COURT FILE NO.: 26994/19
DATE: 2019/08/07
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
The Children’s Aid Society of the Niagara Region
Vesna Benic-Mayer, for the Applicant
Applicant
- and -
M.I. and J.D.R.
Respondents
William Melnychuck, for the Respondent mother M.I.
James A. Brown, for the Respondent father J.D.R.
HEARD at Welland Ontario: July 25, 2019
WARNING
This is a case under the Child, Youth and Family Services Act, 2017 and is subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Family Services Act, 2017, which deals with the consequences of failure to comply, read as follows:
87(8) Prohibition re identifying child — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.
(9) Prohibition re identifying person charged — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.
142(3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
The Honourable Justice M. Kril
REASONS FOR DECISION
[1] The Children’s Aid Society of the Niagara Region (“the Society”) seeks an interim order pursuant to s. 94(2)(d) of the Child, Youth and Family Services Act that the child, J.O.l., born […], 2018 (“J.O.l.”) remain in the temporary care and custody of the Society, with access to the parents supervised in its reasonable discretion.
[2] The Respondent father, J.D.R., has brought a motion for an order that the child J.O.l. be returned to his care subject to Society supervision. In the alternative, the Respondent father seeks an interim order placing the child in the care and custody of the paternal grandfather, B.R. and his wife, L.M.R., subject to Society supervision.
[3] The Respondent mother does not support the father’s motion. Although Ms. M.l. ultimately seeks J.O.l.’s return to her care, she supports his remaining in Society care and in his current placement in a foster home in Niagara on a temporary basis.
[4] For reasons which follow, the Society’s motion is granted. The father’s motion is dismissed.
[5] The protection concerns with respect to J.O.l. date back to February 28, 2019. At that time, the paternal grandparents, Mr. and Ms. L.M.R., contacted the Society to express their concerns that J.O.l. was not being cared for adequately by his parents. The Society provided support to the parents primarily relating to concerns surrounding nutrition and safe sleep.
[6] Further concerns had arisen by April with respect to the mother’s ability to care for J.O.l. and the fact that the parent’s relationship was high conflict and involved physical violence. The allegations included that the mother was shaking the child, screaming at him and experiencing difficulties with managing her anger. The maternal grandmother, Ms. C.R., subsequently verified the concerns with respect to safe sleep practices and further identified concerns relating to the mother’s mental health, anger management, prior injuries to the child and violence in the parents’ relationship.
[7] The difficulties in the parent’s relationship culminated in the mother leaving the father and taking up residence with J.O.l. in the home of the maternal grandparents by about mid-April. She confirmed to the Society worker that J.O.l. had been exposed to adult conflict in the past. At that time, she also agreed to accept services and to work with the Society on an ongoing basis due to concerns with respect to domestic violence, safe sleep, nutrition and anger management. This agreement was short lived as by early May, the mother had left her parents’ home with J.O.l. and their whereabouts were not known. The Society’s efforts to contact the parents were not welcomed. The mother provided misleading information to the Society about her whereabouts and was not forthcoming with respect to her relationship status with the father. It appeared that the parents might again be living together with J.O.l. in Hamilton. J.O.l. was just 10 months old.
[8] On May 9, 2019 J.O.l. was brought to a place of safety by the Children’s Aid Society of Hamilton. On May 14, 2019 the Court ordered J.O.l. returned to the care and custody of the Respondent mother on a temporary temporary without prejudice basis and subject to Society supervision on extensive terms. The matter was transferred to Welland, and Niagara FACS was substituted as Applicant.
[9] The Society appealed the May 14th decision to the Divisional Court and brought a motion to stay the order pending the appeal. On May 24th, 2019 Justice Ramsay varied the earlier Order pursuant to s. 121(4) of the C.Y.F.S.A. ordering that J.O.l. be placed in the care and custody of the maternal grandmother subject to Society supervision on extensive terms and conditions. The Respondent mother was permitted to reside in the home of the maternal grandmother. The motion for stay was dismissed.
[10] On May 28, 2019 all parties consented to an Order placing J.O.l. in the temporary care of the maternal grandmother subject to the supervision of the Society on specified terms and conditions. The terms and conditions were extensive and directed primarily at concerns relating to adult conflict in the home (particularly relating to the parents), safe sleep protocols, the Respondent’s mental health, inappropriate use of drugs and alcohol and child safety and management. The Society’s appeal was withdrawn on consent.
[11] On May 29, 2019 J.O.l. was slightly injured in a fall. At the time of the accident, J.O.l. was being cared for by the maternal grandfather. The maternal grandfather had not been approved as a caregiver for J.O.l. as required. Ms. C.R. was aware of this condition as it formed part of the consent order.
