Warning

COURT FILE NO.: FC-08-96-4 DATE: 2018/08/13

WARNING This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Services Act, 2017, which deals with the consequences of failure to comply, read as follows:

87 (8) Prohibition re 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) Prohibition re identifying person charged — 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.

142 (3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(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.

Court File and Parties

COURT FILE NO.: FC-08-96-4 DATE: 2018/08/13

ONTARIO SUPERIOR COURT OF JUSTICE

IN THE MATTER OF the Child, Youth and Family Services Act, 2017, S.O. 2017, c. C.14

AND IN THE MATTER OF M.A., A.A.(1) and A.A(2)

B E T W E E N:

THE CHILDREN’S AID SOCIETY OF OTTAWA Applicant – and – N.N. Respondent

Counsel: Marie-Josée Ranger, for the Applicant Cedric Nahum, for the Respondent Mother Debora Scholey, for the Office of the Children’s Lawyer

HEARD: July 30, 2018

Endorsement on Interim Motion

CORTHORN J.

Introduction

1The Society originally intended to proceed with a motion for summary judgment, for an order placing three children in the extended care of the Society. Upon receipt of the respondent mother’s materials on the motion, the Society withdrew its motion for summary judgment. What remains to be determined is the mother’s responding motion for a final or, in the alternative, temporary order placing the children in her care and custody. The respondent father (“A.S.A.”) was noted in default and has not participated in these proceedings.

Background

2The respondent mother (“N.N.”) has four children with A.S.A. Three of the respondents’ four children were apprehended in September 2016. The three children apprehended at that time are:

• M.A. (DOB: […]/04);
• A.A.(1) (DOB: […]/09); and
• A.A.(2) (DOB: […]/12).

3The respondents’ oldest child, (“D.K.”) (DOB: […]/99) has, for the past number of months, been living with N.N.

4A.A.(1) and A.A.(2) were apprehended in September 2016, after the Society received a report that both N.N. and A.S.A. had been charged with human trafficking. M.A. was in the care of his paternal grandfather when his two younger brothers were apprehended. M.A. was apprehended (a) in the days that followed the apprehension of his brothers, and (b) because of a breach of the expectation on the Society’s part that A.S.A. not be in the paternal grandfather’s home.

5The children have been living together in the same foster home; they recently moved from their first to a second foster home.

6The Society has been involved with the respondents and their expanding family for over a decade. In summary:

• Between 2006 and 2017, the Society was made aware of 18 police reports related to N.N. and 31 police reports related to A.S.A.;
• The police reports are for matters ranging from adult conflict between the respondents; to criminal activity on A.S.A.’s part (assault with a weapon, cocaine possession for the purpose of trafficking, and the father being shot in a potential gang shooting); and to the current charges against both respondents related to human trafficking of minors.

7The only charges that remain pending against N.N. are those with respect to human trafficking of minors. Her trial on those charges is scheduled to proceed over several weeks in October and November 2018. N.N. maintains that she is innocent.

8In addition to facing criminal charges, N.N. is dealing with the Canada Border Services Agency (“CBSA”) with respect to her immigration status. N.N. was incarcerated from July 10 to November 1, 2017. She was initially incarcerated because of criminal charges. Although she obtained bail in the criminal proceeding, she was detained and remained incarcerated under immigration bail.

9N.N. did not see any of M.A., A.A.(1), or A.A.(2) while she was incarcerated.

10If N.N. is convicted of criminal charges at the conclusion of her upcoming trial, she may be ordered deported from Canada by CBSA. N.N. recently secured a work permit. It is her hope that by having done so, she is in a more favourable position with respect to her immigration status.

11N.N. describes the events that transpired in the summer of 2017 as a turning point. The Society acknowledges that since being released from incarceration in the fall of 2017, N.N. has engaged in and completed a number of programs. For example, N.N. completed a number of programs through the Elizabeth Fry Society. N.N. continues to attend programs with Narcotics Anonymous, and to participate in activities at her Church and at Harmony House. She is pursuing involvement with “Life Leadership”, with the goal of becoming a leader and speaker at the program’s seminars.

