responded to the eventual 911 call reported the mother describing Mr. D. as having an aggressive temper although she insisted that he had not been violent with her that night. There is other evidence from the Society that supports concern for the father’s temper. For instance, when the child protection worker attended the home on December 21, 2017, Mr. D. was agitated and upset by her visit. He paced back and forth and was verbally aggressive with her as he leaned in to express his anger that she came to the house without calling first. The mother witnessed this exchange and later told the worker that he treated her the same way.
[29] Ms. D. further reported to the Society on January 25, 2018 that the father had recently punched her in the ribs and hit her in the face with his fist and both happened with the child in the home. Mr. D. denies this allegation and says that if he had punched her or hit her as alleged, she would have been marked and bruised. He states that he is not an angry or violent person.
[30] For purposes of assessing risk on this motion, I do not find the lack of physical evidence of injury to be persuasive. Against the background of the mother’s statements that Mr. D. hit her “recently”, I note the number of appointments cancelled or missed by the parents in the period leading up to the apprehension, the fact that over a month had passed without the Society having seen the child in the home, and the allegation that Mr. D. did not like it when Ms. D. was out of his sight. No one from the Society or other community programs had seen the mother or had been allowed access to the home for several weeks to know what was or was not happening within.
[31] The Society further states that Ms. D. has also disclosed the father’s violence to others. Specifically, when the Society attended to commence the kin assessment, M.J.D., raised concern for Ms. D.’s safety and reported historical text messages from her saying that Mr. D. had been violent with her.
[32] The mother also told the Society on January 25, 2018 that the father yelled at S. and would tell her to shut up. She further said that sometimes the father and paternal grandmother were so loud she would hide in the bathroom with the child. Mr. D. denies this allegation and says he does not yell, he just has a big voice. This accusation is, however, consistent with other reports to the Society by the mother about the father yelling and cursing while drinking and/or endlessly playing video games as well as with observations of the child protection and service workers who visited the home.
[33] In addition, the mother again made the allegation that she first reported to the Society in September, 2017 that the father and paternal grandmother were both verbally and emotionally abusive toward her and had threatened to take the child from her if she tried to leave the relationship. The father denied making this threat but admitted to the Society that his mother had been a source of conflict in his relationship and that he needed to step away from her. The paternal grandmother’s interference is borne out by further statements from the father to the Society in February, 2018 that she had threatened Ms. D. since the child had been apprehended. Similarly, it is the Society’s evidence that the paternal grandmother called them in February to say that Ms. D. was mentally unstable and it was her son who cared for the child. There is evidence that the father did take steps to keep the paternal grandmother at arm’s length but only for a short while.
[34] Another of the mother’s disclosures was that the November, 2016 incident noted earlier did, in fact, involve the father restraining her from leaving the home as was initially alleged when the police were called that night. When they arrived on the scene, Ms. D. denied the violence but still left with them that night. No charges were laid. The incident was recorded as a domestic disagreement. The mother now recants the allegation of violence and says he just did not want her to leave. She explains that an argument earlier on that November evening caused her to reach out to her mother for support and it was her mother who, in turn, called the police. The father’s evidence is that he had, indeed, tried to stop her from leaving because he thought she would go drinking and he did not want that to happen. He says he was being protective and looking out for her best interests.
[35] I find it more probable than not that the father did restrain Ms. D. that night and that she left with the police because she was frightened. No other logical reason was given for her decision to leave with them. The account of restraint is consistent with her subsequent descriptions of the father as controlling, possessive and not wanting to let her out of his sight.
Alcohol Use
[36] It was on December 14, 2017, that Ms. D. expressed concern to the Society that Mr. D. was an alcoholic and drinking excessively. A week later, on December 21, 2017, she again reported that Mr. D. drinks too much with his mother who will arrive with a case of 24 beers.
[37] At court in February, 2018, Mr. D. advised the child protection worker that he had quit drinking on December 18, 2017. He said that alcohol had helped him manage his anxiety. Without it, he said he did not have the necessary coping skills and had been to the hospital several times with panic attacks and medication was prescribed. He also told her that he had been a bad partner and father for several months due to drinking and the constant hangovers that made him miserable. He said he would work to improve his behaviour.
