COURT FILE NO.: FC-18-1364-00

DATE: 20190806

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Simcoe Muskoka Child, Youth and Family Services

Applicant

– and –

K.W. and J.S.

Respondents

C. Gilchrist, for the Applicant

C. Severn, for the Respondents

HEARD: July 29, 2019

Jain J.

Introduction:

[1] This matter came before me for a temporary care hearing. The Simcoe Muskoka Child, Youth and Family Services (“the Society”) issued an Amended Application. The parents are seeking the return of the child to their care subject to terms of supervision. The parents are K.W. (the mother) and J.S. (the father). The child at issue is A.S., born [...], 2018.

[2] The child was originally apprehended from the parents at the hospital when he was born. He has been in the care of kin since his apprehension, having only supervised access with his parents for up to 6 hours per week. The child has been placed in the care of his paternal grandmother subject to terms of supervision for most of his life. The parents and the paternal grandmother are highly conflicted.

Issues:

[3] The issues are as follows:

1. Has the Society demonstrated that there are reasonable grounds to believe that, pursuant to s. 94 (2) of the Child, Youth and Family Services Act[^1], (hereinafter referred to as the “CYFSA”), there is a real possibility that if the subject child is returned to the parents, it is more probable than not that they will suffer harm?

2. If so, has the Society demonstrated that, if returned to the parents, the child cannot be adequately protected by terms and conditions of a temporary supervision Order?

3. If the child cannot be adequately protected by terms and conditions of a supervision Order, is it in the child’s best interests to make an Order under clause (2) (c) and place the child in the interim care of the paternal grandmother, subject to supervision?

4. What terms and conditions regarding access are appropriate?

Background:

[4] The parents have been involved with the Society since the spring of 2018, (prior to their child A.S. being born on [...], 2018). The Society’s concerns include: allegations of violence and volatility between the parents and the parents and service providers; parent’s lack of caregiving skills; the parents not having income to meet their basic needs; mental health problems of the parents; and since the child’s birth - the child’s exposure to the parent’s conflict and aggression.

[5] In May 2018 the mother was residing with the paternal grandmother, however, this situation broke down and conflict ensued between the mother and father and conflict continues between both parents and paternal grandmother. Both parents believe that the paternal grandmother has manipulated and lied to service providers (doctors and social workers) so that she can keep the child in her care.

[6] The Society indicates that the father has a diagnosis of Asperger’s and bipolar and the mother suffers from epilepsy, seizures, PTSD and anxiety. There are allegations of domestic violence between the parents, (as reported by the paternal grandmother and the father). There are also allegations that both parent’s behaviour in the presence of the child is marked with conflict, anger, frustration and volatility – with no regard for the impact on the child. The Society continues to be concerned about the conflict and the parties lack of engagement and insight.

[7] In March 2019, the Society issued an Amended Application seeking an order for the paternal grandmother to have custody and the parents to have supervised access.

[8] I have read and relied upon the following documents:

1. Affidavit of Laura Wilson dated November 2, 2018 and filed at Volume 1, Tab 3;

2. Affidavit of Carolyn McKay dated November 27, 2019 and filed at Volume 1, Tab 6;

3. Affidavit of S. Van Casterer dated December 31, 2018 and filed at Volume 1, Tab 7;

4. Affidavit of Val St. Pierre dated March 21, 2019 and filed at Volume 1, Tab 9;

5. Affidavit of M. Boissonneault dated March 25, 2019 and filed at Volume 1, Tab 11;

6. Affidavit of L. Morris dated April 1, 2019 and filed at Volume 1, Tab 12;

7. Affidavit of M. Boissonneault dated March 27, 2019 and filed at Volume 1, Tab 16;

8. Respondent Parents Notice of Motion dated May 9, 2019 and filed at Volume 1, Tab 17;

9. Affidavit of Mother dated May 9, 2019 and filed at Volume 1, Tab 18;

10. Affidavit of Father dated May 9, 2019 and filed at Volume 1, Tab 19;

11. Notice of Motion dated May 10, 2019 and filed at Volume 2, Tab 20;

12. Affidavit of M. Boissonneault dated May 13, 2019 and filed at Volume 2, Tab 21;

13. Affidavit of Mother dated May 15, 2019 and filed at Volume 2, Tab 22;

14. Affidavit of M. Boissonneault dated May 17, 2019 and filed at Volume 2, Tab 23;

15. Affidavit of Father dated May 28, 2019 and filed at Volume 2, Tab 24;

16. Affidavit of C. Couture dated July 6, 2019 and filed at Volume 2, Tab 25;

17. Affidavit of L. Morris dated July 24, 2019 and filed at Volume 2, Tab 26;

18. Affidavit of M. Boissonneault dated July 29, 2019 and filed at Volume 2, Tab 27

19. Factum of the Applicant;

20. Factum of the Respondent.

Analysis:

Issue #1: Has the Society demonstrated that there are reasonable grounds to believe that, pursuant to s. 94 (2) of the Child, Youth and Family Services Act, (hereinafter referred to as the “CYFSA”), there is a real possibility that if the subject child is returned to the parents, it is more probable than not that they will suffer harm?

[9] The Society’s amended application seeks deemed custody of the child to the paternal grandmother and supervised access to the parents. It is brought pursuant to the terms of the Child, Youth and Family Services Act, 2017. Section 94 (2) of the Act provides:

(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 secure custody.

[10] The test to justify an order for temporary care and custody is that 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 a temporary supervision order to the parents.[^2]

[11] A motion for interim care is about the Society’s belief about risk to the child. This means the investigation is not complete at the time of the motion hearing. The Society must keep pace with its investigation, continually informing its beliefs by the ever-expanding information available to it and measure its belief against the criteria establishing the risk of harm to the child.[^3]

[12] The conflict between the parents and paternal grandmother has been noted in both the parents and Society’s affidavits, and in prior endorsements. McDermot J., November 5, 2018 noted as a concern that placing the child with the paternal grandmother could expose the child to significant adult conflict. In that endorsement, he also noted the “very limited access” to the parents, (which was only 6 hours per week - supervised). The access has not changed or increased despite another endorsement dated March 4, 2019 which said the “Society notes improvement and they are willing for the parents to have some unsupervised access. Once a home inspection is completed, access may take place at the parent’s home. The goal is to return the child to the care of the parents as provided in the CYFSA.”

[13] Although the parents deny that the Society has reasonable grounds to believe the child will suffer harm if returned to their care, they do not deny there has been a high level of conflict, (both with the paternal grandmother and the Society). The parents blame the Society and the paternal grandmother for the conflict. They argue that the Society’s beliefs are all based upon an evidence that was provided by an un-credible and untrustworthy source, being the paternal grandmother. They say that the paternal grandmother has manipulated the professionals (doctors and workers) and even the parties themselves. They say the paternal grandmother has fabricated stories of abuse and conflict and made false allegations against them.[^4] The parents express frustration with how much they perceive the Society has based their case upon the information provided by the paternal grandmother.

[14] In addition, the parents also deny they have acted aggressively or exposed the child to conflict during access visits. They say they have been simply reacting to what they perceive as the workers aggressive, bullying and harassing behaviour towards them.[^5] The parents have called the police by dialing 911 during some of the access visits. They admit they are very frustrated with the Society’s actions and they perceive them as unsupportive of them having the child return to their care.

