Court File and Parties

Court File No.: C-1518/18 Date: 2019-03-25

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 Family 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.

Superior Court of Justice - Ontario

Re: Children’s Aid Society of Hamilton, Applicant And: A.H., Respondent T.L., Respondent

Before: The Honourable Madam Justice L. Madsen

Counsel: Mr. John Bland, Counsel for the Applicant Ms. Alisa Williams, Counsel for the Respondent Ms. Kathleen Bingham, Counsel for the Office of the Children’s Lawyer

Heard: March 18, 2019

Endorsement

[1] This is the Endorsement in relation to the motion for temporary care brought by the mother, whom I will call “A.” or “the mother”, seeking placement of her child, whom I will call “D.” or “the child,” with her under supervision. In the alternative, she seeks an expansion of access.

[2] The Children’s Aid Society of Hamilton [“the Society,” the “CAS”, or “the agency”] opposes the relief sought by the mother, and seeks a finding the child is not a First Nations, Inuk, or Métis child. That finding is not opposed by the mother or the OCL.

[3] The OCL on behalf of the child supports the mother’s position on this motion.

[4] The child is presently in the care of the society under a temporary temporary without prejudice order.

[5] For the reasons set out, the child shall be returned to the mother’s care under a transitional schedule over the next eight weeks.

Materials Reviewed

[6] On this motion, I have considered the following materials which were before the court:

a. Child Protection Application, returnable November 21, 2018; b. Affidavit of Child Protection Worker Natasha Escott, sworn November 20, 2018; c. Answer and Plan of Care of the mother, A.H., dated December 17, 2018; d. Plan of Care of the Children’s Aid Society, dated January 7, 2018 (this appears to be a typo as the document was filed January 8, 2019); e. Notice of Motion of the mother, dated January 24, 2019; f. Affidavit of the mother, sworn January 24, 2019; g. Notice of Cross-Motion of the Society, dated February 14, 2019; h. Affidavit of Child Protection Worker Natasha Escott, sworn February 14, 2019; i. Affidavit of Virginia Donaldson, Children’s Services Worker, sworn February 13, 2019; j. Affidavit of Parent Support Worker Jessica Steele, sworn February 14, 2019; k. Affidavit of the mother, sworn March 12, 2019; l. Request to Admit filed by the Office of the Children’s Lawyer on behalf of the child, dated February 21, 2019; m. Business Records brief of the Society, containing medical records.

Background

[7] The child, “D.”, is 12 ¾. He has been in care, first under a temporary care agreement (TCA), and then under a temporary temporary without prejudice order, since May 2, 2018. D. wants to go home.

[8] The whereabouts of the child’s father, T.L., are unknown. Service on the father was dispensed with on January 28, 2019.

[9] D. has three siblings: T. who is 14; D.’s twin brother J., who is 12; and J.D., who is 11. D.’s three siblings live with their mother. There is no child protection proceeding involving the mother and D.’s three siblings nor any voluntary services agreement.

[10] The society has been intermittently involved with the mother since 2006. The child was in care on two prior occasions due to what was understood to be “failure to thrive.” The child was in his mother’s care from November 2008 until May 2018. The society has been continuously involved with the mother in relation to this child from 2014 onwards.

[11] The child has grown slowly and remains short in stature and small for his age. According to the medical records, as early as when the child was six years old, there was already concern about the child’s size in comparison with his twin brother, who is more average in size. The medical evidence suggests that the issue of the child’s size and stature has been a longstanding issue. Medical professionals have queried whether the cause might be “psycho-social dwarfism” or a physical cause. The cause is presently unclear. The child’s twin, “J.”, who has been raised in the same home, does not appear to have growth issues.

[12] The child has exhibited serious behavioural issues. Before he came into care under the TCA, his behaviours included not listening, swearing, smearing feces in his room, hoarding food, and testing boundaries. Society counsel described his behaviours as “out of control.”

[13] The child’s behaviour’s escalated in 2017 and the mother struggled to manage him. She agreed to the child coming into care on a temporary basis. While the society implied that this was not truly voluntary, the society’s notes stated that she signed the TCA because she felt she was unable to manage the child’s behaviour. The mother did not agree that the other children should come into care and the society did not start proceedings in that regard.

[14] After the child came into care, he continued to exhibit behavioural difficulties for a period of time. During the month of May, 2018, reported incidents included “assaultive behaviour”, and “serious anti-social behaviour.”