[38] Considering all of the evidence presented on this motion, I do not accept the father’s denials of abuse nor do I accept the mother’s retractions and alternate explanations of events as credible or entirely voluntary. There is a progression and degree of consistency not only in the mother’s disclosures of the father’s violence and aggression toward her but also with the observations of him made by others. I interpret Ms. D.’s conflicting actions and statements as those of a young mother who has reason to be afraid of the father but nevertheless loves him, but also loves her child who she is afraid of losing to the state as she did her first two children. She is fearful of her history with the Society and despite being told that the primary concern is with Mr. D. she voiced her fear that she will lose S. regardless of whether she ends her relationship with him, or not. Her competing fears have thus far led her to choose Mr. D. over the child.
Part II – Can the child be adequately protected by the terms and conditions of a supervision order and returned to her parents?
[39] For the reasons that follow, I am not satisfied that there are terms or conditions of a supervision order that would be adequate to protect the child if returned to her parents at this time. S. is just one year old. She is vulnerable and completely dependent on her parents. There is considerable evidence to indicate that the parents have been unwilling to cooperate with the Society, maintain the services provided or engage in the various programs recommended. Neither parent has given the court any reason to believe that they are likely to cooperate with a supervision order.
[40] The parents’ resistance to working with the Society quickly became apparent despite their assurances following S.’s birth that they were willing to do so. For example, in June 2017, it was recommended that they take a parenting course. The father responded that such programs were for losers. Since he was a parent for the first time, a parenting skills course was seen to be particularly important for him. Neither party ever took the course.
[41] Notwithstanding the mother’s request for the support of a public health nurse after S. was born, she began missing visits in July 2017, and in August, she attempted to terminate them. The Society responded that regular ongoing visits from the public health nurse were required and also told the parents they needed a family doctor. Despite the Society’s direction, neither parent ever arranged for a family doctor or followed through with recommendations and referrals to parenting groups, couples counselling, or play groups for the child to help with her social and motor skills development. In December 2017, the parents withdrew further. They again put an end to the services of the public health nurse. In January, they told the Society’s family services worker that no further visits would take place.
[42] In addition to the lack of cooperation and follow through with community supports, Ms. D repeatedly demonstrated her inability to protect S. by remaining apart from Mr. D. Had there been persuasive evidence of the mother’s ability to separate physically and emotionally from the father, I would have considered the option of returning the child to her care on the condition that the father live elsewhere and not be allowed contact with the child without the approval of the Society.
[43] The evidence further indicates that Mr. D. prefers his relationship with the mother over the steps needed to keep the child out of care. When the Society first attended the house with the warrant for apprehension, he wanted to know the quickest way to get Ms. D. back in the home and whether that was the child’s apprehension or both of them going to a shelter. Ms. D. also reported that before she and S. left with the worker that day, the father had been tugging at her in the bedroom, telling her to stay with him and let the child go into care. It is the Society’s evidence that when they did leave, Mr. D. did not ask to hold S. or say good-bye. He did not interact with her in any way.
[44] The evidence further indicates that the parties’ willingness to work with the Society has not improved since the child was taken into care. Efforts were made to provide both parties with counselling for violence against women as well as couples’ counselling. Anger management counselling, addiction counselling and parenting classes were all made available to Mr. D. It was not until March 22, 2018 that the mother agreed to see a violence against women counsellor.
[45] Also in March, Ms. D. let the Society know that she and Mr. D. were getting along better and planned to attend some counselling and parenting programs. Mr. D. told the Society he was looking into an anger management program plus he attended at Rideauwood Addiction and Family Services, to discuss his alcohol consumption. At that time, he agreed to attend their program and adhere to the treatment plan but on April 10, 2018, admitted that he had not yet registered in any of the recommended programs. When asked by the Society about parenting programs, Mr. D. said he was not in a hurry as he had not even been to court yet. In submissions, his counsel argued that he was prepared to work with the Society and engage in programs that would be helpful to him but not those that are irrelevant. For example, he argued that the Society should be helping him get treatment for his anxiety and not recommending addiction counselling for him. He said he has not gone because he is not an addict.
