Court File and Parties

COURT FILE NO.: FC-06-1-3--6

DATE: September 30, 2019

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: The Children’s Aid Society of Ottawa, Applicant

AND:

T.A. and P.C., Respondents

BEFORE: Honourable Madame Justice M. Fraser

COUNSEL: Marie-Josee Ranger, Counsel for the Applicant Kristen Robins, Counsel for the Respondent T.A.

HEARD: September 26, 2019

ENDORSEMENT

[1] The Applicant (the “Society”) has brought a motion seeking an order that E.A., born […], 2019 (the “child”) be placed in the temporary care and custody of the Society, with access to the Respondent, T.A. (the “mother”) being in the discretion of the Society. The Respondent, P.C. has been identified as the father of the child. However, P.C., while initially acknowledging paternity, has now denied being the father.

[2] The mother opposes the Society’s motion and seeks an order returning the child to her care pursuant to the supervision of the Society.

Legal considerations on temporary care and custody motion:

[3] The legal test for me to apply on this motion is set out in subsections 94 (2), (4), (5) and (6) of the Child, Youth and Family Services Act (the “Act”) that reads as follows:

Custody during adjournment

94(2) Where a hearing is adjourned, the court shall make a temporary order for care and custody providing that the child,

(a) remain in or be returned to the care and custody of the person who had charge of the child immediately before intervention under this Part;

(b) remain in or be returned to the care and custody of the person referred to in clause (a), subject to the society's supervision and on such reasonable terms and conditions as the court considers appropriate;

(c) be placed in the care and custody of a person other than the person referred to in clause (a), with the consent of that other person, subject to the society's supervision and on such reasonable terms and conditions as the court considers appropriate; or

(d) remain or be placed in the care and custody of the society, but not be placed in a place of temporary detention, of open or of secure custody.

Criteria

94(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.

94(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

94(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.

[4] 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 or she will suffer harm. The onus is on the Society to establish that the child cannot be adequately protected by terms of conditions of an interim supervision order. (See: Children's Aid Society of Ottawa-Carleton v. T. 2000 CanLII 21157 (ON SC), [2000] O.J. No. 2273 (Ont. Sup. Ct.)). Simply stated, this is a two-part test that the Society must meet.

[5] A court must choose the order that is the least disruptive placement consistent with adequate protection of the child (subsection 1(2) of the Act). ( see: Children's Aid Society of Hamilton v. B.D. and F.T.M., 2012 ONSC 2448).

[6] The degree of intrusiveness of the Society's intervention and the interim protection ordered by the court should be proportional to the degree of risk. (See: CCAS of Toronto v. J.O.1, 2012 ONCJ 269).

[7] Subsection 94 (10) of the Act permits the court to admit and act on evidence that the court considers credible and trustworthy in the circumstance. In determining what evidence is credible and trustworthy, the evidence in its entirety must be viewed together. Evidence that may not be credible and trustworthy when viewed in isolation might reach that threshold when examined in the context of other evidence. (See: Family and Children's Service v. R.O., [2006] O.J. No. 969 (OCJ)).

[8] Section 93 of the Act permits the court to consider the past conduct of the person toward any child if that person is caring for or has access to or may care for or have access to a child who is the subject of the proceeding. Specifically, subsection 93(2) of the Act provides that any oral or written statement or report that the court considers relevant to the proceeding, including a transcript, exhibit or finding or the reasons for a decision in an earlier proceeding is admissible into evidence.

[9] Finally, a Society seeking an order for temporary Society care at this early stage of a case has only to demonstrate that it has reasonable grounds to believe that there is a protection risk for the child that justifies Society intervention. (See: L.D. v. Durham Children’s Aid Society and R.L. and M.L., 2005 CanLII 63827, 21 R.F.L. (6th) 252, [2005] O.J. No. 5050 (Ont. Div. Ct.)). The burden on the Society at this stage does not go as high as showing that on the balance of probabilities there is an actual risk to the child in the parent’s care. (See: CCAS of Toronto v. M.L.R. 2011 ONCJ 652).

