ONTARIO SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FO 51/19 DATE: 2019/06/27

B E T W E E N:

The Children’s Aid Society of the Niagara Region Applicant

Ciara McCaffrey, for the Applicant

- and -

C.M.W. R.B. Respondents

Miranda J. Belansky, for the Respondent, C.M.W. Edward F. Kravcik, for the Respondent, R.B.

HEARD AT WELLAND, ONTARIO: June 24, 2019

The Honourable Madam Justice N. Gregson

REASONS FOR DECISION ON TEMPORARY CARE AND CUSTODY HEARING

[1] The Children’s Aid Society of the Niagara Region (hereinafter referred to as the “Society”) brought a protection application requesting there be a finding in need of protection of B.W.-B., born […], 2019 and a final order that he be placed in Interim Society Care for a period of six months. B.W.-B. was removed from his parents care shortly after his birth and brought to a place of safety with a warrant on January 22, 2019.

[2] The first appearance of the protection application which was accompanied by the Society’s notice of motion at Tab 2 of the continuing record was on January 25, 2019. The Society’s motion was granted on this date and a without prejudice temporary order was made at that time having B.W.-B. remain in Society care with access to the parents as arranged by the Society and supervised in its reasonable discretion.

[3] It should be noted the mother is of Métis heritage but is not a member of a specific band. She has participated in programs and cultural events through the Native Centre in Fort Erie, Ontario. They have also provided her with much community and personal support.

[4] At the request of the parents, the Society conducted a kinship assessment of the father’s brother and partner namely, B.B. and S.B.. The assessment was approved by the Society.

[5] Accordingly, the Society brought a notice of motion at Tab 7 of the continuing record seeking to vary the temporary order of January 25, 2019 as per s. 94(2) and 94(9) of the Child, Youth and Family Services Act (hereinafter referred to as the “CYFSA”) to provide that B.W.-B. be placed in the care of B.B. and S.B., subject to the Society’s supervision with various terms and conditions.

[6] Both parents now oppose the placement with the kin and prefer to keep B.W.-B. in foster care, if he cannot be returned to their care.

[7] The mother brought a cross motion at Tab 11 of the continuing record seeking an order to place B.W.-B. in the care of both parents subject to Society supervision although the parents would agree to an order having B.W.-B. placed in the care of the mother only, if required.

Issues to be Determined

[8] Under subsection 94(4) of the CYFSA, the Society must establish, on credible and trustworthy evidence, 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 will suffer harm. Further, the Society must establish that the child cannot be adequately protected by terms and conditions of an interim supervision order to the parents. See Children’s Aid Society of Ottawa v. C.N. (2018) O.J. No. 3719 (Ont. S.C.J.) Audet, J. par. 26 siting Children’s Aid Society of Ottawa-Carleton v. T. (2000) OJ No. 2283 (Ont. S.C.J.) Blishen, J. par. 10.

[9] The court must also consider before making a temporary order for care and custody to have a child remain in the care and custody of the Society whether it is in the child’s best interests to make an order 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 as per section 94(5) of the CYFSA.

[10] Accordingly, I must determine:

1. If the Society has met their onus in proving, on credible and trustworthy evidence, there are reasonable grounds to believe it is more probable than not B.W.-B. will suffer harm if he was returned to either of his parents.
2. If I make such a determination, the Society must establish B.W.-B. cannot be adequately protected by terms and conditions of an interim supervision order.
3. If B.W.-B. cannot be returned to his parents, the court must consider whether it is in B.W.-B.’s best interests to make an order to place him in the care and custody of his extended family, namely B.B. and S.B. which would be subject to Society supervision.

Summary of Affidavit Evidence

[11] At the time of B.W.-B.’s birth the parents, C.M.W. and R.B. were residing together at the paternal grandparents’ home.

[12] The mother has three other children, namely, B.S.W., born […], 2004; B.-L.J.W.-B., born […], 2011 and B.W.-M., born […], 2016. These children are in the Extended Care and Custody of the Society as a result of ongoing concerns with the mother’s substance abuse, domestic violence, transiency, mental health and caregiving capacity. Ms. C.M.W. does not have access to these children although it appears she may have some limited contact with two of the children through an openness order upon their adoption.

[13] It should be noted that in any proceeding under Part V of the CYFSA, the court may consider the past conduct of a person toward any child if that person is caring for or has access to or may care for or have access to a child who is the subject of the proceeding; and any oral or written statement or report that the court considers relevant to the proceeding, including a transcript, exhibit or finding or the reasons for a decision in an earlier civil or criminal proceeding, is admissible into evidence as per section 93(1) of the CYFSA.

