COURT FILE NO.: FC-18-CP31
DATE: 2018/09/07
ONTARIO SUPERIOR COURT OF JUSTICE
IN THE MATTER OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017, S.O. 2017, c. 14, Sched. 1
BETWEEN:
The Children’s Aid Society of Ottawa Applicant
– and –
A.W. (Mother) Respondent
– and –
P.W. (Father) Respondent
Counsel: Danielle Marchand, for the Applicant Francis Aheto-Tsegah, for the Respondent (Mother) Francis Aheto-Tsegah, for the Respondent (Father) Suzanne Cote, Office of the Children’s Lawyer
HEARD: July 10, 2018
endorsement
D. summers j.
Introduction
[1] The Children’s Aid Society (the “Society”) moves for an order granting it temporary care and custody of the two children, M. born XXXX, 2002 and D. born XXXX, 2006. Their Notice of Motion also seeks an order that the frequency, duration, location and level of supervision for the parents’ access be at the discretion of the Society.
[2] The respondent parents, Ms. A.W. and Mr. P.W., oppose the Society’s motion. They have their own motion before the court. They ask that the children be returned to their care immediately subject to supervision by the Society. In the alternative, the parents seek access three times per week including weekends, to be exercised in the community and in their home, subject to the Society’s supervision. The parents also seek permission to amend their Answer and Plan of Care.
[3] The Society’s motion for temporary care and custody was granted on August 29, 2018 with reasons to follow. These are my reasons.
Background
[4] M. and D. were in the care of the Catholic Children’s Aid Society of Toronto until 2008. They were 5 and 2 years of age, respectively, when they were adopted by their parents.
[5] M. and D. are brothers. They have the same birth mother but different biological fathers.
[6] The mother and father do not have other children. They have been married for over 20 years. Both have established careers.
[7] The maternal and paternal grandmothers live with the family. The maternal grandmother, at 82, is described as active, engaged with her church and close to the children. The parents say she plays a key role helping with the children when they are not home. The paternal grandmother does not enjoy the same degree of good health. She suffers from a form of dementia.
[8] The parents report diagnoses for M. that include ADHD, Oppositional Defiance Disorder and Reactive Detachment (sic) Disorder. The stated diagnoses for D. are ADHD, Anxiety, Fetal Alcohol Syndrome and Reactive Attachment Disorder. The evidence indicates that the boys exhibit symptoms and behaviour consistent with these disorders but it is not clear if these diagnoses have actually been made.
[9] This is the fourth file opening for the family since 2014. All openings have been triggered by contact from either school officials reporting disclosures from the children, or the police.
[10] The children were taken to a place of safety on March 28, 2018. The protection application alleges physical and emotional harm and seeks a 6 month Society Wardship (now Interim Society Care) order with access at its discretion.
[11] On March 29, 2018, Justice P. Roger granted an interim, without prejudice order placing M. and D. in the care and custody of the Society with access at their discretion. The Office of the Children’s Lawyer was asked to represent the children.
[12] For the first month that the boys were in care, the parents chose not to exercise access. Since April 25, 2018, access has been once a week for one hour.
[13] Although asked, the parents have not made any kinship information available to the Society.
The Legal Test
[14] The legal test to be applied on a temporary care and custody motion under s. 94 of the Child and Youth Family Services Act[^1] requires that the court must be satisfied that reasonable grounds exist to believe that if the child is returned home, there is a risk of likely harm that cannot be adequately protected by a supervision order. The test under this new legislation is the same as it was under the previous statute. If the evidence does not meet this test, the child must be returned to the parents or the person who had charge of the child just prior to the intervention.
[15] The court is permitted to admit and act on evidence that it considers credible and trustworthy in the circumstance.[^2] In determining what evidence is credible and trustworthy, the evidence must be viewed in its entirety. Evidence that may not be credible and trustworthy when viewed in isolation might reach that threshold when examined in the context of other evidence.[^3]
[16] The statutory test has two parts. First, the Society must establish, on credible and trustworthy evidence, reasonable grounds to believe there is a real possibility that the child, if returned to the parents, is more probable than not to suffer harm. Second, the Society must establish that the child cannot be returned to his or her parents and adequately safeguarded by the terms and conditions of an interim supervision order. [^4]
The Test – Part I: Is there credible and trustworthy evidence of reasonable grounds to believe there is a risk that the children, if returned to the care of their parents, are likely to suffer harm?