12N.N. acknowledges that many of the problems and issues she faced historically and continues to face stem from her relationship with A.S.A. The Society’s concerns about returning the children to N.N.’s care and custody are based on (a) the historical relationship between the respondents, (b) the potential for N.N. to allow A.S.A. into her life and the children’s lives, and (c) N.N.’s alleged lack of insight into the importance of being transparent with the Society as relates to their concerns.

13M.A. and A.A.(1) are represented by the Office of the Children’s Lawyer (“OCL”). Through their counsel, the two boys are clear in the expression of their desire to resume living with their mother and their oldest brother, D.K.

The Issues

14The issues to be determined on this motion are:

1. Is it required, in the best interests of the children, that they be placed in the care and custody of N.N. on either a temporary or final basis?
2. If so, on what terms is the order to be made?

Issue No. 1 – Return of Children to the Mother

a) The Law

15The paramount purpose of the Child, Youth and Family Services Act (the “Act”) is to promote the best interests, protection, and well-being of children (S.O. 2017, c. C.14, s. 1). As in any case, “the focus of this case must be on the needs and interest of the [children]” (s. 1(2)).

16The authority to make a temporary order in the context of a status review application, such as this one, is found in ss. 94(2), 113, and 114 of the Act. Pursuant to s. 113(8) of the Act, on this motion, N.N. has the onus of satisfying the court that the children’s best interests require a change to the existing order. If N.N. does not meet that onus, then the children must remain in care and custody in accordance with the existing order.

17The significance of the use of the word “require” in the Act was discussed by Kukurin J. in paragraph 16 of the 2010 decision in Children’s Aid Society of Algoma v. S.S., 2010 ONCJ 332:

[T]he use of the word “require” in this provision is not accidental. “Require” is a fairly strong word. It denotes considerably more than being merely desirable. It carries the connotation of necessity or obligation. Moreover, the criterion for determining that there is a requirement for a change is the best interests of the child.

18The best interests of the children are to be determined taking into consideration the factors enumerated in s. 74(3) of the Act.

b) Positions of the Parties

19N.N. relies primarily on the length of time the children have been in care. As of September 2018, it will be two years since the children were apprehended. She also relies on the work she has done and continues to do in an effort to bring stability to her life and to her children’s lives. At the same time, N.N. recognizes that she has not been perfect in her efforts.

20N.N. also points to the timing of the school year in relation to the timing of her motion and the order requested. She submits that it is preferable that the children be returned to her before, rather than during, the school year. If the children are returned to her in August, they will, before they begin a new school year, have time to settle into N.N.’s new residence.

21On behalf of M.A. and A.A.(1), the OCL submits that N.N. has made “leaps and bounds” in her progress in turning her life around and in focussing on the needs of the children. The OCL highlights that despite not having seen their mother for several months in 2017, the two boys remain very close to their mother. N.N. has the support of her surety (with respect to criminal bail conditions). She also has the support of her oldest son. In summary, the OCL submits that the risk of harm to the children, if they are in N.N.’s care and custody, is significantly reduced from what it was when the children were apprehended and in the year or so thereafter.

22The Society relies heavily on (a) an incident on May 22, 2018 involving communication between N.N. and A.S.A., and (b) N.N.’s use of A.S.A.’s name as her employer when filling out an application to rent the home in which she now resides. The Society points to N.N.’s conduct in that regard and to her alleged lack of truthfulness to both the Society and the court in addressing that conduct.

23The Society submits that because of the alleged lack of truthfulness, N.N. does not meet the minimum threshold of co-operation and reliability required for the children to be returned to her care and custody. The Society submits that the needs and interests of the children are met by maintaining the status quo.

c) Analysis

24For the reasons set out below, I am satisfied that a change in the status quo is required at this time. I find that the needs and interests of the children are met at this time by a temporary order returning the children to the care and custody of N.N., subject to the terms set out in the Disposition section of this endorsement.