[10] In making this determination I considered the following evidence:

1. Affidavit of Danielle Swim sworn June 21, 2019;
2. Affidavit of Danielle Swim sworn September 11, 2019;
3. Affidavit of Allysun Lowe sworn September 17, 2019;
4. Affidavit of Victoria Georgaras sworn September 17, 2109;
5. Affidavit of Danielle Swim sworn September 19, 2019; and
6. Affidavit of T.A. sworn September 20, 2019.

[11] The mother has had a significant history of involvement with the society. This history is thoroughly outlined in the Affidavits filed by the Society and is acknowledged by the mother. I have reviewed the Reasons for Judgment of Justice Linhares de Sousa dated January 6, 2015 as it pertained to the mother’s three older children when they become Crown Wards with no order as to access, the Reasons for Decision of Justice Beaudoin dated May 16, 2016 by which her fourth child became a Crown Ward with no access, and the transcript of the oral reasons of Justice Roger by which her fifth child became a Crown Ward with no access. These decisions were all attached as Exhibits to the Affidavit of Danielle Swim sworn September 19, 2019.

[12] I have additionally reviewed Family Court Clinic Assessments dated June 1, 2014, March 21, 2016, and November 17, 2017.

[13] These decisions and the assessments chronicle a history of pervasive concerns with respect to the mother’s capacity to provide appropriate care for her children, arising in part from long standing behavioral problems associated with mental health and personality issues, her struggles with self-esteem and her longstanding inability to demonstrate any insight into her deficits such that changes could be made. The past decisions detail a number of significant risk concerns about the mother’s parenting capacity, including the making of poor choices in managing children’s behaviours, her inability to understand and meet the emotional needs of her children due to her own untreated mental health issues. I consider the materials relevant for the purpose of providing a reliable backdrop against which to measure the extent to which the mother’s abilities have changed (See: Children’s Aid Society of Hamilton v. T.B. (mother) and B.S. (father), 2013 ONSC 6300).

[14] I note, in particular, the conclusions made by Dr. Wood in the third Family Court Clinic Assessment as this captures the tone and content of the decisions and previous assessments. At page 34:

T. currently presents with symptoms in keeping with a Persistent Depressive Disorder (e.g. chronic subsyndromal depression or Dysthymia in DSM-IV-TR) along with a current Major Depressive Episode in the context of stressors associated with CAS involvement and the apprehensions of her children. Although we recognize the significant difficulty associated with CAS involvement and the loss of children, T. also acknowledges having longstanding issues with self-esteem and having a feeling of hopelessness that seems to become exacerbated at times and lead to a decrease in her interests, motivation, and energy levels, as well as increased social isolation and passive suicidal ideation….In addition to this, T. presents with significant post-traumatic symptoms stemming from her childhood and adolescent experiences, which is also supported by the psychological testings and likely contributes to the ongoing depressive symptoms….

T.’s longstanding behavioural issues appear to be in keeping with a Cluster C Personality Disorder, specifically with avoidant and dependency traits, which is likely contributing to the above-mentioned concerns.

[15] Also, at page 41 – 43:

Overall it is our opinion that her mental health and personality issues directly impact T.’s parenting, which can be seen by her previous involvement with CAS and her continued denial of responsibility while blaming others for her situation….

While T. has repeatedly engaged in counselling over the years, including during her adolescence, early twenties, and over the past year, she seems to minimally benefit from these services, where it seems that she has covered the same topics on each occasion. Also, while T. was able to outline the theory behind Cognitive Behavioural Therapy, she was not able to relay any perceived benefits or strategies that she employs on a daily basis while also continuing to exhibit several post-traumatic symptoms stemming from childhood. This is in addition to continuing to struggle with unhealthy coping skills, such as dependence and avoidance, which has seemingly been largely unaddressed in her counselling….