[17] The Society says the answer to this question is yes. It relies on historical evidence from 2014 to the current file opening on March 28, 2018, including disclosures from the children and the admissions of the parents. The first two openings were the result of disclosures by M. The last two were the result of disclosures from D.
[18] The mother and father deny that the children are at risk of harm and seek their immediate return. The parents admit their past use of physical discipline but deny the severity alleged by the Society. They say the boys lie and embellish. They claim that their disciplinary measures are not against the law. They say they are reasonable and necessary to correct misbehavior. The parents also say that if ordered not to use any physical force with their children, they will comply and alter their behavior. As proof of their ability and willingness to change, they point to the fact that they stopped using the belt after they were cautioned by the police and the Society in 2014.
[19] I am satisfied that the Society has met its onus. I find there are reasonable grounds to believe there is a risk that M. and D. are likely to suffer harm if returned to the care of their parents. There is credible and trustworthy evidence to support this conclusion.
Physical Harm
[20] There is a theme to the disclosures made by the boys over the past four years that misbehaviour leads to corporal punishment. Between 2014 and 2018, the children say they have been hit with a belt, kitchen pans, cereal boxes, slippers, toys and the hands of their parents. Their accounts of their punishments are strikingly similar. Their disclosures are also consistent over time whether made to the school, the Society or the police. The boys speak of fear and harm.
[21] The Society has been involved with this family on four occasions.
(i) March 27, 2014
[22] On March 27, 2014, M.’s school contacted the Society. The caller reported M.’s disclosure that his father hit him the previous night on his back and buttocks with a belt until he bled. M. repeated this to the child protection worker and added that his father made him remove his pants. He said that he had been hit many times before with the belt. M. further reported that his brother had been hit the night before by their mother only in another part of the house.
[23] When D. was interviewed by the Society, he similarly said that he had been hit by his mother with her hands while M. was getting the belt in the family room. D. did not witness M. being hit but he said he had seen his father with the belt and heard M. screaming. D. claimed that he later saw red spots in the family room. He thought it was blood. D. said that he too had received the belt in the past and it hurt.
[24] The boys later talked to the police. The accounts of their punishments were consistent with those given to the Society only more detailed. The boys further disclosed that they had previously received the belt from their mother as well as their father.
[25] The father admitted to hitting M. with the belt but said it was the first time. Both parents referred to the punishment as a “spanking”. They explained that M. was being punished for stealing food from other children at school.
[26] The parents’ account of M.’s punishment was similar to the detail provided by the child: he was told to take off his pants; he peed himself; and, he got the belt on his bum and on his leg. The parents said they did not know their actions were against the law. They agreed to stop using the belt and said they would reach out for professional supports to assist them with their sons.
[27] The Society was unable to engage the family on a voluntary basis. The parents said they had supports in place. They were unwilling to provide any specifics in that regard.
[28] Based on the subsequent disclosures by M. and D., the parents have refrained from using the belt as they said they would. What they have not done is refrain from other forms of physical discipline.
(ii) January, 2017
[29] In January, 2017, the Society was again contacted by M.’s school after M. disclosed that he and his brother had been hit, pushed and slapped by their father. M. explained that most recently, his parents punished him because they smelled smoke in the house and thought he was responsible. He said he wanted the hitting to stop. He was nervous about speaking out. M. had been warned by his parents not to speak about what happened at home – especially not to the school. M. expressed fear that if his parents learned of his disclosure, he would be hit when he got home.
[30] The school further reported M. as being protective of his brother. M. was worried about D. because he talked about running away and about dying.
[31] The father acknowledged that he slapped M. when he found a burned paper in the house and admitted to the ongoing use of physical discipline. He said spankings were rare and nevertheless, not against the law. The Society cautioned the parents and made referrals to community resources to assist with their son’s behavioural issues.
[32] When the Society worker met with M., he said that he had talked to his parents, things were better and he felt safe at home.