[46] According to the Society, Ms. D. asked to meet with them in early April to discuss her options for getting S. back. She said things were a lot better since Mr. D. had stopped drinking but she does not see other changes in him. He continues to play his video games until 5:00 a.m. and he still gets very angry and yells. Ms. D. reported that she knows he has not been taking the steps expected by the Society and he blames her “for telling the Society the truth about the violence”. She said that she had a meeting coming up with her violence against women counsellor and would discuss her options for the shelters. The counsellor reported such a discussion with Ms. D. but that she declined the offer to tour the shelter.
Disposition
[47] I find the proposed placement with the kin, M.J.D. is the least disruptive placement consistent with adequate protection of the child.
Access
[48] Ms. D. currently has access 3 times a week for 1.5 hours each visit whereas Mr. D. has access twice a week. His visits are set for 1 hour each. The parents do not see the child in the company of one another but their time with S. is exercised sequentially. On the days when Mr. D. does not see the child, he still accompanies Ms. D. to the agency and waits for her in the lobby.
[49] The mother’s access was fully supervised until late March, 2018 when it became partially supervised. The Society reports that Ms. D. is affectionate with S.: appears confident in caring for her needs; has been receptive to feedback from the worker; and has been able to implement the feedback into her care of the child. She attended all but 5 of her 23 scheduled visits.
[50] The father’s visits remain fully supervised as he needs support and guidance from the worker while he continues to learn new parenting skills. The Society reports that Mr. D. is: receptive to feedback and will seek out guidance when he is unsure of something; affectionate with S.; engages her verbally; involves her in age appropriate play; and is making gains in his knowledge of basic child care but sometimes struggles to stay focused on her despite the worker’s redirection and cues for attention from the child herself.
[51] Mr. D. missed 3 of 16 scheduled visits between February and April, 2018. Two of the three missed visits coincided with appointments cancelled by the mother for reasons of illness or a conflicting appointment. No explanation was provided for Mr. D.’s failure to attend.
[52] Accordingly, pursuant to s. 51(2)(c) of the CFSA, I order that S. be placed in the temporary care and custody of M.J.D. subject to the supervision of the Society. on the following terms and conditions:
M.J.D. shall cooperate with the Society and make herself available to meet with the Society worker or designate, upon request;
M.J.D. shall permit access by the Society worker or designate to S. in the home and/or community;
M.J.D. shall ensure the needs of the child, S., are met;
M.J.D. shall not permit access by Ms. D. or Mr. D. without the prior approval of the Society;
The Parents, Mr. D. and Ms. D.
shall attend couples counselling;
shall obtain a family doctor;
shall report to the Society, within 24 hours, any incidents of domestic violence or conflict including any police involvement in that regard;
shall sign the necessary consents after consultation with counsel allowing the Society to obtain information from the various service providers.
The Mother, Ms. D.
- shall continue to attend counselling for victims of violence against women;
The Father, Mr. D.
shall complete an anger management program such as New Directions;
shall attend the Caring Dads program to learn about the impact of domestic conflict on children;
shall complete a counselling program for alcohol addiction as offered by a recognized facility such as Rideauwood Addiction Services;
shall continue to seek help to manage his anxiety condition; and
shall attend a parenting program for new parents.
[53] Ms. D. shall continue to have access with S. a minimum of 3 visits per week for 1.5 hours each subject to the discretion of the Society regarding the level of supervision required and any increase in the frequency or duration of access. Mr. D. shall also continue to have access a minimum of two times per week for one hour each visit, at the discretion of the Society.
[54] The parties are to arrange the next court date through the trial co-ordinator’s office.
Madam Justice D. Summers
Released: May 25, 2018
COURT FILE NO.: FC-14-2199-2
DATE: 2018/05/25
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990
BETWEEN:
The Children’s Aid Society of Ottawa
Applicant
– and –
J.D. (Mother)
– and –
J.D. (Father)
Respondents
endorsement
Madam Justice D. Summers
Released: May 25, 2018