Court File and Parties

COURT FILE NO.: FC-19-FO2 DATE: 2019 07 31

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 (7) Order excluding media representatives or prohibiting publication. — Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding, the court may make an order,

(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: The Children’s Aid Society of the Regional Municipality of Waterloo, Applicant

AND:

N.K., Respondent P.L., Respondent

BEFORE: The Honourable Madam Justice D. Piccoli

COUNSEL: Dianne Sousa, for the Applicant Walter Wintar, for the Respondent N.K. (mother) Grant Schafer, for the Respondent P.L. (father) Jean LeDrew-Metcalfe, for the child M.T. Jennifer Bolduc, for the children C.P and G.Z.

HEARD: July 17, 2019

THE HONOURABLE MADAM JUSTICE D.M. PICCOLI

DECISION ON TEMPORARY CARE AND CUSTODY MOTION

Introduction

[1] This is a temporary care and custody motion pursuant to section 94(2)(d) and (b) of the Child, Youth and Family Services Act (“CYFSA”).

[2] The Respondent mother and father are the biological parents of three children, M.T., C.P. and G.Z.

[3] The Children’s Aid Society of the Regional Municipality of Waterloo (the “Society”) seeks a temporary order placing the children C.P. (age 11) and G.Z. (age 9) with their mother and M.T. (age 13) with his father subject to the supervision of the Society, pending final disposition of the child protection application, on the terms and conditions set out in the Notices of Motion found at Volume 1, Tab 2, (with respect to the children C.P. and G.Z.) and Volume 1, Tab 11, (with respect to the child M. T) of the Continuing Record.

[4] The mother objects to the placement of M.T. with his father and seeks a temporary order placing all three children with her.

[5] The father objects to the placement of all three children with the mother and seeks a temporary order placing all three children with him.

[6] The Society became involved with this family in early January 2019, after a referral from Women’s Crisis Services of Waterloo Region.

[7] The Society commenced a Child Protection Application on January 14, 2019, due to the children’s exposure to adult conflict and domestic violence in the home.

[8] The subject children were brought to a place of safety on January 9, 2019. The Society initiated a protection application seeking to place all three children with the mother. The hearing following the children being brought to a place of safety was held January 15, 2019. An interim without prejudice order was made on that day by Justice Hardman. This order places all three children in the care of their mother subject to the supervision of the Society. The matter was adjourned to the first appearance of the protection application on February 19, 2019.

[9] On February 19, 2019, the matter was adjourned to April 16, 2019, for a motion for records disclosure.

[10] On March 18, 2019, M.T. told the Society Worker that he would not return to his mother’s care. The Society prepared a motion to place M.T. with his father returnable on April 16, 2019, but did not serve it in time and it was not properly before the Court. No order was made that day and the Society re-served the motion, first returnable May 14, 2019.

[11] On May 14, 2019, no order was made and the motion was adjourned to June 4, 2019. The Court was also advised that separate OCL counsel would be appointed for M.T. The original OCL would continue to represent the children C.P. and G.Z.

[12] On June 4, 2019, the hearing for temporary care and custody was set to the long motion list for the week of July 2, 2019. This motion was argued on July 17, 2019.

Background

[13] The Respondent father (“father”) came to Canada from Bangladesh in 2012 and remained in Canada.

[14] The Respondent mother (“mother”) and children arrived in Canada from Bangladesh on June 4, 2018, to reunite with the Applicant father; according to the mother it was under the sponsorship of the father.

[15] The relationship between the mother and father was tumultuous.

[16] All three children reported conflict and physical violence between the parents.

[17] The children were removed to a place of safety on January 9, 2019, and placed with the mother and resided at Anselma House. Anselma House is a local shelter for women who have experienced domestic violence. Residency at this shelter is normally limited to eight weeks.

[18] The father refused to leave the family home in January 2019, to allow the mother and children to return home. The mother resided at Anselma House under multiple extensions and was given an ultimate discharge date of June 15, 2019, due to lack of progress with respect to obtaining housing. The mother self-discharged herself and returned to the family home on May 22, 2019.

[19] The Society was not advised in advance that the mother intended on returning to the family home. The father claims that he was unaware that the mother would be returning. The mother claims that she had discussed this with the father at least a few days in advance of her return.

[20] At the time of the hearing of this motion the children reside in the family home and the mother and father are moving in and out of the home, such that the mother resides in the family home from approximately 2 p.m. until 9-10 p.m. during the week and the father resides at the family home during all other times.

