WARNING

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

87(8) Prohibition re identifying child — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.

(9) Prohibition re identifying person charged — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

142(3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Court File and Parties

COURT FILE NO.: FC-19-00000035 DATE: 2019-08-01 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Children and Family Services for York Region, Applicant AND: S.P. and M.B., Respondents

BEFORE: The Honourable Mr. Justice R.E. Charney

COUNSEL: F. Christopher Rous, for the Applicant C. Lauer, for the Respondent, S.P. J. Gillespie, for the Respondent, M.B.

HEARD: July 25, 2019

Endorsement

Introduction

[1] The Children and Family Services for York Region (CFS) seeks a temporary, without prejudice order that the children, L. (d.o.b. 2014) and A. (d.o.b. 2012) be placed in the care of their maternal grandparents, Ms. A. and Mr. P., subject to supervision by the CFS. Access to the parents, Ms. P. and Mr. B., shall be supervised by Ms. A. and Mr. P., and at the discretion of the CFS with respect to location, duration and level of supervision.

[2] The motion is opposed by the Respondent mother, Ms. P., who takes the position that the children should be returned to her on a temporary basis, subject to the supervision of the CFS.

[3] The Respondent father, Mr. B., concurs with the proposal of the CFS.

Facts

[4] A. and L. are currently residing with their maternal grandmother, and have been since May 3, 2019. This matter was originally scheduled for May 17, 2019, and was adjourned on consent to June 20, 2019. It was adjourned again on June 20, 2019, with a temporary, without prejudice order that the children remain in the custody of the maternal grandparents with access to the Respondent mother and the Respondent father at the CFS’ discretion. The June 20, 2019 Order specifically provides that Ms. P.’s access on Tuesdays and Thursdays for 1.5 hours each day be unsupervised and at Ms. P.’s home.

[5] The CFS has had ongoing involvement with the family since 2016. The CFS states that the parents both struggle with depression and anxiety, and this has resulted in the children being exposed to adult conflict. The concerns resulted in the creation of a safety plan on May 3, 3019 whereby the mother agreed to have the maternal grandmother care for the children. As of May 13, 2019, the mother advised that she no longer agreed to the plan and wanted her children returned.

[6] The CFS has provided an affidavit from a Child Protection Worker setting out the history of CFS involvement with the family. The CFS’ current involvement commenced on December 22, 2016 when York Region Police (YRP) contacted the CFS to report that Ms. P. called the police after Mr. B. had used a kitchen knife to superficially cut himself during an argument. The younger daughter was home during this incident. Mr. B. was apprehended under the Mental Health Act and transported to the hospital. He was later sent home.

[7] The CFS investigated, and was informed by Ms. P. that she suffers from depression and anxiety and sees a psychologist on a regular basis and a psychiatrist who manages her medication. The CFS learned that the couple had frequent conflict that was witnessed by their children.

[8] The maternal grandmother was present during this interview and informed the CFS that she attended the home daily for up to eight hours to provide support for the parents in caring for the children. She informed the CFS that she believed her daughter was a good mother but she often needed reminders to feed the children or change the younger daughter’s diaper. The maternal grandparents lived down the street and would be willing to remove the children in future incidents of conflict and agreed to call the police if conflict escalated. Based on these assurances, the CFS concluded that the children were not in need of immediate safety intervention.

[9] In January 2017 the CFS learned that there was a dispute between Ms. P. and Mr. B. in which Ms. P. had grabbed Mr. B.’s phone and poured a drink over his computer. Ms. P. was charged with two counts of assault following this incident, although the charges were subsequently dropped. A no-contact order was put in place between Ms. P. and Mr. B.

[10] Mr. B. subsequently moved out of the home to live with his parents. The maternal grandmother moved into the house to help Ms. P. care for the children. This arrangement was suitable to the CFS.

[11] The CFS followed up with Ms. P.’s psychologist, who confirmed that Ms. P. was taking medication for her mental health and was compliant with recommendations made.

[12] At the end of January 2017, the maternal grandmother reported to the CFS that she had repeated conflict with Ms. P., and that Ms. P. “would be fine one minute and then go lashing out at everyone in the next minute”.

[13] The CFS indicates that the family experienced some stability following the January 2017 incident, and the no-contact order was lifted.

[14] The CFS spoke to Ms. P.’s psychologist, who indicated that she had no concerns regarding Ms. P. caring for the children and that Ms. P. was working hard to be able to parent independently.

[15] By late summer 2017, the CFS relaxed some of its expectations around supervision such that the maternal grandmother was no longer required to live in the home, although she would check in every evening and be present during Mr. B.’s access with the children at the home.