[15] Lastly, despite statements they made in interviews with workers and in medical reports, the parents both deny they have ever been physically violent with each other. In his materials, the father has admitted to lying. He admits that he gave false disclosures about the mother historically being physically violent with him and threatening self-harm and about him having to defend himself.[^6] He alleges that his lies were because of the paternal grandmother’s manipulation. In her materials, the mother denies ever saying the parents were violent with each other. She says that this is a mis-communication and/or alleges the paternal grandmother has made it all up.[^7]

[16] Although the parties all disagree about the reasons for the conflict, I find that during many visits the child has been exposed to conflict. There have been numerous incidents requiring intervention and notably, between January and March of 2019, approximately half of the visits required the worker to address issues such as tone, adult topics, taking a break, and outbursts of anger displayed while the child was present.[^8] The parents themselves admit to calling 911 on multiple occasions during access.[^9]

[17] Additionally, there is admitted conflict between the parents and members of their family. The child was originally placed in the care of the paternal grandmother at birth. Following the first court appearance on November 5th, 2108, the Society completed a safety assessment of the mother’s cousin (this was at the request of the parents and due to the conflict between the parents and paternal grandmother). The child was then removed from the paternal grandmother’s care on November 13, 2018 and placed in the care of the maternal cousin. Then, this placement broke down due to the cousin reporting about the mother’s behaviour and anger toward her, and, the child was placed back with the paternal grandmother on November 27, 2018.[^10]

[18] The access visits in June and July have been positive, (the parents were described as “attentive and loving” with the child). They were further described as having “worked together to care from and address the child’s needs.” Unfortunately, the parents have cancelled more than half of the access visits scheduled since the last court date, so this makes it difficult for the Society to assess their progress.[^11] The mother has shown insight about how her and the father’s relationship impacts the child, however, this insight was only shown during a very recent visit on July 22, 2019.[^12]

[19] Although they disagree on the source, everyone agrees there has been conflict during the child’s access, so the child is being exposed to loud voices, angry tones, aggression and volatility. I cannot put a great deal of weight on the father’s affidavit evidence as it is self-serving, and he admits he is willing to lie to get what he wants. Additionally, although the mother denies she is yelling, screaming or acting aggressively with the workers during access, she does admit to being frustrated, talking about adult/court issues during access and calling the police more than once. All the conflict is placing the child at risk of emotional harm.[^13]

[20] Based on the above, I find that the Society’s belief is reasonable that if the child is returned to his parents care there is a real possibility that he will suffer harm.

Issues #2, 3, & 4 - Has the Society demonstrated that, if returned to the parents, the child cannot be adequately protected by terms and conditions of a temporary supervision Order? If the child cannot be adequately protected by terms and conditions of a supervision Order, is it in the child’s best interests to make an Order under clause (2) (c) and place the child in the interim care of the paternal grandmother, subject to supervision? What terms and conditions regarding access are appropriate?

[21] The Society must establish that the child cannot be adequately protected by terms and conditions of a temporary supervision order to the parents. The child is only 9 months old and has been in the paternal grandmother’s care for most of his life. It is not in his best interests to be bounced around to be placed in multiple homes. Since the Society has not completed a home assessment and the child’s exposure to conflict has continued, (with the parents only showing insight into this recently) I cannot make an order that will adequately protect the child by returning him to the parents under a supervision Order.

[22] With respect to the terms and conditions regarding access, I find that the current level access is inadequate and must be increased and expanded immediately. It is fundamentally unfair at the temporary care hearing stage of the proceeding for the Society to continue to provide a level of access that in its effect sets this young child on the path to a loss of his parents. At the same time, the parents must consistently attend access to that the Society can see their progress.

[23] It is late in the proceeding for the parents to show some insight into the effect of emotional dis-regulation and conflict in front of the baby. However, it is not too late. The investigation is still ongoing. The goal of the Society should still be the return of the child to the care of the parents as provided in the CYFSA.

[24] It is disappointing that it took so long for the parents to show insight. However, it is also disappointing that the Society never expanded the parent’s access, and that the unsupervised home visits that were contemplated to commence as early as March 2019 have not begun. Instead, the Society amended their application on March 26, 2019 and changed their position. The Society says this is due to a conflict that occurred at the Society office during a visit on March 11, 2019; the lack of parent’s engagement and progress; and the long period of time the child has not been in the parent’s care. The Society now takes the position that the paternal grandmother should have custody of the child and the parent’s access should be even more limited, (to just three hours every other weekend - supervised at a Supervised Access Centre).