[33] The Society interviewed D. outside the home but still in the presence of his parents and grandmother. D. stated that M. had been slapped by their father because he would not admit to setting the fire. According to D. nothing else happened. He did not report physical discipline and he did not say he felt unsafe.
[34] The mother subsequently contacted the Society to explore the possibility of placing M. in care. She stated they were not prepared to engage other family members for support and admitted they had not followed up with the community resource referrals. Then, claiming that the Society did not understand their needs, the parents asked that their file be closed.
(iii) November, 2017
[35] On this night, someone from the community contacted the Ottawa Police Service to report a child running along a dark, busy road. It was the road where the family lived. The child was D. The police picked him up and took him home. The parents explained that he had been misbehaving and was sent outside as punishment.
[36] The parents did not respond to the Society’s communications. They were not interviewed and the file was closed with the investigation incomplete.
[37] Later, in March, 2018, D. talked about this incident. He said he had been sent outside by his parents to sleep with the coyotes. He was able to identify the date as late November, 2017. D. said he believed that he would have to sleep outside as he had previously witnessed M. spend a half day outside as punishment although it was warmer then. M. also quotes his parents as telling D. that he would spend that night visiting the coyotes. He said his parents noticed that D. left that night but did not do anything.
[38] The parents describe D. as an emotional child who can be impetuous when anxious. They deny that he tried to run away. They claim he left home that night out of simple defiance.
(iv) March 28, 2018 – The Current Opening
[39] On March 28, 2018, the Society answered a call from D.’s school. The principal said he had seen D. sad before but never distraught like he was that day. D. disclosed that his father hit him five times that morning using his hands and a kitchen pan. He complained of pain in his shoulder, mid-area, leg and back. He claimed he had also been hit in the nose. The caller reported D. saying he was afraid of his parents and did not want to go home. He threatened he would run away like before and said, “I don’t want to take it anymore”.
[40] D. later explained to the Society worker that his father hit him, slapped him and told him he was “useless” for failing to properly clean a kitchen utensil as part of his morning chores. D. said he went to his bedroom, crying and his father followed him, only to discover crackers and toys in his room. Both were forbidden. According to D., his father grabbed his toy light saber and hit him with it on his head and his shoulder. Getting hit, he said, caused him to jerk and further hurt his knee on the dresser. D. told the worker that he was afraid to return home. He said his father hits him when he is really upset but his mother does not have to be that upset before she will hit him. He described an incident a few weeks prior when his mother slapped him so many times that his maternal grandmother stepped in to protect him. D. said it was not until his grandmother threatened to call the police that his mother gave up trying to hit him.
[41] M. gave a similar description of what happened between his brother and his father in the kitchen before he left for school on the morning of March 28, 2018. M. said that his brother often struggled to do his chores properly whereas he is better at following the rules. He said D. must have been really scared to come forward.
[42] The father admitted to hitting D. on the shoulder that morning with the toy light saber but denied hurting him. He said it was just a tap. He denied the other allegations.
[43] The boys gave consistent accounts of other punishments meted out by their parents that included hitting, yelling, being forced to eat bran cereal that made them want to throw up and use the bathroom. Both reported that failing to finish the cereal within a designated time could result in receiving another bowl or being forced to finish the uneaten bowl the next day. The use of bran cereal as a punishment is not disputed by the parents. They deny the boys’ claim that when privileges are lost, they sometimes get so much time added that getting them back is hard. Both boys confirm that their parents no longer use the belt.
[44] When the parents were informed that the children would be apprehended, the mother said she was willing to work with the Society provided all meetings and intervention plans occurred outside of their house. That was a deal breaker, she said, as her home was her sanctuary. If that demand could not be accommodated, the boys would stay in foster care. She said she believed that being in care at this time would give them some perspective. The mother remained adamant that as parents, the Criminal Code[^5] allowed them to spank their children on the bottom.
[45] Where the child’s version of events differs from that of the parent, I prefer the account given by the child.
