COURT FILE NO.: FC 210/19
DATE: 2019-09-17
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 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.
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Children’s Aid Society of the Regional Municipality of Waterloo, Applicant
AND:
S.S.H. and S.T.E. Respondents
BEFORE: The Honourable Madam Justice L. Madsen
COUNSEL: Charu Smith, Counsel for the Applicant
Patrick Brohman, Counsel for the Respondent, S.S.H.
Mark Maurer, for the Respondent, S.T.E.
HEARD: September 11, 2019
ENDORSEMENT
[1] This Endorsement relates to the Temporary Care Hearing held September 11, 2019 with respect to the child, D.C.W.E., born […], 2019 [“the child”].
[2] For the reasons set out below, the order sought by Children’s Aid Society [“the Society” or “the CAS”] that the child be placed in the temporary care of the Society, with access to the parents in the Society’s discretion, is granted.
MATERIALS REVIEWED
[3] The court considered the following materials on this temporary care hearing:
a. Child Protection Application, returnable June 18, 2019;
b. Notice of Motion, initially returnable May 13, 2019;
c. Affidavit of Child Protection Worker Linda Vieregge, sworn May 10, 2019;
d. Plan of Care of the Children’s Aid Society, signed May 10, 2019;
e. Answer and Plan of Care of the father, signed May 20, 2019;
f. Answer and Plan of Care of the mother, signed May 29, 2019;
g. Affidavit of Child Protection Worker Stephanie Riksen, sworn August 9, 2019;
h. Affidavit of Children Services Resource Worker Tanya Feeney, sworn August 9, 2019;
i. Affidavit of Child and Youth Services Worker Deborah Bowler-Sprague, sworn August 7 2019;
j. Affidavit of Child Protection Worker Liana Quilty, sworn July 29, 2019;
k. Affidavit of Protection Support Worker Rosemary Haley, sworn August 13, 2019;
l. Affidavit of the mother, sworn August 22, 2019;
m. Reply Affidavit of Child Protection Worker Stephanie Riksen, sworn September 4, 2019;
n. Factum and Brief of Authorities of the Society.
[4] The mother filed an affidavit but no factum or brief of authorities. The father filed no evidence, no factum, and no brief of authorities. Both parents’ counsel made submissions at the temporary care hearing.
BACKGROUND FACTS
[5] The Respondent, S.S.H., is the mother of the child. She is 29 years of age.
[6] The Respondent, S.T.E., is the father of the children. He is 39 years of age.
[7] The mother has one other child, S. H.-T., who is nine years old and not a subject of this proceeding. S. H.-T. lives with her paternal grandparents who have custody of her.
[8] The father has two other children: a daughter, A.E., who is eleven years old, and in the temporary care of the Society, to whom the father has supervised access; and J.G., who is now an adult.
[9] The father did not deny that in 1995, as a youth, he pled guilty to a sexual assault charge against a sibling.
[10] In 2003 the father was charged and pled guilty to sexually assaulting a 13 year-old girl.
[11] The father is presently facing serious criminal charges, including the following:
a. access child pornography contrary to s. 163.(4.1) of the Criminal Code;
b. voyeurism, contrary to s. 162(1) of the Criminal Code;
c. printing/ publishing child pornography contrary to s. 163.1(2) of the Criminal Code;
d. make intimate image, contrary to section 163.1(1) of the Criminal Code;
e. extortion, contrary to s. 346(1.1)(b) of the Criminal Code; and,
f. breach of recognizance, contrary to section 145(3) of the Criminal Code.
[12] Under the terms of his recognizance, the father is obliged to reside with a surety and have no communication with his daughter A.E. except as approved by the Society. His recognizance is silent as to contact with the subject child who was not yet born when the terms were set. The mother is a second surety, but father is not obliged to reside with her.
[13] The child was born two months prematurely on […], 2019.
[14] On […], 2019, two days after his birth, the child was removed from his parents care due to the Society’s concerns about: the mother’s minimal pre-natal care; potential risk of the father to the child given the serious allegations against him as well as his prior history; and what it saw as the mother’s lack of insight into the risk posed by the father to the child.
[15] On May 13, 2019, the court made a temporary temporary without prejudice order placing the child in care with access to his parents in the discretion of the Society.