[15] The child has gotten taller while in care, but overall, his weight has only marginally increased, with the recent months showing weight loss rather than weight gain. He weighed approximately 58 pounds when he came into care. While initially his weight increased, reaching 67 pounds in July 2018, and about 70 pounds in October 2018, as at January 15, 2019, the child’s weight had dropped to 59 pounds. In other words he has lost approximately 11 pounds over a three month period while in care.

[16] The mother reports providing the children with more fruit and vegetables and trying to reduce sugary food. There is no evidence that the child’s siblings are under-nourished or that there are concerns with their growth or development.

[17] In October 2018, while in care, the child was prescribed Concerta. The society argued that the child’s behaviour started to improve long before Concerta was prescribed. While there were improvements noted, the society’s evidence was that when the Children’s Services Worker attended a medical appointment with the child and the foster mother on October 29, 2018, the foster mother reported that she had seen a “significant difference” in the child’s behaviours over the three-week period since he began taking Concerta. Similarly, the child’s behaviour at school improved considerably after he began taking the medication, and he was bullied less.

[18] The foster mother and the mother have both indicated that the child’s behaviours have improved since the medication was prescribed. The foster mother reported that the child started swimming lessons in the fall of 2018 and that he would not have been able to do this activity before the medication. The foster mother also reports that the child is not testing boundaries as much as before he started taking the medication.

[19] The mother’s current partner is M.G. The evidence is that he has an extensive child protection history as a parent, as well as anger issues, and that he has been inappropriate in relation to the child D. In March 2018, he made a highly problematic Facebook post in which he called both the child and the mother vulgar names and threatened to hurt the child. The society required that he leave the home, and he did.

[20] The society also required that M.G. participate in an anger management program, and he did so. While he told the worker that he “learned nothing” from the program, he also told her that since taking the program he has been better able to step back when conflict arises, and that he has been using strategies such as walking away when there is conflict.

[21] The society permits M.G. to have access to the children twice per week for two hours per visit. The mother has been compliant with the restriction on M.G.’s access to the children, seeking out permission for him to be present for visits over the Christmas period.

[22] The society indicates that M.G. is only one of a series of inappropriate partners to which the child has been exposed. There is evidence of conflict in the mother’s relationships with romantic partners, and that she has been the victim of violence against her.

[23] The mother’s access to D. has expanded over time. When the motion was heard, the mother was seeing the child on Tuesdays from 5:00 p.m. to 8:00 p.m., on Thursdays from 4:00 p.m. to 7:00 p.m., and each weekend from Friday evening until Sunday afternoon. The Court was advised that access was to increase effective immediately such that the Tuesday visit would also become an overnight visit. Going in to the motion, the society had approved access three nights per week out of seven.

[24] The society has sought to work with the mother on a number of issues, including healthy meal preparation, establishing routines for the children including for chores, and home management. I accept the society’s evidence that she has participated only minimally in this regard.

[25] The society has also encouraged the mother to engage in services to address her mental health issues (depression and anxiety), including counselling, and has encouraged her to attend couples counselling with M.G. The mother has missed numerous personal counselling appointments since she started in December of 2018. The mother and M.G. have only recently registered for couples counselling despite the fact that the child has been in care for almost eleven months.

[26] The society has provided a Parent Support Worker (PSW) to assist the mother. The mother has missed many appointments with her. The PSW has observed no improvements in the mother’s home other than a hole in the drywall being repaired.

[27] The mother is difficult to work with. She is often rude to the society workers. She swears at them and becomes irritated and angry. She sends emails in CAPITAL LETTERS. The mother is demanding, insisting for example that she should be able to call the child by telephone at any time. Recently she became upset when she could not have access due to inclement weather and the society having cancelled volunteer drives.

[28] Notwithstanding the mother’s lack of participation with services available to her through the agency, such as the PSW, the evidence of the workers is that there are no visible hazards in the mother’s home given the ages of the children. The PSW, Ms. Steele, praised the mother for preparing a chore chart. It was also noted that the mother had cleared items out of her home and that it looked somewhat less cluttered.

[29] Also notwithstanding the mother’s lack of engagement with the supports available to her through the society, the society has not intervened in relation to any of the child’s siblings (except insofar as M.G. is not permitted to reside in the home or have access to the children without agency approval). The court is not aware of any voluntary services agreement and the society has not started proceedings in relation to the other children. While the mother may have parenting and home management deficits, this suggests that from the society’s perspective, those deficits are not a child protection concern, sufficient to warrant intervention, in relation to the other children.