[46] As proof that they are good parents, the parents rely on a letter from the boys’ pediatrician, Dr. James. He states his belief that A.W. and P.W. are good caregivers with good intentions and there were no concerns about abuse or trauma until the Society’s recent involvement. The parents submit that unlike the Society workers, Dr. James does not have a stake in the outcome of this case and that makes his evidence credible and trustworthy. I do not agree. His medical file is based on self-reports. Unless it was disclosed to him, Dr. James would not necessarily be aware of the parents’ behavior toward the children. Moreover, the very letter that the parents ask the court to give weight to indicates that Dr. James’ knowledge of the Society’s protection concerns is recent. There is no mention that he is aware of the Society’s prior involvement with this family.
[47] The mother and father say they are good parents who provide a safe and nurturing home. They allege that their sons have presented many challenges over the years and point to the various steps taken to get help for them including a psycho-educational assessment for D. in 2015. They say they have high standards and describe themselves as strict but loving parents who emphasize the importance of respect, discipline and education. They claim the children have thrived in their care despite their learning and behavioural issues. They believe that children must not control and dominate the family when they want their own way. Rather, children must abide by the rules, boundaries and expectations set for them.
[48] The mother and father put considerable emphasis on the Criminal Code. They argue it allows them to use reasonable force as parents to discipline their children. They defend their behavior, say it is not against the law and reject the Society’s zero tolerance policy for corporal punishment.
[49] In Durham Children’s Aid Society v. J.L.B. (M)[^6], Justice Nicholson reviews the decision in Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General)[^7] where the Supreme Court of Canada analyzes the scope of physical discipline that is permissible for children under s. 43 of the Criminal Code before it becomes the crime of assault. From there, he extrapolates six principles applicable to child protection proceedings:
Parents or persons who have assumed all the obligations of parents may use corporal punishment;
The punishment must be intended for educative or corrective purposes. In Canadian Foundation for Children, Youth and the Law the court states, “Only sober, reasoned uses of force that address the actual behavior of the child and are designed to restrain, control or express some symbolic disapproval of his or her behavior” are permissible.[^8] Here the parents argue that their punishments were intended to be remedial. I am not persuaded. I find the discipline they imposed on the children was reactive and motivated by anger and frustration when rules and expectations were not met. Force under those circumstances cannot be seen as reasoned or sober and should not be tolerated;
The child must be capable of benefiting from the correction. This means that the capacity to learn must exist alongside the possibility of successful correction. Here, the parents point to M. and D.’s learning and behavioural issues when explaining their challenges as parents to raise them. Considering the evidence of the boys’ potential mental health diagnoses and the other challenges they face, I find it inconsistent for the parents to expect their sons to have the capacity to make positive and corrective changes from the use of force. M.’s recent evidence indicates that with age, he is better able to control his behavior and follow the rules. He says that he no longer gets hit as much and it no longer hurts as much [Emphasis added]. For D., the situation is different. He is younger and still struggles to follow the rules and complete his chores properly. I am confident that the benefit and correction contemplated in the case law does not include fear-based learning motivated by self-protection;
Children under two years of age are not capable of understanding why they have been hit. Therefore, force against children of this age cannot be corrective;
Corporal punishment of teenagers is considered harmful because it can induce aggressive or antisocial behavior. Here, M. is 15 and a teenager. D. is 12 and soon to be a teenager. Their punishment should not be physical;
Physical punishment must be “reasonable under the circumstances”. To determine reasonableness, the court must look at whether the application of force caused harm or created the prospect of bodily harm. If it did, it was not reasonable. Here, the boys expressed their fear of being hit and harmed by their parents. D. said he believed if hit, he could die. Both boys reported continued pain on at least one occasion: M. in 2014 after receiving the belt; and, D. in 2018 after being hit by his father. The court must also determine whether objects, such as rulers or belts were used to deliver the punishment. If so, it was not reasonable. In this case, the parents did not deny their use of the belt in 2014. They have not used it since then but the children report that they continue to be struck with objects such as the toaster oven tray, cereal boxes, slippers and toys. These factors and others including objective appraisals based on current learning and consensus will assist the caregiver and the court to determine whether the force used is reasonable and reduce the danger of subjective decision-making. Outdated notions of what constitutes reasonable force are not to be given undue authority. [^9]
[50] There is considerable evidence before me that the children have suffered physical discipline at the hands of their parents in the past. There is also evidence that the parents do not accept their use of force as a protection concern for the Society. Based on this evidence, there are reasonable grounds to conclude that returning the children to their parents at this time would expose them to a likely risk of harm. I make that finding.