[16] The child was released from the hospital on June 3, 2019 into the home of a foster parent. The parents’ access was moved from NICU to the Society’s supervised access facility.
[17] On June 12, 2019 the Society advised the mother of “bottom lines” for the Society to consider transitioning the child to her care. Those bottom lines included:
a. that the mother release her surety to the father (a suggestion put forward by the parents);
b. that the mother obtain housing independent of the father;
c. that the mother show an ability to meet the child’s needs;
d. that the mother demonstrate that she would put the child’s needs first; and
e. that the mother show that she would have a strong support network.
[18] The mother quickly obtained appropriate housing independent of the father.
[19] On June 30, 2019 the Society proposed a plan to integrate the child to the mother’s care with a view to full integration by July 23, 2019. In addition to the bottom lines, the Society advised the parents of the following expectations:
a. that the father’s access continue to be at the society;
b. that the mother provide agency staff access to her entire apartment;
c. that the mother communicate with the society staff about feedings, sleep, and diaper changes, and
d. that check-ins by Society workers at the mother’s home would be unannounced.
[20] On June 30, 3019, the parents stated they would follow the Society’s expectations.
[21] The transition from foster care to the mother’s care commenced with day visits, which were anticipated to transition to overnight visits.
[22] The transition commenced well, with a visit by a worker at the mother’s home on July 3, 2019. The mother welcomed the Society worker into the home. The worker provided the mother with a notebook to track feedings, diaper changes, and sleeping. On July 4, 2019 when the worker observed the father’s car in the parking lot, the mother allowed the worker to inspect the apartment. The mother explained that the father’s car had overheated and he left it in the parking lot the day before. At this time, the mother was cooperative.
[23] However, thereafter, the Society quickly became concerned regarding the mother’s level of compliance with the hospital-recommended feeding plan, her lack of willingness to allow workers into all parts of her home to verify that the father was not there, and her overall lack of cooperation. A concern developed that the mother did not understand the risk the father posed to the child in view of his history and current serious criminal charges.
a. On July 8, 2019, the mother stated to two workers, Tanya Feeney and Rosemary Haley, during a check-in, that she did not understand why the father poses a risk to the child given that the child is a boy and that the risks, from her perspective, relate to girls. She stated that her plan is for the family to be together.
b. On July 10, 2019 following a discussion about feedings, the mother told the workers Rosemary Haley and Tanya Feeney that she did not want to allow other workers into her home, or into the homes of other family members during access. The mother stated that she would continue to be a surety for the father;
c. On July 17, 2019, after a discussion with the worker about feedings, the mother refused to allow the worker, Deborah Bowler-Sprague, to enter a bedroom to which the door was closed. The worker asked if anyone else was in the home. The mother asked the worker if she had a search warrant, told her she was being recorded, and told her to “get out” of the apartment;
d. Also on July 17, 2019, the mother texted worker Liana Quilty stating that if workers want to know the father’s whereabouts they should call his other surety and that “every worker” should not search through her house.
[24] The mother’s access at her home was put on hold and returned to the Society. Visits were scheduled for one and a half hours, three times per week, two with the parents together and one for the mother alone to demonstrate her caregiving skills.
[25] The father vehemently denies allegations against him, including those resulting in prior convictions following his guilty plea, in 1995 and 2003. He has alleged that the CAS fabricated the sexual context of his conviction as a youth. Yet, on May 28, 2019 he acknowledged to worker Stephanie Ricksen that the child is in care due to “his history.”
[26] Many of the father’s interactions with the Society have been combative. The father has acknowledged his anger to the Society. He has stated that the mother often has to talk him down if he is stopped by police and that one day was so bad that it was almost “suicide by cop.” On July 29, 2019, the father abruptly told the worker, Ms. Haley, that he and the mother would be making up their own rules. He presented as angry and frustrated. He stated that he would shut down the CAS in a heartbeat if he was Prime Minister, and talked about going on a killing spree. He stated that he was losing his mind and could see how people snap. He said he would fight to the death for his son and had nothing to live for. None of these statements are denied. The police were contacted and the father was cautioned.
[27] While the workers expressed concerns in their affidavits about the mother’s failure to follow the feeding schedule and quantities recommended by the hospital, the affidavit materials indicate that the child gained weight after discharge from the hospital and that physicians have not been concerned about his overall weight gain.