[14] According to the Society, throughout their extensive and historical involvement with the mother, she would commence counselling programs; however therapeutic goals were never achieved as she did not participate on a consistent and regular basis.

[15] The father was involved with the Society from 2010 to 2012 with a previous partner and their child as a result of the father’s sobriety issues (use of drugs and alcohol) and domestic conflict within the relationship. The Society had received a referral about the father from the Niagara Regional Police Services in August 2010. The father and his partner were evicted from their apartment on August 28, 2010 as the father had trashed the apartment. Photographs were taken and provided to the Society. The father had also sent some inappropriate threatening text messages to his ex-partner. Police noted the father may be violent when he is drunk. The father admitted to sending the text messages when he was drunk but did not recall doing so. During this same time frame the father was attending the methadone program and was testing positive for drugs. Although he attended addiction residential treatment in January 2011 the following month he was charged with possession of marijuana. In 2012 the child was returned to her mother’s care and the Society closed their file.

[16] It came to the Society’s attention in November 2018 the mother was pregnant with her fourth child. The Society attempted to make contact with the mother thereafter with no success. Contact was finally made on January 9, 2019 and a meeting with the parents and a number of service providers was held on January 11, 2019. The mother advised she did not know she was pregnant until October 2018 and once she learned of same she scheduled pre-natal care. The mother indicated she had used cocaine occasionally prior to February 2018 but had been sober since that time upon meeting the father. The mother denied any conflict in her relationship with the father.

[17] According to the Society, the father stated during the January 11, 2019 meeting he used to use substances in the past but had attended treatment and no longer uses. He admitted to the Society he does consume beer and that a case of beer lasts him about four days. In contrast, the father states in his affidavit material that although he keeps alcoholic beverages in the home, they are mainly for friends (although the police report of September 2018 noted he had been drinking). Since his son’s birth he has only had alcohol on three occasions but only in amounts that are insufficient to impair him (one of which presumably would be before access with his son at the hospital).

[18] The father’s evidence reflected that he attended at the Newport Centre for treatment in 2010. He was also in the local methadone program for Oxycontin but graduated from the program drug free within one year. He also attended for treatment in Calgary in 2015. He has also been working with CASON in St. Catharines on an ongoing basis since 2016 and according to the father, has been sober since that time.

[19] The evidence suggested the mother’s probation officer, Deb Lef reported to the Society in January 2019 the father has problems with alcohol misuse which the mother has admitted to, as well as frequent arguing. Ms. Lef confirmed the father has completed treatment in the past and has periods of sobriety.

[20] Prior to B.W.-B.’s birth, the mother had made a Facebook post on January 10, 2019 which suggested she had no supplies for B.W.-B. and was seeking assistance for same. The mother noted in her evidence she did not learn she was pregnant until she was in her sixth month and was then placed on bed rest and was unable to purchase all of the necessary items. She now states she has a home and all necessary supplies.

[21] B.W.-B. was born on […], 2019 and removed from his parents’ care the following day although B.W.-B. remained in hospital until January 27, 2019. On the early morning of January 23, 2019 a hospital nurse called the Society After Hours to report the parents had engaged in a heated argument while having access with B.W.-B. with a Code White being called. The father was removed from the hospital by security.

[22] On January 27, 2019 the Society received a call from RN Marnie from the Niagara Health System. She reported B.W.-B. would be discharged from the hospital that day. She indicated the day prior the parents were visiting B.W.-B. and when they left, hospital staff observed a beer can in the nursery trash can. Marnie advised nursing staff had witnessed the father passed out asleep in the child’s room and the mother reported the father had a long stressful day and had a few drinks. When this information was reviewed with the mother the following day, the mother denied telling the nurse the father had been consuming alcohol indicating she had no idea he was doing so. In speaking with the father he conceded he had two drinks prior to access and had a beer can in his pocket but did not drink it and dumped the contents in the garbage.

[23] On March 21, 2019, the Society received B.W.-B.’s birth records and they revealed he had tested positive at birth for methamphetamine. When this was raised with the mother on March 27, 2019, the mother felt it was a false positive as she had taken ibuprofen during her pregnancy.

[24] The access for the parents was moved from the Society’s office to the EarlyON Centre at the Native Centre in Fort Erie on April 8, 2019. Child protection worker T. Williams stopped in on April 10 to observe the access. The parents began to argue about the kinship placement. The mother began to swear at the father and told him to shut up in front of B.W.-B.. The father left the Centre. The following day the mother sent Ms. Williams a message to state she would probably no longer be residing with the father as his mother had told her to pack her bags due to the incident and that both she and the father are not in agreement with the kinship plan.