[21] The father advised the Court that he has secured alternate accommodation. The mother has indicated she will assume the lease with respect to the family home.

[22] All parties agree that a supervision order is required.

Position of the Society

[23] The Society continues to support placement of C.P. and G.Z. with the mother and placement of M.T. only with the father. The Society does not support the parents being together in the presence of the children. The Society notes that the parents’ respective positions regarding their relationship do not appear to be mutual and this raises concern over continuing conflict and potential violence in the presence of the children.

[24] The Society has noted a number of concerns with respect to both parents with include:

(a) the parents lack of communication with the Society; (b) both parents are uncooperative with the Society’s recommendations; (c) neither parent has taken responsibility for his or her actions; (d) both parents downplay the physical violence in the relationship and its impact on the children; (e) neither parent is focused on the children’s interests; and (f) their breach of the order of Justice Hardman

[25] The Society indicates that it is making every effort to avoid having to apprehend the children from their parent’s care. It is mindful that these children have only been in Canada for approximately a year and have been primarily cared for by the mother. The Society is also mindful of M.T.’s clear and consistent expression of his views and preferences.

[26] With respect to the children C.P. and G.Z., the Society notes their consistent views and preferences to be with their mother, that for the time period 2012 to 2018 they lived with their mother in Bangladesh and during that time she was the sole caregiver and that their contact with their father was sporadic. Furthermore, as stated above the mother and children have been in Canada for a short time.

[27] In terms of the father’s plan to have all three children, the Society is concerned about the father’s inability to manage all three children. The father has not put forward a reasonable plan with regards to managing all the children given, among other things, that he works every day from 2 p.m. to 11 p.m.

[28] The father has proposed an alternate caregiver who, when he moves to his next address, will reside across the hall from him. The Society has not had an opportunity to determine the suitability of that alternate caregiver.

[29] The Society is concerned that the family has been breaching the current Court order which is in place. While the evidence indicates that the mother placed the father in a difficult position, the father has disengaged and has been resistant to effective safety planning.

[30] The Society is further concerned that there has been no effective supervision order in place for M.T. since he began refusing to return to his mother’s care.

[31] The Society notes that there has been no progress regarding the underlying protection concerns which resulted in this Court application and fresh concerns have emerged with respect to the mother’s mental stability and each of the parent’s transparency and sincerity with the Society.

The Position of the Mother

[32] The mother states that after the father began residing in Canada in or about 2012, she was solely responsible for caring for the children in Bangladesh. She made sure that they had a home to live in, food and clothing, and that they went to school to get an education as well as having a religious upbringing.

[33] The mother states that from the time the father moved to Canada in 2012 until June 4, 2018, when the family was reunited in Canada, the type of contact that the father had with the children was generally through telephone calls which she states were rare - maybe three to four times per year.

[34] The mother states that her bond with the children is much stronger than that of the father. She states that the children and their father have needed to get used to each other. She indicates that the father was violent towards her in the presence of the children. She also states that the father had many girlfriends both before and after she and the children moved to Canada. Despite all of this, she states that her goal is to reunite the family. She is prepared to engage in couples counselling.

[35] The mother states that although it is her desire that M.T. live with her, if an order is made that M.T. reside with her, she will not seek to enforce that order. Essentially, she acknowledges that M.T. has made his choice by living with his father.

[36] The mother denies any mental health issues.

The Position of the Father

[37] The father states that the reason why the children should all reside with him subject to a supervision order is because the mother does not appreciate the risk in respect to the children’s ongoing exposure to domestic violence. The father states that he understands the risks better.

[38] The father states that the mother is adamant that reconciliation occur no matter what the situation.

[39] The father states that the mother lacks insight in that she has put M.T. in the middle of the dispute and has on different occasions prohibited each child from speaking to their respective worker.

[40] The father states that on balance, he is the better parent to work with the Society.

[41] The father acknowledges that there is no evidence that either of C.P. nor G.Z.’s wishes are not independently expressed.

[42] The father denies the extent of the physical abuse as stated by the mother. He does admit to pushing her and grabbing her by the back of the neck. He admits to threatening to throw her off the balcony but denies dragging her to the door.

Physical Discipline

[43] Both parents acknowledge they have physically disciplined the children in the past.