25Almost two years have passed since the children were apprehended. The Society has not presented and is not, at this time, presenting a plan of care for the children. Rather, the Society recognizes that N.N. has, since the latter part of 2017 and her release from incarceration, made gains personally and in her role as a parent.

26The Society remains as yet, unable to fully trust that N.N. will comply with terms and conditions should the children be returned to her care and custody. The Society’s concerns stem primarily from the following:

a) Events that transpired during an access visit on May 22, 2018; and b) What appears to be N.N.’s involvement in late June 2018 in driving M.A. back to the foster home, after his curfew, at the end of an evening when he had been attending a party.

27The events of May 22, 2018 include N.N. receiving text communication from A.S.A. That communication is in breach of the Society’s expectation that N.N. will have no contact with A.S.A. In discussing the events of that day with the Society, N.N. acknowledged that the children have, on at least two occasions, had face-time chats with A.S.A.

28The Society discussed its concerns with N.N. on May 29, 2018. I accept N.N.’s evidence that she has, since late May, taken steps to prevent communication from A.S.A. For example, she has added a password to use her mobile phone.

29I agree with the Society that N.N.’s use of A.S.A.’s name as a reference, when applying to rent a home, is of concern. I find, however, that N.N. has a better understanding now than she did in the spring, of the importance—both in the context of her criminal bail conditions and her dealings with the Society—of eliminating A.S.A. as a person in her life.

30Despite the communication between A.S.A. and the boys in late May, and N.N.’s use of A.S.A. as a reference, there is no evidence that N.N. has regressed in her efforts to turn her life around and to provide a stable home for her children. The Society’s concern that the May 2018 contact with A.S.A. will cause N.N. to spiral back to her previous ways has not materialized.

31The Society is also concerned that from time to time during her access visits with the children in the community, and without the prior approval as required from the Society, N.N. involved her surety, Mr. K. These events occurred several months ago. I find that the events did not expose the children to any risk of harm. On the contrary, on one occasion the boys went to Mr. K.’s home during a winter sledding outing; they did so to warm up and to use the bathroom.

32I agree with the submission of the OCL and find that the involvement of Mr. K. without approval demonstrates a lack of understanding on N.N.’s part, at the time, of the importance of meeting the expectations of the Society. I also agree with the OCL that if prior approval had been requested for Mr. K. to be involved in the outings, it would likely have been granted by the Society.

33The Society acknowledges that the multi-bedroom home that N.N. is renting with Mr. K. is suitable for the children. There is no issue with respect to housing.

34I find that N.N. has developed a support network that includes Mr. K., her oldest son, D.K., and individuals associated with the various programs she has been attending and continues to attend. I agree with the Society that Mr. K. may not initially have fully appreciated the extent to which he is required to supervise N.N. with respect to contact with A.S.A. The incidents in May 2018 no doubt provided some education in that regard.

35N.N. is residing with her surety as a condition of her bail. I find that N.N. has Mr. K.’s support not only as her surety but in (a) securing and preparing housing suitable for the boys, and (b) developing a pro-social lifestyle. I also find that Mr. K. is available to assist with the children because he is both interested and available to do so, the latter because he works from home and has flexibility in his hours of work.

36I agree with the Society that the evidence from N.N.’s oldest son as to the amount of time he has available to support N.N.’s efforts is likely over-stated. What is important, however, is that D.K. has maintained a relationship with N.N. despite all of her difficulties, remains involved to some extent in the lives of his younger brothers, and is someone with whom the children want to resume living. D.K. is an adult; as his brothers resume living with him and his mother, he will have to make adjustments to balance his needs with those of his family members.