Emotional Harm
[51] I am satisfied on the evidence that M. and D. are also at risk of emotional harm if returned to their parents. The psychological impact of the parents’ words and actions is revealed by the disclosures from the boys. The emotional pain and risk of harm is inherent in their words. One example is D.’s statement to the Society worker that his parents tell him that he is “useless”, “stupid”, an “idiot” and “a retard”. He said the name calling makes him feel sad and worthless.
[52] Another example is D.’s statement that he feels like his parents do not care about his safety. He added, “if they hit me, I could die.” To feel safe, D. said he needed to know that “even if kids do something wrong, the rule is they can’t get hit.” All he wants is for the hitting to stop.
[53] D. expressed his belief that he never pleases his parents, no matter what he does. He believes he has to lie to make them happy otherwise he is in trouble.
[54] M. shared that his parents told him that it was his fault that he got the belt in 2014. They told him that if he tells people about their business, the consequences will be his fault. It’s been emphasized that he should not speak to the teacher and keep their “business in the house”.
The Test - Part II: Can the child be adequately protected by the terms and conditions of a supervision order if returned to his parents?
[55] Before a supervision order can be a viable option for the adequate protection of the child, cooperation from the parents is essential. Here, the mother and father have not demonstrated any willingness to cooperate and work with the Society. They refused a home assessment and continue to refuse home visits. The mother told the Society that her home is her sanctuary and insistence on access to it is a “deal breaker”. A condition allowing home visits is not one the parents say they can agree to. Nevertheless, their counsel argued they would comply with visits if ordered to do so.
[56] The parents have not shown that they are open to guidance from the Society. On more than one occasion, they failed to follow up with recommended community resources. Most recently, they chose to take online parenting and anger management courses in June, 2018 over those recognized community based programs recommended by the Society. Curiously, only one certificate was granted and it was issued in the joint names of the parents. More importantly, the programs, once completed, did not provide any information regarding each parent’s level of engagement or the progress made. Third party feedback of this nature is critical. I accept the Society’s submission that these programs fall short.
[57] The parents do not demonstrate any insight into, or concern for, the potential harm to M. and D. from their use of force. While this is generally concerning, I find it to be exceptionally so here considering the identified mental health issues for the boys that include attachment disorders and anxiety. The concern expressed by the parents has largely been about the legality of physical punishment.
[58] The parents say they can agree to a prohibition on physical punishment as a condition of a supervision order. They say that if hitting concerns the children, it concerns them too and they will stop. They point to their agreement to stop using the belt as proof of their willingness and ability to change. However, this is not a situation where one parent can be counted on to monitor the other. Both defend their right to discipline the children with force. As evidence that a supervision order is adequate to protect the children, the parents further rely on the boys’ history of speaking out about their punishments. They suggest that their willingness to speak up for themselves provides support for a supervision order. I do not agree. It simply leaves the onus on the children to report the use of force. It does not help protect them from it.
[59] I am not persuaded that a supervision order offers the degree of protection needed for M. and D. to return home at this time.
The Children’s Views and Preferences
[60] The CYFSA requires the court to take the child’s views and wishes into consideration and to give them due weight in accordance with the child’s age and maturity.[^10]
[61] The children are represented by the Office of the Children’s Lawyer (“OCL”). M. and D. met with their lawyer on two occasions prior to the motion. The first meeting took place April 17, 2018 before the parents exercised any access. The second meeting between the boys and the OCL took place on July 3, 2019. On both occasions, M. said he loved his parents and wanted to go home even though he believed that he would still be hit once in a while. The OCL conveyed M.’s views and preferences as strong, consistent and independent.
[62] M. is now 15. By all accounts he is a kind, sensitive boy who loves his brother and his parents. It is said that he remembers his first experience in foster care before being adopted. He also experienced the consequences of his disclosures in 2014 and 2017 and those of D. in 2017 and 2018. I find that as he has matured, he has learned to behave in a certain way to minimize his risk of physical punishment. I regard his wish to return home as a choice to be hit on occasion over being in care. That choice should not be one he has to make. It is one thing to be disciplined for misbehavior. It is another to receive unreasonable physical punishment. I have considered M.’s views and preferences in relation to the paramount purpose of the legislation that requires the court to promote the best interests, protection and well-being of children. I find that permitting M. to return home at this time would be inconsistent with the overriding objective of the statute.