[25] On April 12, 2019 the father texted Ms. Williams to state he had been attacked by the mother. Ms. Williams spoke with the father and he told her the mother had spit in his face. His mother called the police and the mother left the premises to attend access. Ms. Williams met the mother and she denied the events. As a result of the conflict, the Society moved the visits back to the Agency.

[26] Ms. Williams met with the parents on April 17, 2019 to review the ongoing conflict. The parents minimized same stating the conflict was from the stress from the Society. The decision was made to move some of the access back to the Native Centre and increase the access to three hours Monday, Wednesday and Friday with the Friday visit being at the Society’s office.

[27] On April 26, 2019 the mother was to start the Mothers in Mind group however as she missed three sessions she was cancelled from the group.

[28] On April 29, 2019, Mr. R.B. reported to Ms. Williams the father had told him he had been assaulted by the mother and as a result his brother hit her in the face causing a black eye. Ms. Williams observed the black eye but the mother denied any conflict stating she was elbowed at a concert.

[29] On May 8, 2019, the Society received a police report dated from September 1, 2018 outlining conflict between the parents which was well prior to the Society’s involvement.

[30] On May 31, 2019, Ms. Hill from the Native Centre reported to Ms. Williams the mother had missed her last two appointments with her.

[31] The mother acknowledged that she has issues with the criminal justice system including breaching no contact orders. She is currently charged with Dangerous Driving Causing Bodily Harm; Failure to Remain Knowing Bodily Harm was caused; Breach of Probation and Theft Under $5,000.00. The mother is also under a number of court ordered conditions from two separate probation orders for past offences.

[32] According to the mother, her criminal legal counsel has advised her that her offences involving a car accident are triable issues. Her Breach of Probation was for failure to complete counselling programs however she believes this charge will be withdrawn. Her theft charge was as a result of her taking wood from a construction site but she believed the wood had been discarded. The mother is participating in the Three Fires Community Justice Program through the Native Centre regarding her criminal charges. A plan of care was created for her which included:

a. Speaking to and seeing the Native Centre bi-weekly; b. Continuing to attend CASON counselling c. Contacting aboriginal counselling services; d. Write a letter to herself regarding prior trauma; e. Write a letter of apology to Mountainview Homes; and f. Attend Wednesday night drum circles at least three times.

[33] Currently the father is residing partly at his parents’ home in Fort Erie. The mother was staying with a mutual friend and she has now taken over the lease for a three bedroom home. The father spends most of his free time at this residence.

[34] Both parents noted they have commenced joint family counselling at the South Niagara Life Ministries with Chris Polegato and attend weekly sessions as of March 2019. However a letter from Chris Polegato dated May 17, 2019 suggested that couples counselling only began as of that date and they would require at least 12 sessions.

[35] The father indicated he enrolled in the “Daddy and Me” parenting program starting in late May 2010 and both he and the mother have completed the “A Better Choice” Parenting Program and Magic 1-2-3.

[36] The father appears to have a criminal record however no information was provided in this regard save and except for one charge in 2016. The father states that he was “essentially breaking into my own residence”. He noted he had returned home late and was locked out and had no keys. He broke the front door to gain access to his residence. His partner believed a stranger was breaking in and called the police. The father indicated he does not remember the exact charge (further affidavit material states he was charged with Forcible Confinement) and pled guilty to the charge. As a result, he paid a fine and completed the PAR program. The PAR program is suggestive of some domestic conflict/violence.

[37] The mother confirmed she began drug counselling through CASON with Devon Noxel as of February 2019 to maintain her sobriety and focus on relapse prevention. A letter dated May 17, 2019 was provided by Mr. Noxel. It appears the mother has only had two individual counselling sessions thus far. I believe as of May 17, 2019 the father had also only attended for two sessions as well.

[38] The mother reported she also attends drop-in counseling at the Canadian Mental Health Association, as needed. She also hopes to begin trauma counselling through the Family Counselling Centre to address historical trauma in her past.

[39] The mother is also participating in the Healthy Babies Program at the Native Centre with her worker Bev Hill although Ms. Hill indicated the mother had missed two recent appointments.

[40] There was no evidence provided by the Society which suggested the parents were not appropriate caregivers during their access visits. There was no evidence that either parent attended any visits under the influence of substances.

Kinship Assessment

[41] It appears Mr. B.B. and Ms. S.B. are parents to two young children. They were approached by the parents to present themselves to provide a kinship plan.