[30] The child wants to go home. He enjoys the access time he has with his family but would like to have more time. He knows that his medication makes him feel not hungry and so eats when he is told to. The child indicates that there is enough food at his mother’s house and she reminds him to eat. The child does not have worries about going home, and does not like being separated from his family. The child’s lawyer submits that the child is mature and that his wishes have been consistently and clearly been expressed.

[31] The society is prepared to fund a psycho-educational assessment for the child. This could take place whether or not he is in care or with his mother.

[32] The mother is open to the child being transitioned home incrementally and suggests that one overnight be added each two weeks so that within eight weeks, the child is fully at home. She is open to a range of terms of supervision including:

a. That she administer the child’s medications as prescribed by the child’s physician; b. That her partner’s access to the child be in the discretion of the CAS; c. That the child’s routines in her home be similar to those implemented at the foster home (such as with respect to bed time); d. That the mother engage in individual counselling and follow the treatment recommendations of her physician; and, e. That the mother and M.G. attend couples counselling.

[33] While the child wants to return home right away, returning home in stages would also be “fine” from his perspective.

[34] There is evidence that the child’s father is Indigenous. However, the mother does not have information about whether the father is First Nations, Inuk, or Métis. Both the mother and the child state that the child does not identify as a First Nations, Inuk, or Métis child. The mother stated that the child did not participate in cultural practices related to any indigenous heritage. Neither the mother nor counsel for the child oppose a finding that he is not First Nations, Inuk, or Métis.

Positions of the Parties

[35] The mother’s position is that the child should be returned to her care under terms of supervision, either immediately, or over the course of an eight week transition. She argues that she is able to manage the child’s behaviours and support his growth. She says that the child no longer needs to be in care.

[36] The Office of the Children’s Lawyer, for the child, argues in support of the mother’s motion and stresses that the child wants to go home. Counsel asserts that the evidence shows that the child’s behaviours have improved significantly since he began taking Concerta, and that the evidence does not support a conclusion that the society is better able to support the child’s physical growth than is the mother. Counsel submits that the child has a level of maturity such that his wishes should be considered by the Court, and that the risks can be adequately managed by terms of supervision.

[37] The Children’s Aid Society is opposed to the return of the child at this time. The society does not argue that the child should remain in care indefinitely. Rather, the society argues that it is not appropriate for the court to make an order for gradual integration, as this requires predictions about the future. The society states that its goal is to work towards integration of the child in a measured way when there is evidence that the risks have been adequately addressed by the mother. From the society’s perspective, the child’s behaviours have improved largely due to being in care, rather than due to being prescribed Concerta. Further, it says, the mother has shown she is unable to manage the child’s behaviours and physical needs, has ongoing home management issues, and has not been cooperative with the society to take steps to improve the diet or routines in the home. The society also argues that the mother’s choice of partners poses risk to the child.

Applicable Law

Temporary Care and Custody

[38] Section 94 of the Child, Youth, and Family Services Act [“CYFSA”] governs the temporary care of children pending the final determination in a child protection case. The relevant subsections provide as follows:

94 (2) CUSTODY DURING ADJOURNMENT -- 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; or

d) remain or be placed in the care and custody of the society, but not be placed in a place of temporary detention, of open or of secure custody.

94 (4) CRITERIA -- 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);

94 (5) PLACEMENT WITH RELATIVE ETC. – Before making a temporary care order for care and custody under clause 2(d), the court shall consider whether it is in the child’s best interests to make an order under clause 2(c) to place the child in the care and custody of a person who is a relative of the child or a member of the child’s extended family or community;

94 (6) TERMS AND CONDITIONS IN ORDER -- 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.

94 (10) EVIDENCE ON ADJOURNMENTS -- For the purpose of this section, the court may admit and act on evidence that the court considers credible and trustworthy in the circumstances.

[Emphasis added.]

[39] Under the legislation, there is a two part-test that the society must meet on a temporary care hearing:

a. the society must establish, on credible and trustworthy evidence, that there are reasonable grounds to believe that there is a real possibility that if the child is returned to his parents, it is more probable than not that he or she will suffer harm; and

b. the society must establish that the child cannot be adequately protected by terms and conditions of an interim supervision order.