[12] On June 20, 2019 the maternal grandparents’ youngest child made concerning allegations in school. L.R. reported that the Respondent mother gets mad at the baby and will not feed him. He also reported that when the mother gets angry she throws J.O.l. on the bed. He subsequently also reported that the mother had been in conflict with the maternal grandmother and had physically hit her. These allegations were subsequently confirmed by the maternal grandmother. Ms. C.R. confirmed that there was ongoing conflict in the home and that the Respondent mother had thrown J.O.l. on a bed and routinely experienced difficulties managing her anger when caring for the child.
[13] As a result of concerns that the maternal grandmother had failed to notify the Society of the physical altercation with the mother and failed to adequately protect the child in her care, J.O.l. was once again removed to a place of safety on June 20, 2019. The Society brought a motion for an order placing J.O.l. in its temporary care and custody and on June 25, 2019 Justice Gregson made a temporary temporary without prejudice order granting the Society’s motion and ordering that a kinship assessment with respect to the paternal grandparents proceed expeditiously.
[14] At the time of the temporary care and custody hearing, the Respondent parents were residing separate and apart although the status of their relationship was not clear. The kinship assessment with respect to the paternal grandparents had not yet been completed.
[15] At the hearing, the Society submitted that J.O.l. should remain in their care pending the final determination of the application. The Respondent father submitted that J.O.l. should be placed with him with Society supervision or alternatively with the paternal grandparents with Society supervision. The Respondent mother submitted that J.O.l. should remain in temporary Society care and in a foster home in Niagara while she worked to address the Society’s concerns. She opposed J.O.l.’s placement with the father or with the paternal grandparents.
The Law
[16] At a temporary care and custody hearing, the onus is on the society to establish, on credible and trustworthy evidence, that there are reasonable grounds to believe that there is a real possibility that if a child is returned to the respondents, it is more probable than not that he will suffer harm. Further, the onus is on the society to establish that the child cannot be adequately protected by terms and conditions of an interim supervision order (Children’s Aid Society of Ottawa-Carleton v. T. 2000 CanLII 21157 (ON SC), [2000] O.J. No. 2273 (Ont. Sup. Ct.).
[17] Based on the evidence before me I find that the Society has discharged the onus upon it and has met both prongs of the test. The evidence discloses that there are reasonable grounds to believe that there is a real possibility that J.O.l. would be at risk of harm if he were to be returned to the care of either, or both of his parents at this time. The risk of harm is such that J.O.l. cannot be adequately protected by the terms of a supervision order.
[18] The Respondent father seeks a temporary order that J.O.l. be placed in his care subject to Society supervision. There is no reasonable basis on which to find that the Respondent father is in a position to provide care for J.O.l. on his own. In his affidavit in support he deposes that he works as a truck driver from Monday to Friday and occasional weekends from 3:30 a.m. to 5:00 p.m. In his communications with the Society he acknowledged that he is not home very much. The father’s Answer and Plan of Care proposes that while he remain resident in Hamilton that J.O.l. reside with the paternal grandfather and his wife in Severn, Ontario. As a practical matter, the father is not available to care for J.O.l..
[19] The Society’s affidavit material discloses concerns about the Respondent father’s use of alcohol and drugs and lack of parenting experience. Ms. M.l. complained that Mr. B.R. did not appear interested in parenting. She alleged that he would not assist her in providing care for the child and that this was a source of frustration for her. She expressed disappointment with his lack of interest in parenting J.O.l.. The mother’s affidavit opposes placing J.O.l. with his father due to prior issues with alcohol consumption and caregiving. The father’s affidavit is not responsive to these concerns except to state that he has enrolled in parenting classes and counselling. A supervision order cannot reasonably address all of these concerns and particularly those with respect to the father’s lack of parenting experience.
[20] It would also not be reasonable to return J.O.l. to the care of his mother at this time. The evidence is that Ms. M.l. has experienced significant difficulty in parenting J.O.l. to date. The allegations are that she has thrown him onto a bed in anger and screamed at him. There are also concerns that when overwhelmed the Respondent mother will ignore J.O.l. and leave him crying. There are also concerns with drug use while in a caregiving role and with reports of self-harm as a response to exposure to conflict. The mother has also failed to protect J.O.l. from adult conflict.
[21] To her credit, the Respondent mother does not ask that J.O.l. be returned to her care at this time. She states that she understands that she must first complete certain programs including parenting and domestic violence counselling. In taking this position she shows insight and a willingness to place J.O.l.’s interests ahead of her own. The mother’s plan is to improve her parenting skills through education with the ultimate goal of having J.O.l. returned to her care on a permanent basis.