[25] The Society was supposed to do an assessment of the parent’s residence in March. The parents moved at the end of March, but now, five months later, the Society still has not done such an assessment. The parents describe their current residence as “ideal” for both them and the child.[^14] The assessment of the parent’s residence is a very important piece of information for the Society and the court. By not completing the assessment, the Society is not keeping pace with its investigation or continuing to inform their beliefs about the risk of harm to the child

[26] With respect to expanding access, the Society says they have concerns about the safety of the child and the workers and supervisors. There was a serious incident report made on May 6, 2019 regarding the verbally aggressive and threatening behaviour of the mother.[^15] Despite this, the Society and the parents have both said the visits have been very positive over the last two months. The Society notes from the visits have shown that the parents are capable, and both parents have a great deal of affection for the child.[^16]

[27] The parent’s insight, although late in coming, should not be discounted or ignored by the Society. Considering the noted improvements in access as early as March, and the further improvements and insight noted in July, I do not think the conflict that took place in March or May should seal the child’s fate and end all chances for the parents. At the same time, the parents cannot ignore the importance of full cooperation with their own family and with the workers to provide a safe, conflict free environment when the child is in their care. The parents cannot continue to simply blame the paternal grandmother and the Society for the conflict. Conflict is a two-way street. The parents may feel powerless in the decisions that are being made about them regarding their child. This is especially stressful when they completely deny the basis for the concerns. However, the parents must take responsibility for their own behaviours and contributions to the conflict. Simply denying any responsibility does not excuse their lack of engagement and contributions to the conflict. Time is slipping away. Continued lack of engagement and progress coupled with continued conflict and outbursts could be the tipping point to an ultimate determination that does not return the child to the parents care.

[28] The parents were described by counsel as “young.” While they are not young in the sense of being teen parents, they are young parents in that this is their first child and they need the help of their family and other social services to parent him. They have experienced challenges with their housing and transportation. Additionally, the father admits to lying to the different medical professionals and social workers about the mother self harming and assaulting him.[^17] He says that he was being manipulated by the paternal grandmother. If the disclosures are true, they are very concerning. If the disclosures are untrue, they show the father is either lacking maturity or credibility or both.

[29] The mother admits she suffers from seizures and the father admits he has been diagnosed with Asperger’s. The Society has been given inconsistent information regarding the parent’s medical conditions. The parents deny all other diagnoses and allegations of domestic violence (between the parents). I find that the parents must provide medical information to clarify and confirm the status of their medical conditions and what if any effect they have on their ability to parent. With all these unanswered questions, I cannot expand the access immediately to unsupervised.

[30] Once the parents engage more positively in the process, significant progress can be made. The parent’s participation in a parenting course as recommended by the Society would be helpful to address the Society’s and the court’s concerns. The Society has already said the ongoing supervised access visits have been positive for the last couple of months. Also, despite their challenges, the parent’s income seems stable as the mother is in receipt of ODSP and the father works regularly as a landscaper.[^18]

[31] I wish to note that for the sake of the child, the parents and the paternal grandmother need to rebuild their relationship. By placing the child with the paternal grandmother, the Society was doing their best to keep the child with his family and avoiding a more intrusive placement, (like foster care). The conflict that existed at the time of the apprehension continues to this day. Both the parents and the paternal grandmother have made serious allegations about each other. No matter what the final disposition is in this matter, trust and understanding is required for any custodial arrangement to work in the best interests of the child. I encourage and recommend that the parents and the paternal grandmother and the Society participate in some form of alternative dispute resolution like mediation and/or family group decision making. This could help make some safe communication possible. With some safe, open communication, there is potential to build understanding and trust.

[32] At this time, for the foregoing reasons, I find the Society has demonstrated that, if returned to the parents, the child cannot be adequately protected by terms and conditions of a temporary supervision Order. It continues to be in the best interests of the child to be placed in the temporary care of the paternal grandmother subject to supervision and additional terms as set out below.