37N.N. asks that I draw an inference and find that with Mr. K., her oldest son, neighbours, friends from church, and other individuals whom she knows, she has a network of people to assist with childcare in the event she secures employment and is unable to be home with the children from time to time. I am unable to draw that inference. The evidence with respect to individuals other than Mr. K. and D.K., who are available to assist with childcare, is lacking.

38The lack of evidence in that regard is, however, not fatal to N.N.’s position. She only recently received a work permit. I anticipate that in the weeks that follow the children’s return, N.N. will focus on (a) settling the children into their new home, (b) preparing the children for school in September 2018, and (c) establishing a routine for the children. Once all of those steps have been completed, N.N. will then be in a position to attempt to find work.

39I find that the uncertainty of N.N.’s immigration status does not preclude the children from being returned to her care and custody. N.N. is taking steps to be able to remain in Canada. She faces potential deportation if she is convicted of one or more offences at the conclusion of her upcoming criminal trial.

40N.N. submits that, should a deportation order be made, having the children in her care and custody provides the best options for them. For example, the children could leave the country with their mother. Alternatively, N.N. would be in a position to arrange for the children to live with their grandmother in the United States. If the children were in the care of the Society, it would not be possible for the Society to arrange for the children to live in the United States with their grandmother.

41With respect to the criminal trial, although it is scheduled to end in mid-November 2018, I note the following. First, there is no certainty that the trial will end on the date scheduled as the final day of trial. Second, the trial is with respect to charges against each of A.S.A. and N.N. The length of the trial is perhaps even less predictable with two accused than it would be with one accused. Third, the trial is before a judge alone. It may be several weeks to several months following the conclusion of the trial before the trial judge’s decision is rendered. Finally, there is always the potential for an appeal from the decision of the trial judge.

42In summary, it may be some months and possibly a number of months into 2019 before the outcome of the criminal trial is known. I find that the trial, in and of itself, is not a sufficient reason to preclude the children from being returned to their mother’s care and custody.

43The Society also points to a recent disruptive access visit. Based on N.N.’s demeanour during that visit, the Society questions her ability to manage the children. Both N.N. and the OCL submit that (a) the visit occurred shortly after the children were moved from their first to a second foster home; (b) the change in foster homes is one that the children resent, and (c) the children are not happy in the current foster home. The Society did not have an opportunity, prior to the return of the motion, to investigate the concerns expressed by the children with respect to their current foster home.

44Prior to this recent access visit, the visits were going well. The Society acknowledges N.N.’s improvement in her parenting skills. The evidence is insufficient to support a specific finding as to the reason for the difficulties encountered by N.N. during the recent access visit.

45In summary, I find that the overall picture is one of improvement on N.N.’s part since the latter half of 2017—almost one year ago. The positive steps taken by N.N. led to progress in her personal and family life. N.N. has been subject to lapses in judgment, which she acknowledges. I find also that N.N. now has a better understanding of the role of the Society. Over time she has come to view the Society less as an obstacle and more as a positive factor in the collective efforts being made to have the children returned to her care and custody.

46I find that the needs and interests of the children are best met if they are returned to N.N.’s care and custody pursuant to a temporary order.

47N.N.’s trust in the Society and her willingness to deal with the Society in a transparent manner is a recent development—within the last month or so. The matter is to be spoken to in approximately three months. During that period, the Society will be in a position to assess the extent to which N.N. continues to improve both in terms of her life with the children and her relationship with the Society.

Issue No. 2 – Terms and Conditions

48On the return of N.N.’s motion, the Society provided the court with a list of “Suggested Conditions”, in the event the children were returned to N.N.’s care and custody on either a temporary or final basis. The suggestions are detailed and number in excess of 30. N.N. submits that some of the suggested conditions are reasonable; to impose each and every condition would, on the other hand, be unnecessarily onerous.