While we recognize that T. has been attending counselling at Wabano since March 2016, and that she seems to have a relatively good therapeutic alliance with her counsellor, it is uncertain if she has gained many skills since she seems to present in a similar manner as she did during both her assessments with Mr. Pelletier….It is not our intention to undermine the skills and perceived progress in her therapy at Wabano, but it must be acknowledged that T. has a complex presentation and needs to be challenged in a sensitive manner to develop healthier coping skills and move past being in a victim role in order to allow her to be self-sufficient and make better decisions….Regardless of her pursuit of therapy and resources, T. would need to be dedicated and motivated to seek insight into her current coping style and life decisions and how her past may have influenced this in order to gain any true benefit. Otherwise, counselling would mainly be a passive tool where she may gain further support and validation for her current situation….

Based on the longstanding nature of these concerns, we are pessimistic regarding T.’s ability to sufficiently address these issues in the near future, even if she were to obtain appropriate therapy.

[16] The mother acknowledges her history with the Society in relation to her previous five children. She concedes that the history of Society involvement is sufficient to conclude that there is a risk of harm. However, she disputes that she presently lacks “insight” into the past mistakes she has made or that she has not made sufficient progress to warrant a less intrusive supervision order at this time.

Have the mother’s abilities changed?

[17] To her credit, the mother has continued to access services in order to improve herself and her overall situation. She continues to receive support from several professionals at the Wabano Center for Aboriginal Health.

[18] Notwithstanding, the Society argues that given the historical backdrop clearly outlines a myriad of mental health and personality issues, the mother still does not presently demonstrate sufficient insight into her specific issues. The Society points out that she has not made sufficient gains to satisfy the court that a less intrusive supervision order would be sufficient to alleviate the risk of harm if the child was place with the mother. I agree.

[19] The mother has still not received the type of intensive therapy recommended to her even though it does appear that a referral has now been made. Absent such intensive therapy happening, it was previously concluded that the deficits arising from the other’s mental health and personality issues would impact the mother’s parenting and give rise to a risk of harm. This remains unaddressed and it is quite clear, based upon the materials before me, that the mother has not yet made the gains that would be required of her to support a less intrusive supervision order at this time.

[20] I note, for instance, that the only report which could be seen to comment on the mother’s progress is that prepared by Gisele Lamontagne, TSI/RSW dated September 4, 2019. All of the other correspondences appended to the mother’s affidavit simply confirm that the mother has engaged in various services and their preparedness to assist the mother developing certain needed coping and/or parenting skills.

[21] The correspondence from Ms. Lamontagne consists of a one-page confirmation that the mother has been attending therapy with her weekly since August 14, 2019. Ms. Lamontagne’s qualifications are not outlined. She states that the mother is “working on improving her insight and she is showing great progress” and that she is “very committed to demonstrating that she is capable of taking very good care of her baby and being the best mother possible.”

[22] The mother should be commended for her efforts to engage these services. However, in light of the findings and assessments previously made, these efforts are insufficient at this point to address the compelling reasons that have been put forward by the Society that would suggest the risk of harm continues to be exist. The mother still needs to engage mental health treatment of the specialized nature recommended to her on a long-term basis. At least she has now sought out a referral. However, given the treatment has yet to occur there is no evidentiary basis to conclude that the mother is showing any better insight into the issues which were the reason her previous children were removed from her care. Further, there is no evidence to support the suggestion that gains have been made by her to address the deficits which gave rise to the removal of her other children from her care.

Conclusion

[23] The focus in this case must, as always, be on the needs and interest of the child. The paramount purpose of the Act as outlined under subsection 1(1) is to promote the best interest, protection and well-being of children.

[24] I conclude that the Society has established, based on credible and trustworthy evidence, that there are reasonable grounds to believe that it is a real possibility that, if the child were returned to the mother’s interim care, the child would more probably than not suffer harm. I am satisfied, based upon the evidence before me, that the child could not be adequately protected by terms and conditions of an interim supervision order to the mother.

[25] As such there will be a temporary order as follows:

(a) The child shall be placed in the temporary care of the Children’s Aid Society of Ottawa;

(b) Access to the mother shall be a minimum of five (5) times a week at the discretion of the Society. Should the mother fail to attend two (2) visits in a row or within a two-week period without proper justification, frequency of access shall revert to the Society’s discretion; and

(c) Access to the father shall be at the discretion of the Society.

Fraser J.

Date: September 30, 2019