See Children’s Aid Society of Ottawa-Carleton v. T., 2000 CarswellOnt 2156 at para. 10 and Children’s Aid Society of Ottawa-Carleton v. L.(M.), 2017 CarswellOnt 5531 at para. 39.

Least Disruptive Placement

[40] The court must choose an order that is the least disruptive placement consistent with the adequate protection of the child or children, as outlined under section 1(2) of the CYFSA. See Children’s Aid Society of Hamilton v. B.D. and F.T.M., 2012 ONSC 2448 at para. 29 and Children’s Aid Society of Ottawa v. C.N., 2018 CarswellOnt 11610 at para. 27 and 28.

[41] The degree of intrusiveness of the society intervention and the temporary protection ordered by the court should be proportional to the degree of risk. Similarly, the terms and conditions relating to the child’s care and supervision must be reasonable and proportionate to the risks highlighted by the evidence.

[42] The onus is on the society to show that any risk cannot be adequately managed by a supervision order.

Best Interests of the Child

[43] When making an order affecting a child under the CYFSA, the court must at all times be mindful of the paramount purpose of the act which is to promote the best interests, protection and well-being of children.

[44] Under section 73(3), the CYSFA provides that where a person is directed to make a determination in the best interests of a child, the person shall:

(a) consider the child’s views and wishes, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained;

(b) in the case of a First Nations, Inuk or Métis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Métis cultures, heritages and traditions, of preserving the child’s cultural identity and connection to community, in addition to the considerations under clauses (a) and (c); and

(c) consider any other circumstance of the case that the person considers relevant, including,

(i) the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs,

(ii) the child’s physical, mental and emotional level of development,

(iii) the child’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression,

(iv) the child’s cultural and linguistic heritage,

(v) the importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family,

(vi) the child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community,

(vii) the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity,

(viii) the merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent,

(ix) the effects on the child of delay in the disposition of the case,

(x) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent, and

(xi) the degree of risk, if any, that justified the finding that the child is in need of protection.

[emphasis added]

[45] As seen above, in determining the child’s best interests, the Court must consider the child’s views and preferences, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained.

Evidence on a Temporary Care Hearing

[46] On a temporary care hearing, the Court may admit evidence that it considers credible and trustworthy in accordance with section 94(10). While this is a relaxed evidentiary standard, the court must ensure that cases are dealt with justly. In Catholic Children’s Aid Society of Toronto v. R.M., 2017 ONCJ 661 at para. 17, Justice Sherr detailed that principle as follows:

1. Rule 2(2) of the Family Law Rules requires that dealing with a case justly includes ensuring that the procedure is fair to all parties.

2. It is admissible evidence in writing that can be filed, not just any evidence.

3. Rule 14(18) of the Family Law Rules requires that the affidavit should contain as much personal knowledge as possible. If from a third party, the source must be identified.

4. Past parenting evidence must be relevant. Issues of relevance, probative value and admissibility are still alive.

5. The affidavit material should set out at the beginning of the affidavit, the reasons for the intervention, why less disruptive steps were not taken, and what has been learned in the investigation to date. The parent's entire life should not be on parade.

6. There should be a respect for the rules of evidence. Supposition, conjecture, speculation, innuendo, gossip, unqualified opinion, where qualified opinion is required have no place in an affidavit.

7. Exhibits should not be used as a substitute for proper evidence.

8. The affidavits should be proportionate. Factual inferences can be drawn from the evidence only if the facts alleged to support the inference are established by the evidence.

[47] Courts have held that consistent hearsay evidence from a number of professionals obliged to keep accurate records may be considered “credible and trustworthy” and be given more weight by the court, particularly where the evidence is recorded by a professional with an obligation to keep accurate, contemporaneous notes. This obligation can mitigate the inherent risks hearsay evidence. See Jewish Child and Family Services of Toronto v. A.K., 2014 ONCJ 227 at para. 7.

Analysis

[48] Having considered all of the evidence, the applicable legislation, and the case law, this court is not satisfied that there are reasonable grounds to believe that there is a risk that the child would suffer harm if returned to his mother, such that cannot be managed through a supervision order.

[49] This court is of the view that the least disruptive placement that is consistent with the child’s best interests at this time, having due regard to the child’s clearly expressed views and preferences, is placement with the mother under terms of supervision, including but not limited to those proposed by the mother’s counsel.