[28] A kinship assessment is in process with respect to the child’s paternal great-grandmother. The evidence of the Society is that the kinship assessment, which is being undertaken by the Children’s Aid Society of Nippising and Parry Sound, is not complete. The parents did not provide evidence of other possible kinship options.
[29] On this hearing the Society seeks an order that the May 13, 2019 order be made “temporary”, and that the child remain in the care of the Society with access to the parents in the Society’s discretion, pending final resolution.
[30] The mother seeks an order that the child be placed with her under terms of supervision. In her affidavit sworn August 22, 2019, she states that she agrees “with the majority” of what is stated in the affidavits of the Society workers. With regards to her statements to the workers denying access to all rooms in the home, she explains that she felt her privacy was being invaded. She also stated that she fed the child as much as he would take at each feeding. In her affidavit she also stated, “I will continue to do my best to cooperate with the Children’s Aid Society.”
[31] On August 29, 2019 one week after swearing that affidavit, protection worker, Ms. Riksen, received an email from the mother containing the following statements:
“OK Stephanie as I’ve made clear multiple times. Your “rules” mean fuck all to me. As you have DESTROYED my family. I will not take [the child] outside without [the father] present… I’M DONE PLAYING YOUR GAMES….You are not allowed to be around myself, my son, or [the father] and if you are I request an officer be present….”
[32] The father filed no materials and thus did not respond to any of the statements in the workers affidavits regarding past and current charges. He supports the mother’s position on the temporary care hearing. He has filed an Answer in which he seeks placement of the child with the parents jointly, or in the alternative, placement with the mother solely.
POSITIONS OF THE PARTIES
[33] The Society makes the following arguments:
a. that the mother failed to follow the recommendations from the hospital regarding feedings for the child and failed to take direction or cooperate with the workers in this regard;
b. that the mother does not appreciate the risk that the father poses to the child in light of his past and current charges, as demonstrated by not releasing her surety, and her statements to the worker about lack of risk to the child. The Society argues that this poses a real risk that she will not act protectively of the child;
c. that the mother has shown that she will not cooperate with the Society, such as by denying access to all parts of her home. The Society argues that this shows that the mother cannot be relied upon to follow terms of supervision. Specifically, if the mother could not cooperate for even a three-week transition period while the child was being transitioned to her care, it is unlikely that she will follow supervision terms going forward; and
d. that there is a power imbalance between the parents whereby the mother defers to the father, and that this may further diminish her ability to be protective of the child.
[34] The mother makes the following arguments:
a. that the evidence is that the child has gained weight and is thriving, notwithstanding the allegations that the mother did not follow the feeding recommendations during the initial transition period;
b. that the evidence does not suggest that the mother will not act protectively of the child;
c. that notwithstanding the mother’s email to the worker, there is no evidence that the mother will not cooperate with an order of the court; and,
d. that the evidence does not suggest a power imbalance between the parents. Rather, the father accepts guidance from the mother on parenting issues and the parents treat one another as equals.
[35] The father argues as follows:
a. that the real power imbalance is between the Society and the parents;
b. that the hostility of the parents is justified in the circumstances, and that anyone in the mother’s circumstances could be forgiven for a combative attitude; and
c. that on a temporary care hearing the risk of harm must be real, and not speculative, and in this case there is insufficient evidence of risk of harm.
THE APPLICABLE LAW
[36] The relevant sections of the Child, Youth, and Family Services Act 2017, S.O. 2017, c. 14, Sched. 1 [hereinafter the ‘CYFSA’ or the ‘Act’] provide as follows:
Section 1:
Paramount purpose
1 (1) The paramount purpose of this Act is to promote the best interests, protection and well-being of children.
Other purposes
(2) The additional purposes of this Act, so long as they are consistent with the best interests, protection and well-being of children, are to recognize the following:
While parents may need help in caring for their children, that help should give support to the autonomy and integrity of the family unit and, wherever possible, be provided on the basis of mutual consent.
The least disruptive course of action that is available and is appropriate in a particular case to help a child, including the provision of prevention services, early intervention services and community support services, should be considered.