Specified Access

[44] The Society expressed its frustration that despite request, the parents have not been cooperative in arranging access between the children and the parent who does not have primary care of the children. For these reasons, the parents were asked to make specific submissions regarding an access schedule based on three different possible outcomes of this motion: 1. that all three children reside with the mother; 2. that all three children reside with the father; and 3. that M.T. resides with his father and that C.P. and G.Z reside with their mother.

[45] The set schedule below is therefore with the consent of the parents given the disposition of the motion and shall always be subject to the discretion of the Society. Both OCL’s have asked that the order be subject to the wishes of the children. The Society has asked that in reference to M.T. the order be subject to his wishes.

[46] In closing submissions and with respect to the provision of a specific schedule, the mother instructed her lawyer to advise the Court that it was still her desire to be present during C.P. and G.Z.’s access to their father. The Court declines to make such an order and observes that this request by the mother is illustrative of the fact that she fails to understand the underlying protection concerns and risk of harm caused to the children by their exposure to parental conflict.

Views and preferences of M.T. and position of OCL for M.T.

[47] M.T.’s lawyer was steadfast that M.T.’s views and preferences are consistent and that there is no evidence that he is being manipulated. M.T. wishes to live with his father. In fact, despite the interim without prejudice order of Hardman J, dated January 15, 2019, M.T. has resided with his father since mid-March, 2019.

[48] M.T.’s views and preferences have been clearly expressed to third parties on January 30, 2019, February 5, 2019, February 14, 2019, and to the Office of the Children’s Lawyer on February 16, 2019, April 14, 2019, June 12, 2019, and June 21, 2019.

[49] M.T. has threatened self-harm and has indicated that if he is not granted his wish to reside with his father that he may run away or live somewhere else. [Vol. 12 para 15 of the affidavit of J. Hood].

[50] The mother’s response to M.T.’s threats of self-harm and his wishes, (including calling him a liar, spoiled, etc.), show that she is not able to address his emotional needs.

[51] M.T.’s lawyer notes that it is clear that neither parent in either home is perfect but that M.T.’s views and preferences should be respected.

Views and preferences of C.P. and G.Z.

[52] The lawyer for C.P. and G.Z made it clear that both of these children wish to remain in the care of their mother.

[53] The views and preferences of C.P. and G.Z differ in terms of their desire to spend time with their father or their brother.

[54] C.P has indicated she is not concerned about seeing either P.L. or M.T. She sees M.T. at school and currently at home during the housing transfer. She blamed M.T. for a majority of her mother’s alleged issues.

[55] G.Z. would like to see both M.T. and his father sometimes, however for short visits only and with no overnights. G.Z. wants to be able to play with M.T. and would like either visits at his father’s home, the shopping mall or the beach. G.Z. misses his brother and wants fixed access.

[56] Neither C.P. nor G.Z. want to have overnight access with their father.

[57] Neither C.P. nor G.Z. have expressed any fear of either parent.

Legal Consideration on Temporary Care and Custody Motion

[58] Although counsel on behalf of the father disputed the test that applies to the hearing for the temporary care and custody order, the test is in fact pursuant to sections 94(2), (4) and (5) of the CYFSA. This is reiterated in the recent judgment of Catholic CAS of Toronto and V.O. and C.V., 2019 ONCJ 377.

[100] The legal test for a temporary care and custody motion is set out in subsections 94 (2), (4) and (5) of the Child, Youth and Family Services Act (CYFSA) that read as follows:

94 (2) 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.

[59] Both parents seek placement of all three children in their respective care on a temporary basis under terms of supervision. There is no dispute among the parties that there is a reasonable basis to believe that the children are at risk of harm and that a supervision order is required. The real dispute is to which of the plans are adequate to address the protection concerns on a temporary basis.

Catholic CAS of Toronto and V.O. and C.V., supra

Wishes of the Child

[101] Before making an order, the court must also take into consideration the child’s views and wishes, given due weight in accordance with the child’s age and maturity pursuant to subsection 94 (11) CYFSA, unless they cannot be ascertained.

[60] The views and preferences of all 3 children have been clearly expressed and stated and there is no evidence to indicate that those views and preferences are not being independently expressed.

[61] In terms of M.T. he is 13 years of age, mature and has already spoken “with his feet”. Even though the mother seeks that M.T. be in her care, she acknowledges that she will not disrupt the de facto arrangement.

[62] In terms of C.P. and G.Z they too are consistent in their desire to reside with their mother. Their views and preferences differ in terms of the time each wishes to spend with M.T. and their father. In terms of C.P. and her comment that she can see her brother M.T. at school – this will no longer be the case as M.T will be starting high school.