49In addition to being numerous, the Suggested Conditions are phrased in a definitive manner. They require that N.N., Mr. K., and/or D.K. “ensure” that certain things happen or that matters transpire in a particular way. For example, they are each required to “ensure that the children are not exposed or subject to incidents of adult conflict, domestic violence or any criminal activity.” None of N.N., Mr. K., or D.K. is in a position to control everything in the world in which the children function. The children could witness adult conflict while walking down the street, playing in a park, or at school.

50I understand the Society proposes the numerous conditions. For the most part, the purpose served is to have N.N. maintain the gains and improvements she has made in her life and the children’s lives in the past year. They also serve the purpose of emphasizing to N.N. that despite the gains made, she must continue to work hard to make further gains and improve her family life.

51I find, however, that to impose all of the Suggested Conditions, in particular worded as they are by the Society, would be a recipe for failure. For that reason, I have deleted a small number of the Suggested Conditions—including because some of the conditions are repetitive of others. In addition, I have, where appropriate, revised the wording of the conditions from requiring one or more of N.N., Mr. K., and D.K. to “ensure” something. Instead, the conditions require those individuals to “take reasonable steps to ensure” the relevant thing.

52The intention is that the revisions, if followed, provide N.N. with a recipe for success with respect to the return of the children to her care and custody. The terms and conditions imposed are set out in Appendix ‘A’ to this endorsement.

Disposition

53I order as follows:

1. On a temporary basis, M.A. (DOB: […]/04), A.A.(1) (DOB: […]/09), and A.A.(2) (DOB: […]/12) shall be returned to the care and custody of N.N., subject to the terms and conditions attached as Appendix ‘A’ to this endorsement.

54The parties shall schedule the matter for return before the court on the 9:30 a.m. list, for a date no later than the 15th of November, 2018.

Madam Justice Sylvia Corthorn Released: August 13, 2018

Appendix 'A'

COURT FILE NO.: FC-08-96-4 DATE: 2018/08/13

Cooperation and Services

a) N.N. shall work cooperatively with the Society including that she shall:

i) meet regularly with the Society workers, as requested, and take reasonable steps to follow through with any reasonable recommendations, including with respect to: − parenting skills; − strategies around setting limits and boundaries; − routine and structure in her life and in the lives of the children; − responding appropriately to the children’s respective behaviours, including that N.N. shall avoid inappropriate disciplinary measures such as screaming at the children; and − maintaining a safe and stable home for her and the children; ii) allow announced and unannounced visits to the family home; iii) notify the Society in advance of any change of address, telephone number or family constellation; and iv) allow Society workers private access to the children, in the home or in the community, a minimum of once (1) a month.

b) Upon consultation with counsel if desired, N.N. shall sign consent forms, to allow the Society and various professionals, workers, and members of N.N.’s support network involved with the family to share information about their involvement and observations.

Children’s Needs

c) N.N. shall meet the needs of the children, by:

i) registering them for and taking reasonable steps to ensure that they regularly attend school; ii) engaging with the children’s school or schools; iii) taking reasonable steps to ensure that the children continue to be involved in extra-curricular activities; iv) taking reasonable steps to ensure that the children attend all appointments (i.e. doctor, dentist, A.A.(2)’s speech therapy needs); and v) taking reasonable steps to ensure that M.A. is not in a parental role with his siblings.

d) N.N. shall participate in at least two (2) community activities with the children per week during the months the children are not in school, in order to ensure the children are visible in the community (such as attending Sunday mass at the Christ Embassy Church on Walkley Road, attending the Harmony House outreach program with the children), and shall advise the Society of these community activities.