[42] Mr. B.B. was charged with driving while impaired in 1999 and with possession of marijuana for the purpose of trafficking in 2005. He was sentenced to nine weekends in jail and placed on probation.

[43] The couple was involved with the Society from March 2015 to April 2016 due to domestic conflict after drinking alcohol. The couple indicated they began drinking alcohol early in the day as they were celebrating. They had a disagreement and Mr. B.B. put his hand through a glass window of a door. The children were home at the time and Ms. S.B. called her father to get the children and called police. Mr. B.B. was asked to leave the home. The couple worked with the Society for about one year as the Society had concerns regarding their alcohol use. During this time frame, the couple lived apart for about six months and attended both individual and couples counselling. They noted they now had insight into their alcohol use and are able to control their drinking and they only drink socially when their children are not in their care.

[44] The home environment was deemed as appropriate and safe. Both of them work and will require child care for B.W.-B..

[45] Access for them began on March 18, 2019 and overnight visits began taking place after no concerns were observed. Visits were reduced to daytime only once the Society received concerns from the parents. However, after the Society met with the kin to investigate the concerns, overnight access was recently reinstated.

[46] In particular, the parents raised concerns vis-à-vis Mr. B.B. and Ms. S.B.’s alcohol consumption, Mr. B.B.’s anger issues and conflict between Mr. B.B. and Ms. S.B.. The mother, in particular, is also worried about a series of text messages which Mr. B.B. sent to the father about her. She feels the kin would not promote a future reunification between her and B.W.-B. as a result. The text messages which were supplied were vulgar, derogatory and even threatening.

Analysis

[47] I agree with the Society the parents have begun connecting and accessing services however their degree of participation in same so far is not to the level that it would be sufficient to mitigate the protection concerns. The following in my view are protection concerns which remain unaddressed:

1. The mother’s historical past parenting of three other children (The mother has only commenced addressing the protection concerns as of February 2019);
2. The parents chronic past substance abuse issues. (The mother has not attended any formal treatment and both parents are just commencing counselling. There is evidence the mother may have used drugs during her pregnancy);
3. The father’s ongoing use of alcohol despite the fact this has been an ongoing issue for him for years;
4. The conflict between the couple which is problematic. There are allegations of past domestic violence with both parents regarding prior partners;
5. The mother’s pattern of criminality and breaches of court orders;
6. Services are just getting underway;
7. Cancellations of appointments with service providers (ie. Mother’s in Mind and Ms. Bev Hill); and
8. The parents’ clear lack of insight into the protection issues and lack of ownership and responsibility of their actions (often blaming others).

[48] I have come to the conclusion B.W.-B. would be at risk of harm if he was returned to either of the parents. I do not believe B.W.-B. would be adequately protected by terms and conditions of a supervision order.

[49] I have also considered the plan to place B.W.-B. with family members as approved by the Society. Generally, it is the court’s position to always place a child with family if possible, rather than having a child placed in foster care especially if a kin assessment is approved by the Society.

[50] However in this particular circumstance, both parents are opposed to the placement with Mr. B.B. and Ms. S.B.. There are allegations of alcohol consumption and conflict between the couple which were in fact verified by the Society three years ago. I have no way of knowing whether these are ongoing concerns but I am not willing to gamble the safety of a young and vulnerable child. Regardless, what I find more troubling are the text messages sent by Mr. B.B. to his brother which were vulgar and mean-spirited in particular regarding the mother. It appears Mr. B.B. is quite invested in the “family situation” and has a hatred towards the mother. A temporary placement for B.W.-B. is still with the view of a possible reunification with one or both of his parents. This requires a conducive, positive and supportive environment in this regard for B.W.-B.. It does not appear this can take place in the home of Mr. B.B. and I believe it would be a recipe for disaster. The family dynamics are wholly dysfunctional.

[51] Bearing in mind the wishes of the parents, the concerns raised by both parents against the kin, the neutrality of the foster home, the child’s overall best interests and the paramount purpose of the CYFSA, I have come to the conclusion B.W.-B. should not be placed with Mr. B.B. and Ms. S.B.. Although they are prepared to agree to a supervision order with terms and conditions, considering they cannot be monitored on a 24/7 basis and the abhorrent messages about the mother, I am not satisfied the supervision order would ensure B.W.-B.’s emotional well-being and safety. The least intrusive order is to have B.W.-B. remain in his current placement where his needs are being met while his parents address the protection concerns.

Order

[52] Order

1. The motions at Tab 7 and 11 are hereby dismissed.
2. The without prejudice temporary order made on January 25, 2019 placing B.W.-B. in care shall continue on a temporary basis.

N. GREGSON, J. Released: June 27, 2019