Findings and Conclusion

[63] The society attempted to safety plan with both parents, however, both parents were resistive and provided reasons as to why they would either, in the father’s case – leave the family home, or in the mother’s case – return to the family home.

[64] Both parents lack insight into the impact their actions have on their three children. They have not co-operated in doing what is necessary and best for the children, whether it be reaching agreement on who is to reside in the family home, recognizing M.T.s need for counselling or refraining from volatile behavior in the presence of the children.

[65] The family has been breaching the current Court order. While the evidence indicates that the mother placed the father in a difficult position, the father has disengaged and has been resistant to effective safety planning.

[66] The Society believes the mother has mental health issues. Whether or not she does can only be ascertained by a mental health professional. Accordingly, certain of the stipulations the Society seeks in its Notice of Motion have been amended in that regard.

[67] The mother clearly lacks insight into how her fixation on reconciling with the father when he clearly does not wish to do so will impact her children given the high degree of adult conflict. She also interferes with the children’s relationship with their father.

[68] The father is inflexible and seems unwilling to address the concerns raised by the Society as they pertain to him. He has not readily accepted the role he has played in the conflict and has not addressed the issue of anger he has against the mother.

[69] It is clear, that despite the efforts of the Society, neither parent is working well with the Society to arrange a specific access schedule and accordingly, one is going to be imposed in this order and is on consent as referenced in above, but is subject to the supervision of the Society.

[70] The views and preferences of all three children have clearly been ascertained and there is no evidence to suggest that these views and preferences are other than independent. These views and preferences are being given weight given the ages of the children and the fact that the mother has been their primary care giver since birth and that M.T. has spoken with “his feet”. Although the mother is not consenting to the order placing him with the father she acknowledges that he is living with his father and even if the current order were maintained she would not be forcing him to return. The Society needs to plan for M.T. and the reality of the situation needs to be accepted.

[71] This Court wishes to make it clear to the parents that it is incumbent on each of them to work with the Society (to be open and co-operate with the Society) and follow through with the recommendations of the society and obtain the services required.

[72] At this time, the children can be protected by orders of supervision as are made herein. The least intrusive and least disruptive placement at this time is the placement of C.P. and G.Z. with the mother and the placement of M.T. with the father.

There will be an order as follows:

[73] With respect to the child M.T., there will be a temporary order as follows:

The child M.T., born December 17, 2005, shall be placed in the care and custody of his father P.L., subject to the supervision of The Children’s Aid Society of the Regional Municipality of Waterloo (“the CAS) on the following terms and conditions: a. N.K. and P.L. will cooperate with the CAS; b. N.K. and P.L. will allow a worker from the CAS to have access to their home and to the children at home and at school on both a scheduled and unscheduled basis; c. N.K. and P.L. will meet with a worker from the CAS at the home, agency and/or community as requested by the worker; d. N.K. and P.L. will sign consents to release information to allow the CAS to communicate with service providers and vice versa; e. N.K. and P.L. will advise the CAS in advance of any change in address and/or telephone number; f. N.K. and P.L. will refrain from any form or verbal of physical abuse or violence toward one another or the children; g. N.K. and P.L. will refrain from contact with one another in the presence of the children unless previously arranged with the CAS; h. N.K. will attend an appointment with a physician to discuss mental health symptoms and will follow all recommendations (if any) for further assessment and/or treatment; i. N.K. will attend all scheduled appointments with her mental health practitioner if such a practitioner is recommended; j. N.K. will follow the plan (if any) outlined by her mental health practitioner to address her mental health concerns if there are any; k. P.L. will ensure that M.T. is appropriately supervised at all times and that all alternate childcare providers are approved, in advance, by the CAS; l. P.L. and N.K. will ensure that M.T. attend the Child Witness Protection Program or another counselling agency as approved by the CAS; m. P.L. will reside apart from N.K. C.P. and G.Z; n. P.L. will ensure that N.K. has no unauthorized access to M.T. and will contact the CAS and Police Services immediately if she attempts to do so; o. On consent as requested by OCL, N.K. and P.L. will allow the OCL to meet privately with the child M.T. at home, in the community and/or at school on a scheduled and unscheduled basis and N.K. and P.L. will refrain from discussing and/or, asking the child M.T. directly, about anything pertaining to this litigation, his views and preferences or what he has discussed with his lawyer; and p. On consent as requested by the OCL for the Children C.P. and G.Z., N.K. and P.L. will refrain from making the court documents available to C.P. and/or G.Z. whether directly or indirectly, discussing and/or asking C.P. or G.Z. directly or indirectly about anything pertaining to this litigation, about their views and preferences, or what they have discussed with their lawyer.
On a temporary basis, there be a right of access to M.T. by N.K. at the discretion of the CAS and supervised as deemed necessary by the CAS which unless CAS determines otherwise will include at least one weekday per week from 2 p.m. to 9 p.m.