Services to children and young persons should be provided in a manner that,
i. respects a child’s or young person’s need for continuity of care and for stable relationships within a family and cultural environment,
ii. takes into account physical, emotional, spiritual, mental and developmental needs and differences among children and young persons,
iii. takes into account a child’s or young person’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression,
iv. takes into account a child’s or young person’s cultural and linguistic needs,
v. provides early assessment, planning and decision-making to achieve permanent plans for children and young persons in accordance with their best interests, and
vi. includes the participation of a child or young person, the child’s or young person’s parents and relatives and the members of the child’s or young person’s extended family and community, where appropriate.
Services to children and young persons and their families should be provided in a manner that respects regional differences, wherever possible.
Services to children and young persons and their families should be provided in a manner that builds on the strengths of the families, wherever possible.
First Nations, Inuit and Métis peoples should be entitled to provide, wherever possible, their own child and family services, and all services to First Nations, Inuit and Métis children and young persons and their families should be provided in a manner that recognizes their cultures, heritages, traditions, connection to their communities, and the concept of the extended family.
Appropriate sharing of information, including personal information, in order to plan for and provide services is essential for creating successful outcomes for children and families
Section 73: Best Interests of the Child
73 (3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall,
(a) consider the child’s views and wishes, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained;
(b) in the case of a First Nations, Inuk or Métis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Métis cultures, heritages and traditions, of preserving the child’s cultural identity and connection to community, in addition to the considerations under clauses (a) and (c); and
(c) consider any other circumstance of the case that the person considers relevant, including,
(i) the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs,
(ii) the child’s physical, mental and emotional level of development,
(iii) the child’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression,
(iv) the child’s cultural and linguistic heritage,
(v) the importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family,
(vi) the child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community,
(vii) the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity,
(viii) the merits of a plan for the child’s care proposed by a Society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent,
(ix) the effects on the child of delay in the disposition of the case,
(x) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent, and
(xi) the degree of risk, if any, that justified the finding that the child is in need of protection.
Section 94: Custody During Adjournment
(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.
Criteria:
(4) 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 that the child cannot be protected adequately by an order under clause (2) (a) or (b).
Placement with relative, etc.:
(5) 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 interests 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.
Terms and conditions in order:
(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 Society that will supervise the placement, but shall not require the Society to provide financial assistance or to purchase any goods or services.
Access
(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.
Evidence on adjournments
(10) For the purpose of this section, the court may admit and act on evidence that the court considers credible and trustworthy in the circumstances.
Child’s views and wishes
(11) 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.
[37] The onus on a temporary care hearing 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 the child is returned to the parents it is more probable than not that he or she will suffer harm. The Society must also establish that the child cannot be adequately protected by terms and conditions of a temporary supervision order. Children’s Aid Society of Ottawa v. L.(M.), 2017 ONSC 2284 at paragraph 39. See also C.A.S. of Ottawa-Carleton v. T., 2000 CanLII 21157 at paragraph 6-10.
[38] The court may act on evidence it considers credible and trustworthy in the circumstances, viewing the evidence together, in its entirety. Evidence that might not be credible and trustworthy when viewed in isolation might reach that threshold when examined in the context of other evidence. See Jewish Child and Family Services of Toronto v. A.K., 2014 ONCJ 227 at paragraph 18.
[39] The court must choose the least disruptive placement consistent with the adequate protection of the child or children. Children’s Aid Society of Hamilton v. B.D. and F.T.M., 2012 ONSC 2448 at paragraph 29.
[40] Terms and conditions relating to the children’s care and supervision must be reasonable and proportionate to the specific risks highlighted by the evidence.
[41] Where the court makes an order that does not place the children with a parent, the court must carefully consider what access order is in the children’s best interests and on what possible terms and conditions.
[42] On this temporary care hearing, the question is whether the child could safely be returned to the care of the mother, as sought, under terms of supervision; and if not, whether there is any less disruptive alterative than that sought by the Society. The parents do not seek a temporary order that the child be placed with them jointly, and the father does not seek placement with himself solely.
ANALYSIS
[43] Having considered all of the credible and trustworthy evidence in conjunction with the relevant legislation and case law, this court is satisfied that there are reasonable grounds to believe that there is real possibility that if the child is returned to the mother, it is more probable than not that the child will suffer harm, and that this would not currently be mitigated by a supervision order.