Safety and Support Planning

e) N.N. shall work with the child protection worker to identify and build a safety network of N.N.’s extended family, friends, kin, community supports, etc. the purpose of which network is to assist N.N. to:

i) develop and be in a position to implement a safety plan as relates to the children’s father (“A.S.A.”); ii) take reasonable steps to ensure that the children are appropriately supervised at all times; iii) act protectively; and iv) be truthful and transparent with the Society.

f) N.N. shall, before the children’s return to her care:

i) attend a first support network meeting with the Society with her supports (including Mr. K. and D.K.) to discuss the children’s placement, the Society’s concerns, the conditions of the court order, and safety planning regarding A.S.A.; and ii) permit the children to meet with the Society so that the latter may independently do safety planning with the children.

g) Thereafter, N.N. shall, together with the members of her support network as soon as reasonably available, attend a support network meeting a minimum of once (1) a month to discuss her parenting plan and any concerns that may arise.

Domestic Violence and Substance Use

h) N.N. shall engage in and attend community-based programs, including Narcotics Anonymous and Gateway (Elizabeth Fry Society).

i) N.N. shall refrain from all non-prescription drug use while in a caregiving role.

j) N.N. shall participate in random supervised drug screens as requested by the Society.

k) N.N. shall engage in Violence Against Women counselling until such time as N.N.’s counsellor advises the Society, in writing, that N.N.’s participation in the program is no longer necessary.

l) N.N. shall take reasonable steps to ensure that the children are not exposed or subject to incidents of adult conflict, domestic violence, or criminal activity. If there are any immediate safety concerns, she shall make an immediate call to the Ottawa Police Service and advise the Child Protection Worker within 24 hours of the incident.

m) N.N. shall take reasonable steps to ensure that anyone visiting the family home is sober and will behave in a safe manner around the children. This includes but is not limited to taking reasonable steps to ensure that no one with known criminal involvement, which could place the children at risk, is present in the family home when one or more of the children is present in the family home.

n) N.N. shall follow all of her criminal and immigration release conditions.

o) More specifically, as per her criminal release conditions, N.N. shall have no contact whatsoever with A.S.A, whether through social media or any other form of communication (directly or indirectly);

p) Should A.S.A. contact N.N., she shall take reasonable steps to:

i) remove herself from the situation and immediately cease all contact; ii) call police and report the event(s); iii) call a support person; and iv) notify the Society of the situation as soon as practicably possible.

q) N.N. shall take reasonable steps to ensure that the children have no contact with A.S.A., unless pre-approved by the Society or an order of the court.

r) N.N. shall not allow any third party (other than her surety (“Mr. K.” or adult son (“D.K.”)) to care for the children, reside in the home or stay overnight in the home without the prior approval of the Society or an order of the court.

s) N.N. shall provide the Society with a copy of her lease for her current and any subsequent residence.

Mr. K. and D.K.

t) Mr. K. and D.K. shall work cooperatively with the Society including:

i) meeting regularly with the Society workers, as requested; ii) allowing announced and unannounced visits to the family home; and iii) notifying the Society in advance of any change of address, telephone number or family constellation.

u) Mr. K. and D.K. shall take reasonable steps to ensure that the children are not exposed or subject to incidents of adult conflict, domestic violence, or criminal activity. If there are any immediate safety concerns, they shall make an immediate call to the Ottawa Police Service and advise the Child Protection Worker within 24 hours of the incident.

v) Mr. K. and D.K. shall take reasonable steps to ensure that anyone visiting the family home is sober and will behave in a safe manner around the children. This includes but is not limited to taking reasonable steps to ensure that no one with known criminal involvement, which could place the children at risk, is present in the home when one or more of the children is present in the home.

w) Mr. K. and D.K. shall immediately report to the Society any child protection concerns as relates to N.N. (including any contact between the parents, any contact between A.S.A. and the children).

x) Before the children’s return to N.N.’s care, Mr. K. and D.K. shall attend a support network meeting with the Society and N.N. to discuss the children’s placement and safety planning regarding A.S.A.

y) Before the children’s return to N.N.’s care, Mr. K. and D.K. shall provide to the Society a criminal records check.

General

z) Any breach of these conditions will be sufficient cause for the Society to return the issue of temporary care and custody to the court on an emergent basis, if deemed necessary by the Society.