[74] With respect to the children C.P. and G.Z., there will be a temporary order as follows:

The children C.P. (born August 31, 2007) and G.Z. (born September 1, 2009) shall be placed in the care and custody of N.K. subject to the supervision of the Children’s Aid Society (“CAS”) of the Regional Municipality of Waterloo on the following terms and conditions: a. N.K. and P.L. will cooperate with the CAS; b. N.K. and P.L. will allow a worker from the CAS to have access to the home and to the children at home and at school on both a scheduled and unscheduled basis; c. N.K. and P.L. will meet with a worker from the CAS at the home, agency, and/or community as requested by the worker; d. N.K. and P.L. will sign consents to release information to allow the CAS to communicate with service providers and vice versa; e. N.K. and P.L. will advise the CAS in advance of any change in address and/or telephone number; f. P.L. will reside apart from N.K., C.P. and G.Z; g. N.K. will ensure that P.L. has no unauthorized access to C.P. and G.Z. and will contact the CAS immediately if he attempts to do so; h. N.K. and P.L. will refrain from any form of verbal or physical abuse or violence toward one another or the children; i. N.K. and P.L. will refrain from contact with one another in the presence of the children unless previously arranged with the CAS; j. N.K. will attend and successfully complete individual and/or group counselling for victims of domestic violence, to learn about power imbalance, the abuse of power in relationships, and the impact exposure to domestic violence has on children at an Agency approved by the CAS and will follow through with treatment recommendations offered by the service provider; k. P.L. will attend and successfully complete individual and/or group counselling for individuals who have perpetuated acts of domestic violence within the family unit to learn about power imbalance, the abuse of power in relationships and the impact exposure to domestic violence has on children, at an Agency approved by the CAS, and will follow through with treatment recommendations offered by the service provider; l. N.K. will attend and successfully complete individual and/or group parenting counselling, at an Agency approved by the CAS; m. P.L. to attend and participate in an Intake Interview for Caring Dads, or a similar program, follow recommendations, and participate in Caring Dads, or a similar program, if accepted to address the following issues; i. Increase awareness of child-centered fathering. ii. Increase awareness of and responsibility for abusive, neglectful fathering behaviors and their impact on children. iii. Develop skills and knowledge to improve relationships with his children and the children’s mother. n. N.K. and P.L. will ensure that the children C.P. and G.Z attend counselling with regard to witnessing domestic violence in the home and healthy problem solving skills, at an Agency approved by the CAS, and will follow through with treatment recommendations offered by the service provider; o. On consent as requested by OCL, N.K. and P.L. will allow the OCL to meet privately with the children C.P. and G.Z. at home, in the community and/or at school on a scheduled and unscheduled basis and N.K. and P.L. will refrain from discussing and/or, asking the children C.P. and G.Z. directly, about anything pertaining to this litigation, their views and preferences or what they has discussed with their lawyer; and p. On consent as requested by the OCL for the Children C.P. and G.Z., N.K. and P.L. will refrain from making the court documents available to C.P. and/or G.Z. whether directly or indirectly, discussing and/or asking C.P. or G.Z. directly or indirectly about anything pertaining to this litigation, about their views and preferences, or what they have discussed with their lawyer.
On a temporary basis, there be a right of access to C.P. and G.Z. by P.L. at the discretion of the CAS and supervised as deemed necessary by the CAS which unless the society determines otherwise will be each Saturday and Sunday from 3:30-7:00p.m. and M.T will be present during this access.

[75] Any breach of this order may be brought to my immediate attention and may result in some or all of the children being removed from that respective parents care.

D. Piccoli J

Released: July 31, 2019

COURT FILE NO.: FC-19-FO2 DATE: 2019 07 31

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: The Children’s Aid Society of the Regional Municipality of Waterloo Applicant and – N.K. et al Respondents

DECISION ON TEMPORARY CARE AND CUSTODY MOTION