[16] Mr. B. moved back into the matrimonial home in 2018. In July 2018, the CFS received a call from the York Regional Police to report that Ms. P. called the police following an argument she had with Mr. B. No charges were laid. The children were not present at the time.

[17] The 2018 argument related to Ms. P.’s belief that Mr. B. had taken some of Ms. P.’s money and medical marijuana. Following the argument, Mr. B. moved back with his mother. He has not lived in the home since July 2018.

[18] The CFS worker spoke to the children, who confirmed that they had seen their parents argue but that they were not worried.

[19] The family members were in agreement that a safety plan was needed and agreed that the parents were not to reside at the same home and Mr. B.’s contact with the children would be supervised by the maternal or paternal grandparents.

[20] The CFS worker continued to receive reports from family members that the children were being exposed to ongoing conflict and that Ms. P. was unable to manage the children. The CFS worker held a meeting with the family members on December 12, 2018, where they reviewed their concern that the children continued to be exposed to conflict, and Mr. B.’s marijuana use would impact on his ability to care for the children.

[21] During the month of February 2019, the CFS received calls from both Ms. P. and the YRP regarding concerns that Ms. P. had for Mr. B.’s well-being. Ms. P. was concerned that Mr. B. was presenting as withdrawn and anxious, a description that was confirmed by the CFS worker at a meeting with the family on February 21, 2019. The CFS worker reported that Mr. B.’s stress level was fairly high and that when he was agitated he tended to shut down when with the children.

[22] The CFS worker met privately with both children and reported that neither child reported any concerns with respect to their home life.

[23] The CFS worker attended another home visit on March 28, 2019. Ms. P. reported that both children were expressing anxiety before school, although were fine once at school. The CFS worker again met with the children privately, and noted that they seemed happy and were engaging. Neither of them reported having any worries about their mother.

[24] During the month of April, Ms. P. and her mother reported heightened conflict in their relationship. This conflict appears to have related to Mr. B. not having seen the children in three weeks.

[25] On May 1, 2019 Mr. B. was admitted to the hospital for forty-eight hours because he was feeling suicidal.

[26] The CFS worker visited the home again on May 3, 2019, and Ms. P. answered the door wearing two braces on her leg, and indicated to the CFS worker that she had fallen and broken her leg. The maternal grandmother was in the family room reading to the children.

[27] The CFS worker reported that Ms. P. informed her that Mr. B. was not doing well, but that Ms. A. had been forcing her to let him see the children, and that this was causing conflict between her and her mother. Additionally, Mr. B. was pressuring Ms. P. to resume their relationship, which she did not want to do.

[28] Ms. A. joined the conversation, and indicated that she was concerned for Ms. P.’s emotional and mental state. In her view, “things were not going well”. She stated that the children had been exposed to a major argument in April, and that the children were aware that “someone slept in her mother’s bed”.

[29] The CFS worker advised Ms. P. that she was deeply concerned about the children’s continued exposure to conflict in the home and that the CFS was considering launching a protection application to place the children with Ms. A. while Ms. P. and Mr. B. attended to their emotional and mental health needs and personal relationship issues.

[30] The CFS worker advised Ms. A. that she could take the children to the cottage for the weekend, and that the children could be returned to Ms. P. after the weekend, “unless Ms. A. believed that their safety would be compromised”. Ms. A. kept the children in her care “as she believed both parents needed a psychiatric assessment and, as such, neither of them were able to care for the children”.

[31] On May 12, 2019, the CFS worker received an email from Ms. A. indicating that Ms. P. was not happy about the children not being at home. Ms. A. stated that “Ms. P. was making threats to come and get the girls, which concerned her as Ms. P.’s mental health remained the same and as Ms. P.’s leg remained in a cast”.

[32] Based on this information, the CFS worker formally placed the children with Ms. A. and commenced these proceedings. The CFS worker advised Ms. P. that the children had been taken from her and placed with Ms. A. “because of the ongoing conflict in the home and because the CFS was worried about the mental health of both Mr. B. and herself”.

[33] Ms. P. has provided a responding affidavit. In this affidavit she states that Ms. A. lives down the street from her, and often comes to the home on her own accord, without Ms. P. requesting or requiring her help. She does acknowledge requesting Ms. A.’s help around January 2019 when she was experiencing pain in her knee and back.

[34] Ms. P. indicates that she has had verbal conflict with her mother since she was a child. She states that her mother “has a history of undermining me and putting me down. She has provided physical assistance with the children, especially when they were babies, but she won’t respect any boundaries or my role as the children’s mother”.

[35] Ms. P. indicates that she and Mr. B. are currently separated, and have no intention of reconciling. They have not resided together since July 28, 2018.