[22] To varying degrees each of the Respondent mother and the Respondent father have confirmed that their relationship has been characterized by domestic conflict. Although the parties each depose to living separate and apart at this time, they are engaged in couples counselling. The mother deposes that the parties are no longer in a relationship while the father deposes that they have decided to live separate and apart to address the concerns of the Society. The parties have reconciled at least once since the protection concerns arose. They may do so again. Exposure to a pattern of domestic violence has been accepted as creating a risk of emotional harm to a child. Children’s Aid Society of Toronto v. M.S., [2010] O.J. No. 2876 (SCJ). Neither party has demonstrated the ability to protect J.O.l. from exposure to violence and conflict when they are engaged in a dispute. There are reasonable grounds to believe that there is a real possibility that J.O.l. would suffer harm if placed in the care of either party alone or if they were together.
[23] The father proposes, in the alternative, that J.O.l. be placed with the paternal grandparents subject to Society supervision. Section 94(5) of the C.Y.F.S.A. requires that, “Before making a temporary order for care and custody under clause (2)(d), the court shall consider whether it is in the child’s best interest to make an order under clause 2(c) to place the child in the care and custody of a person who is a relative of the child or a member of the child’s extended family or community.”
[24] Mr. B.R. is the father of the Respondent J.D.R.. Mr. B.R. is retired and resides with his wife L.M.R. in Severn, Ontario. On June 25, 2019 the court ordered that the Society was to immediately assess the paternal grandparents. This assessment is ongoing but not yet complete. At the hearing the Society advised that they were not able to recommend a placement with the paternal grandparents at this time given that the assessment was not complete. Society counsel submitted that they will continue to consider this and any other potential family placements for J.O.l..
[25] Counsel for the paternal grandparents submitted that the Society should have commenced its assessment of the paternal grandparents as a possible placement much sooner. I disagree. The history of this matter before the Court supports the Society’s submission that it began its consideration of the paternal grandparents plan at an appropriate time, namely once J.O.l. was removed from the home of the maternal grandmother in June.
[26] In the course of conducting the assessment, the Society was advised that the paternal grandfather had a prior history of contact with the Society. The records have been requested but disclosure of some remains outstanding. At the hearing, Respondent father’s counsel advised that he has served a disclosure motion on the Toronto Children’s Aid Society. Society’s counsel advised that they have also requested information through the internal record disclosure process. Neither counsel has yet received material in response or the requested disclosure. Each advised the Court that they would make production to the other on receipt.
[27] The Society’s assessment is incomplete with respect to additional identified areas of potential concern. There are allegations of the use of excessive physical discipline by Mr. B.R. on his daughter when she was a child and that he may have anger issues. There are also allegations that the relationships between the paternal grandfather and father and paternal grandfather and mother are high conflict.
[28] Counsel for the paternal grandparents submitted that the court should draw an adverse inference against the Society for failing to file the direct affidavit evidence of Ms. D.R. and Ms. M.l. with respect to these areas of potential concern. However, the Society is not objecting to J.O.l. being placed in the care of his paternal grandfather at this time. As such, the Society is not relying upon the child protection worker’s affidavit to establish the truth of the allegations at this time. The Society’s position is that their kin assessment is ongoing and that they are unable to take a position with respect to the placement until it is complete.
[29] The fact is that the paternal grandfather resides in Severn, Ontario and that the mother resides in Welland. The mother does not drive. She identifies the distance as three hours one way by car and much longer by bus. The Respondent mother takes issue with J.O.l.’s placement with the paternal grandparents given the difficulties that it would create for her access.
[30] J.O.l. is now in a foster home in Niagara and the mother is able to exercise access regularly. She is also taking a parenting program at the Welland office of the Society and is able to have additional access after the program. It is vitally important that she continue to be a frequent presence in the life of this very young child and that their relationship and bond be facilitated. The goal of all concerned is for J.O.l. to be returned to the care of his mother (or parents if reconciled) once the protection issues are addressed. Both parents are engaged in programs to address the concerns as well as the difficulties in their relationship. It would not be appropriate or in J.O.l.’s best interest to place roadblocks in the way of access at this time.
[31] Finally, s. 94(11) requires that “before making an order under subsection (2), the court shall take into consideration the child’s views and wishes, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained.” Given that J.O.l. has just recently turned one year of age, his views and wishes cannot reasonably be ascertained.
[32] There will be an order as follows:
J.O.l., born […], 2018, shall be placed in the temporary care and custody of The Children’s Aid Society of the Niagara Region; and
Interim access to J.O.l. by M.l. and J.D.R. shall be as arranged by The Children’s Aid Society of the Niagara Region and supervised in its reasonable discretion.
[33] This matter has already been scheduled for a case conference on August 22, 2019 at 10:30 a.m. Two ASL interpreters are required for this date and all subsequent court dates.
Kril J.
Released: August 7, 2019
COURT FILE NO.: 26994/19
DATE: 2019/08/07
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
The Children’s Aid Society of the Niagara Region
Applicant
- and –
M.I. and J.D.R.
Respondents
REASONS FOR DECISION
Kril J.
Released: August 7, 2019