[50] The court makes this determination for the following reasons:

a. In its materials, the society has summarized its primary concerns as relating to the mother’s ability to manage the child “to a degree that he would be able to maintain the progress with respect to his behaviour and growth.” [1] In addition the society expresses concerns about the mother’s lack of engagement with the society, her choice of partners, and ongoing home management issues. b. The evidence supports the conclusion that an important factor in the improvement of the child’s behaviour relates to the child being prescribed Concerta in October 2018. After he was admitted to care in May 2018, there continued to be behavioural issues. Within three weeks of starting the Concerta prescription in October 2018, the foster mother and mother reported a significant difference in the child’s behaviour, and the child’s behaviours at school improved. c. The evidence does not support a conclusion that being in care is more likely to enhance the child’s physical growth than is being cared for by his mother. As seen above, the child lost over 11 pounds between October 2018 and January 2019, while in care; d. The society’s evidence is that the mother’s home is free of hazards given the child’s age; e. While the mother may not have engaged with the society in terms of programming as was recommended to her, her home management and routines have not resulted in the society taking steps in relation to the three other children in her full-time care; f. While the court acknowledges that children have different needs and that this child, in light of his growth issues and behavioural challenges, may have requirements unique from those of his siblings, the evidence does not support a finding that being in care is the cause of the improvements in behaviour, nor, as seen, has being in care improved his growth overall; g. While the mother’s partner M.G. displayed significantly inappropriate behaviour with respect to the child in making the Facebook post referred to above, the mother has been compliant with the requirement that he not reside at the home. While the society articulates concern about this individual, it has extended access to him twice per week for two hours; h. The society has already extended significant access to the mother. As noted above, the access going into the motion included access every weekend from Friday evening to Sunday afternoon and was just about to be expanded further to include every Tuesday overnight to Wednesday. This can only be understood to mean that the society sees the mother as capable of adequate parenting three overnights out of seven. i. The mother is prepared to abide by supervision terms and to have the child transitioned to her care in a measured and incremental manner. j. The mother is agreeable to a transition period, and proposed a transition of eight weeks. This is not an unreasonable proposal. k. The society would retain, as it does in every case, both the right and the obligation to intervene should a protection concern arise during the transition period, or once the child is fully in his mother’s care; l. As noted by her counsel, that the mother can be difficult, demanding, and at times rude with society staff and others – while unpleasant – is not itself a child protection issue or a reason for the child to remain in care.

[51] Based on the foregoing, this court finds that the least disruptive alternative for this child at this time is placement with the mother, under terms of supervision, with such placement being implemented through a transitional period of eight weeks.

[52] This is also the placement that is consistent with the child’s best interests, having regard to the factors set out in section 73 of the Act, including but not limited to the child’s views and preferences.

Conclusion and Order

[53] For all of the reasons set out above, this court makes the following order:

1. Unopposed, on a final basis, the child is not and does not identify as a First Nations, Inuk, or Métis child;

2. On a temporary basis:

a. The child, D.M.L., shall be placed in the care of his mother, A.H., pursuant to the following transitional schedule:

i. During the week of April 1, 2019, an overnight should be added, bringing the total to four overnights per week; ii. During the week of April 15, 2019 a further overnight should be added, bringing the total to five overnights per week; iii. During the week of April 29, 2019, a further overnight should be added, bringing the total to six overnights per week; iv. During the week of May 13, 2019, a further overnight should be added, such that the child is residing with his mother full time; v. The society may accelerate the transition if it deems it appropriate to do so.

b. The following terms of supervision shall apply to the temporary placement of the child with the mother:

i. The mother shall ensure that the child is regularly seen by his physician and regular medical providers, and shall follow their recommendations for the child’s care; ii. The mother shall administer the child’s medications as prescribed by the child’s medical service providers; iii. The mother shall make her best efforts to structure the routines in her home, for the child, in a manner that approximates the routines in the foster home, and the society shall provide the mother with a summary of those routines for that purpose; iv. The access of the other’s partner, M.G., to the child, shall be in the discretion of the society; v. The mother shall follow the treatment recommendations of her physician, including, if recommended, that she engage in individual counselling; vi. If the mother continues to be in a romantic relationship with M.G., she shall follow through on regular couples counselling with him.

Madsen J.

Date: March 25, 2019

[1] Affidavit of Natasha Escott sworn February 14, 2019, Tab 10 of the Continuing Record, at paragraphs 90-93.