[36] Ms. P. states that she has seen a psychiatrist for treatment in relation to her mental health issues, and that her last appointment was in January 2019. She has given the CFS consent to speak to her psychiatrist. She states that her psychiatrist has not expressed any concerns regarding her ability to parent. She is also seeing a psychologist on a weekly basis for trauma counselling.

[37] Ms. P. is asking that the children be returned to her on a temporary basis, subject to the supervision of the CFS. She asks that the father have supervised access with the children away from the home so that there is no contact between her and Mr. B.

[38] The CFS worker provided a responding affidavit outlining her view regarding the substantial support that Ms. P. has received from Ms. A. This information appears to come from Ms. A. The CAS worker states that Ms. A. has been “instrumental in caring for the children by taking them to school, reading to them, feeding them as well as doing bed time routine”. She states that Ms. P. has told her that she could not do these tasks on her own and that she needs the support of Ms. A.

[39] The CFS worker states that she is not relying exclusively on Ms. A.’s assessment of Ms. P.’s mental health, but that the CFS “has its own significant concerns, to the extent that we believe that a parenting capacity assessment, which would include a psychological assessment, is appropriate in this matter.” The CFS has not seen any reports from Ms. P.’s psychiatrist or psychologist.

[40] Finally, the CFS worker states that the CFS has significant concerns regarding Ms. P.’s mental health, her communication with the children, her inability to care for the children due to her major physical ailments, as well as adult conflict at home”.

[41] Ms. P. has filed an affidavit in response to this affidavit. She denies that Ms. A. ever took the children to school or cooks for the children. She acknowledges that Ms. A. has helped the children with their homework and the bath routine when Ms. P. hurt her back. She denies that Ms. A. has resided at her home since the summer of 2017.

[42] Finally, Ms. P. has indicated her willingness “to discuss the possibility of a Parenting Capacity Assessment”, but not as a precondition to her having care and custody of her children since she believes that there was no justification for their removal from her care.

Legislative Framework

[43] Sections 94(2) and 94(4) of the Child, Youth Family Services Act, S.O. 2017, c.14, schedule 1, provide the legal test to be applied for a temporary order for care and custody:

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 CFS’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 CFS’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 CFS, but not placed in,

(i) a place of secure custody as defined in Part IV(Youth Justice), or

(ii) a place of open detention as defined in that Part that has not been designated place of safety.

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 the child cannot be protected adequately by an order under clause 2(a) or (b).

[44] Section 94(6) and (8) set out the terms and conditions that can be imposed by the Court:

(6) 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 CFS that will supervise the placement, but shall not require the CFS to provide financial assistance or to purchase any goods or services.

(8) An order made under clause (2) (c) or (d) may contain provisions regarding any person’s right of access to the child on such terms and conditions as the court considers appropriate.

[45] Section 94(10) provides:

For the purpose of this section, the court may admit and act on evidence that the court considers credible and trustworthy in the circumstances.

[46] Under subsection 94(4), the burden of proof is on the CFS to satisfy the court that there are reasonable grounds to believe that there is a risk that a child is likely to suffer harm, including emotional harm, and the child cannot be adequately protected by an order returning the child to parental care with or without an interim supervision order: Children’s Aid Society (Ottawa) v. A.F., 2019 ONSC 2771, at para. 52; Catholic Children’s Aid Society of Toronto v. J.O.1, 2012 ONCJ 269, at para. 15.

[47] The legal test applicable on a care and custody hearing is the test set out by Blishen J. in Children’s Aid Society of Ottawa-Carleton v. T., 2000 CanLII 21157 (SCJ), at para. 10:

The Children’s Aid 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 or her parents, it is more probable than not that he or she will suffer harm. Furthermore, the Society must establish that the child cannot be adequately protected by terms and conditions of an interim supervision order to the parents.

[48] In Catholic Children’s Aid Society of Toronto v. J.O.1, Sherr J. noted, at para. 17:

It is important not to judge a parent by a middle-class yardstick, one that imposes unrealistic and unfair middle-class standards of child care upon a young mother, provided that the standard used is not contrary to the child’s best interests.

Analysis

[49] In my view, the evidence put forward by the CFS is not sufficient to establish that the children will suffer harm if they are returned to their mother under the supervision of the CFS.

[50] The primary concern advanced by the CFS was the exposure of the children to adult conflict because of the high-conflict history of the relationship between Ms. P. and Mr. B. There is no question that this was an unhealthy relationship that had the potential to harm the children if it continued. The evidence is, however, primarily historical. The evidence before me is that the couple have not resided together for a year, and that there is no chance of reconciliation. The mother recognizes that the relationship was not a healthy one. In my view, the evidence of historical conflict does not, in these circumstances, satisfy the CFS onus to prove that the children will suffer harm if left with the mother under CFS supervision.