Conclusion:

[33] For the foregoing reasons, I make the following order:

1. A temporary supervision order, placing the child in care of the paternal grandmother, subject to the supervision of the Simcoe Muskoka Child, Youth and Family Services, (the Society).

2. The parent’s current access shall continue to be supervised at the discretion of the Society. The current access schedule shall be expanded to a minimum of 12 hours (supervised) per week for 3 weeks. The Society shall have discretion as to the supervision, frequency, duration and location of each visit.

3. The Society shall forthwith complete an assessment of the parent’s residence to determine whether it is appropriate to host access visits.

4. If the above 3 weeks of access proceed without conflicts occurring in the presence of the child, access will then be further expanded to a minimum of 18 hours (supervised) per week for three weeks as follows:

(a) In addition to the access visits that take place at the Society office, at least 6 of the 18 hours access (supervised) shall take place in the parent’s residence, (unless the Society has deemed the residence as inappropriate).

(b) The Society shall have discretion as to the supervision, frequency, duration and location of each visit.

(c) The Society shall be permitted to end the visit early and immediately remove the child or suspend the home visits entirely if the child is being exposed to conflict during the home visits.

(d) The Society has further discretion to make a safety plan and permit more than one supervisor/worker to attend access if they deem it necessary. If the child is removed from the parents care during an in-home visit due to conflict, the Society shall have discretion to suspend future in-home visits.

(e) If, after completing their home assessment, the Society deems the parent’s residence as inappropriate for access, (and the parents have not addressed the Society’s concerns about the residence) the Society shall have discretion to return all visits to the Society offices or some other location, (public or private) as they deem appropriate.

5. If the above six weeks of supervised visits proceed without conflicts occurring in the presence of the child, access shall then be further expanded gradually to be unsupervised at the discretion of the Society or upon further court order.

6. Prior to any expansion to unsupervised access, the parents shall provide the Society with a medical report from each of their doctors clarifying/confirming their diagnosis, the status of their medical conditions, medications (if any) and what if any effect they (the diagnosis and/or mediations) may have on their ability to parent.

7. The parents shall participate and complete an approved parenting course, (as recommended by the Society).

8. The Society shall explore the options of Child Protection Mediation services and/or Family Group Decision Making prior to the return date.

Jain J.

Released: August 6, 2019

[^1]: Child, Youth and Family Service Act, 2017, S.O. 2017 c. 14

[^2]: Children’s Aid Society of Ottawa-Carleton v. T. 2000 CanLII 21157 (ON SC), [2000] O.J. No. 2273 (Ont. S.C.J.) and R. (S.M.) v. Children’s Aid Society of Oxford County, 2003 CanLII 2421 (ON SC), [2003] O.J. No. 2568, 41 R.F.L. (5th) 168 (Ont. S.C.J.).

[^3]: D. (L.) v. Durham Children’s Aid Society, 2005 CanLII 63827 (ON SCDC), [2005] O.J. No. 5050 (Ont. Div. Ct.)

[^4]: Affidavit of parents dated May 9, 2019.

[^5]: Affidavit of Mother dated May 15, 2019.

[^6]: Affidavit of Father May 9, 2019.

[^7]: Affidavit of Mother, May 9, 2019.

[^8]: Affidavit of V. St. Pierre, March 21, 2019.

[^9]: Affidavit of Mother May 9, 2019.

[^10]: Affidavit of C. McKay, November 27, 2018.

[^11]: Affidavit of M. Boissonneault dated July 26, 2019

[^12]: Affidavit of M. Boissonneault dated July 26, 2019.

[^13]: Affidavits of M. Boissonneault dated July 26, 2019 and V. St. Pierre dated March 21, 2019.

[^14]: Affidavit of Mother dated May 9, 2019

[^15]: Affidavit of M. Boissonneault dated May 13, 2019, Vol 2, Tab 21, Exhibit “A”

[^16]: Affidavit of M. Boissonneault dated July 29, 2019

[^17]: Affidavit of Father dated May 9, 2019

[^18]: Affidavit of Mother dated May 9, 2019 and Father dated May 9, 2019