[44] This court is also satisfied that the placement which is least disruptive, and best supports the child’s best interests at this time, is continued placement in Society care, with access to the parents in the discretion of the Society. In reaching this determination, this court finds as follows:
a. The mother has taken steps towards meeting the reasonable bottom lines established by the Society, including securing appropriate housing independent of the father;
b. While the mother did not systematically comply with the detailed feeding recommendations of the hospital, the evidence does not support a finding that her failure to do so had negative health effects on the child; the evidence suggests that physicians have not expressed concern that his rate of weight gain was inadequate or insufficient, suggesting that the child was getting what he needed nutritionally, including during the initial transition period;
c. However, and acknowledging that the father has not been convicted of the current charges, the evidence establishes that the father poses a real and not speculative risk to the child; his convictions are both for crimes of a sexual nature involving children. His current charges, while unproven, are very serious, again involving charges of a sexual nature involving children;
d. The mother’s statements confirm that she does not appreciate the nature of the risk to the child and the importance of acting protectively;
e. Further, however frustrating it may be to have a range of workers seek access to all rooms in her home (and the court acknowledges that this would feel like an invasion of privacy), the mother’s conduct in not cooperating to allow full access to her home confirms her lack of understanding of the seriousness of the risk posed by the father and the basis for the Society’s actions in this regard;
f. Notwithstanding the mother’s statement in her affidavit that she will continue to cooperate with the Society, her email communication strongly suggests the opposite;
g. The court does not accept the submission that because there has been no supervision order to date and no court order requiring that she permit worker access to the home, she should be presumed to intend to cooperate with a court order. The mother’s email to the Society of August 29, 2019 gives the court no confidence that she intends to cooperate. She has given the court little reason to have any confidence that she would treat an order of the court differently than the expectations of the society to which she agreed;
h. There may or may not be a power imbalance between the parents. Much of the evidence relied on by the Society in this regard was hearsay, and counsel for the mother took the court to evidence in the materials that would suggest that in some respects there is a “balance” between the parties.;
i. On the issue of hostility of the parents to the Society, the court recognizes that in any context where a child is apprehended, parents would reasonably be angry, upset, and perhaps fearful. To have a child removed from one’s care is surely the most significant of intrusions into the life of a family. However, the court cannot agree with the father’s counsel’s submission that such anger should excuse any volatile, aggressive, or threatening interactions with the Society. Confronted with the apprehension of their child, however painful, the obligation of the parents in this context, where the risk to the child is more probable than not, is to make their best efforts to work with the Society to address what are legitimate protection concerns, to facilitate the return of their child. While the parents’ emotions are real and intense, they must focus on putting their child’s needs first. In doing so, this would in any event lay the groundwork for his return, as the Society had hoped to do when it developed the transition plan in June of 2019.
j. As noted above, there is no evidence of currently available kin options in this matter. While the paternal great-grandmother may become an option, the kinship assessment was not complete as at the date of the temporary care hearing.
[45] Based on the foregoing, this court finds that the least disruptive placement for this child at this time is continued placement in care, with access to both parents in the discretion of the Society.
[46] This is also the placement that is consistent with the children’s best interests, having regard to the factors set out in section 73 of the Act.
[47] I note that when this matter commenced, the position of the Society was transition of the child to the care of his mother under supervision. In argument, Society counsel acknowledged that the mother had initially taken certain steps towards implementing the transition plan, including securing her own accommodation.
[48] The Society stressed that it would like to return to a consideration of transition of the child to the mother’s care as and when she can demonstrate that she will be cooperative. Society counsel stated, “The Society is not saying ‘never.’ It is saying ‘not yet.’” Counsel acknowledged that both parents love the child.
[49] Counsel for the Society also indicated that a new worker has been assigned to the matter in recognition that it can be very difficult for a parent to work constructively with a worker who has been involved in the apprehension of a child. This is a positive step and shows the Society’s commitment to continuing to work productively with the mother.
[50] The court strongly encourages the mother to acknowledge the seriousness of the father’s history and current charges, and to put her child first in her approach moving forward. It is clear from the Society’s submissions that it hopes to return to an integration plan once the mother can show an ability to cooperate and place the needs of the child ahead of her own and those of the father.
CONCLUSION AND ORDER
[51] For the reasons set out above this court orders as follows:
- The temporary temporary without prejudice order made May 13, 2019, placing the child in the care and custody of the Children’s Aid Society of the Regional Municipality of Waterloo, with access to the parents as set out therein, is made temporary.
L. Madsen J.
Date: September 17, 2019