[51] I am advised by counsel for Mr. B. that Mr. B. has now completed a 42-day addiction program, and he is content to continue with supervised access with the children.

[52] Counsel for Ms. P. argues that the CFS has relied on the evidence of Ms. A. regarding Ms. P.’s mental health, even though Ms. A. is not independent, objective or qualified to offer an opinion on this subject. There is much force in this argument. It is apparent from the CFS worker’s affidavit that she has readily accepted Ms. A.’s opinions and statements without question or qualification.

[53] For example, the CFS worker’s affidavit states: “Ms. A. pays for the medication for both Ms. P. and Mr. B.”. No corroborating documentation is appended to her affidavit. This statement is plainly incorrect, since Ms. P. is on ODSP, and most prescription drugs are covered under that program. I would expect a CFS worker to know this. This sort of inaccuracy calls for some caution when the court considers the hearsay evidence in the CFS affidavit.

[54] Ms. P. acknowledges that the only medication not covered by ODSP is paid for by her father, Mr. P. The fact that Ms. P. obtains this financial assistance from her father is not evidence that the children will suffer harm if left in her care.

[55] Ms. P. has consented to the CFS obtaining information directly from Ms. P.’s health-care providers, but, apart from the psychologist’s statement indicating that she had no concerns regarding Ms. P. caring for the children, the CFS has provided no evidence from any health-care professional. It is unclear why the CFS discounted this statement from the psychologist.

[56] Once the issue of adult conflict between Ms. P. and Mr. B. is removed from the equation, the CFS’s basis for refusing to place the children with the mother under CFS supervision is very thin.

[57] The fact that Ms. P. has relied on her parents for support in the past, and recognizes that she needs assistance in caring for her children, is not a sufficient basis to place the children in the care and custody of their grandparents instead of their mother. It is very common for mothers to require or seek the assistance of grandparents in raising their children. Reliance on such extended family support is not a reason to conclude that the children will suffer harm if left in the care of their mother.

[58] Nor does the fact that Ms. P. and Ms. A. have a history of conflict provide evidence that the children will suffer harm if left in the care of their mother. Whatever conflict they have had, the evidence indicates that, for the most part, they have been able to work together in the best interest of the children. Ms. A., like many grandmothers, has been exceedingly generous in giving of her time to assist her daughter in raising her grandchildren. Given the challenges confronting Ms. P., it is likely that Ms. A. has, like many grandmothers, provided essential support to her daughter at various times. Such generosity is to be commended, but it is not evidence that the children will suffer harm if left in the care of their mother.

[59] The mother recognizes that the CFS should continue to be involved, and that the children should be returned to her care subject to the supervision of the CFS and conditions. These conditions include cooperating with the CFS workers and allowing visits, and providing consents for the CFS to speak to her mental health care providers. She also asks that supervised access for Mr. B. take place away from the home so that there is no contact between them. In my view, this proposal is in the children’s best interest.

Conclusion

[60] I find that the children can be adequately protected in the temporary care and control of Ms. P. subject to supervision of the CFS with the following conditions:

a) Ms. P. shall not reside with Mr. B. and shall not have any contact or communication with Mr. B. and shall immediately notify the CFS of any contact or attempted contact by Mr. B.

b) Ms. P. and Mr. B. shall cooperate with the CFS, which includes attending meetings with CFS workers and answering, or returning the CFS worker’s electronic or other correspondence and telephone calls.

c) Ms. P. shall allow the CFS to attend her home on both an announced and unannounced basis.

d) Ms. P. shall allow the CFS private access to the children in the home, at school and in the community.

e) Ms. P. shall at all times abstain from the use of illegal substances, not allow illegal substances into her residence and ensure that visitors to her residence are not under the influence of alcohol or illegal substances.

f) Ms. P. shall notify the CFS forthwith of any change of residence, email address, phone numbers, or other contact information forthwith.

g) Ms. P. shall ensure the children’s basic needs are met including medical, educational, physical, emotional and developmental needs and follow any recommendations made by professionals in relation to her children.

h) Ms. P. and Mr. B. shall sign any consent forms as requested by the CFS, including consent to access health care records or speak to their respective health care providers, upon consultation with counsel.

i) Access to the children by the respondent Mr. B. will be at the discretion of the CFS particularly with respect to location, duration and level of supervision. Such access will not take place at the home of Ms. P., and the access will be arranged so that the mother and father do not have any contact or communication.

j) Ms. P. and Mr. B. shall sign any consents necessary for the release and sharing of information between the CFS and any other service providers with whom they and/or the children are, have or may become involved.

k) The children will continue to have regular access with Ms. A. and Mr. P. as arranged between Ms. P. and Ms. A.

Justice R.E. Charney

Date: August 1, 2019