[63] Moreover, I am not persuaded that M.’s views and preferences are independent. Both he and D. have experienced the pressure brought to bear by their parents to think about what they have said and done and to recant. Because M. is older and more mature than D. he may be better positioned to hide that pressure and develop a strategy to return to his home. I do not interpret his statements as independent or authentic.
[64] The OCL reported a different view of her meetings with D. When they first met in April, 2018, D. stated his wish to remain in care and have supervised visits with his parents. He feared that they were mad at him because that is what happens when he tells people “stuff”. At the second meeting after having several access visits with his parents, D. said he was ready to see them without being watched. When asked about his wishes, he deferred to his brother and said M. “can speak for me”. D. then said he knows that if he goes home, his parents will not hit him or make him eat that disgusting cereal anymore.
[65] The OCL submitted that D.’s views and preferences were not consistent or strong. Neither were they independent. The workers’ access notes indicate that the parents have put considerable pressure on D. to recant. There is also persuasive evidence that D. feels responsible and guilty for the fact that that he and his brother are in care. On more than on occasion, M. was heard blaming D. for their current situation.
Disposition
[66] For the reasons given, I find that the children should remain in care. An order granting temporary care and custody to the Society is the least disruptive placement consistent with adequate protection of the children at this time.
Access
[67] The parents currently have access for one hour each week. They have exercised access consistently since April 25, 2018. From the Society’s perspective access is problematic and not child focused. There is persuasive evidence that the parents showed the children the court documents and questioned them about their statements to the police and the Society. The parents tell the boys that they do not accept their statements as true. Pressure is exerted to recant. When questioned by their parents, both boys are observed to be uncomfortable. D. sometimes cries. Attempts by the worker to redirect the parents’ conversation is often challenged and, on occasion, the Society has terminated access early. The parents insist that they have the right to ask their children whatever they want. They say they must question them in order to defend against the Society’s allegations.
[68] At the first access visit, the Society discovered that the parents had audiotaped their conversation with the children. When advised that recording was not allowed, the mother quoted the Criminal Code arguing that it was their right to tape their conversations. Access continues to be recorded by the parents as well as the Society.
[69] The messaging to the children during access is that they are responsible for their current circumstances. If they become uncomfortable or upset, the parents offer little, if any, emotional support or reassurance. I find the access visits to date have been of low quality for the children.
My Order
The children, M. and D., shall be placed in the temporary care and custody of the Society.
The parents, A.W. and P.W. shall have access twice a week for two hours each visit subject to the discretion of the Society regarding the level of supervision required and any increase in the frequency or duration of access.
Permission is granted to the parents to amend their Answer and Plan of Care. The amended pleading is to be filed within 30 days.
The parties are to arrange the next court date through the trial co-ordinator’s office.
Madam Justice D. Summers
Released: September 7, 2018
COURT FILE NO.: FC-18-CP31
DATE: 2018/09/07
ONTARIO SUPERIOR COURT OF JUSTICE
IN THE MATTER OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017, S.O. 2017, c. 14, Sched. 1
BETWEEN:
The Children’s Aid Society of Ottawa Applicant
– and –
A.W. (Mother)
– and –
P.W. (Father) Respondents
endorsement
Justice D. Summers
Released: September 7, 2018
[^1]: S.O. 2017, C.14, Schedule 1 [^2]: See note 1, supra, s. 94(10) [^3]: Family and Children's Service v. R.O., [2006] O.J. No. 969 (OCJ) [^4]: Children's Aid Society of Ottawa-Carleton v. T., 2000 21157 (ON SC), [2000] O.J. No. 2273, at paragraph 10 [^5]: R.S.C., 1985, c. C-46 [^6]: 2016 ONSC 6405 at paragraphs 11 and 12 [^7]: [2004] S.C.R. 76 [^8]: Supra, see note 6. [^9]: Ibid at para. 12 [^10]: Supra, see note 1, s. 94 (11)