Court File and Parties

COURT FILE NO.: FC-19-FO-21 DATE: 2020-03-09

WARNING

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

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

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

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

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Children’s Aid Society of Haldimand and Norfolk, Applicant

AND:

K.H., Mother, Respondent R.J., Father, Respondent

BEFORE: The Honourable Madam Justice L. Madsen

COUNSEL: Ms. Lindsay Edwards, Counsel for the Applicant Mr. Daniel Sandler, Counsel for the Respondent Mother Mr. Edward Kiernan, Counsel for the Respondent Father

CORRECTED DECISION: The text of the original Judgment was corrected on February 19, 2021 at paragraph [179] 1. “The child, A.C.J., born […], 2017, who is not a First Nations, Inuk, or Metis child, is in need of protection under section 74(2)(b)(i) and (ii) and 74(2)(h) of the Child, Youth, and Family Services Act, by changing the word “sections” to “section” and removing the words “and 74(2)(h)” from the paragraph.

JUDGMENT

A. INTRODUCTION

Overview

[1] This is a child protection application in which the main issue is the access of the father, R.J. [“the father”], to his two-and-a-half-year-old daughter and whether that access should be supervised and/or include overnight access. The Children’s Aid Society of Haldimand and Norfolk [“the CAS”, “the society”, or “the agency”] started proceedings following a final custody and access order when it became apparent that the father would imminently seek overnight access and upon criminal charges being laid against him.

[2] The society seeks a finding that the child, A.J. [“the child”] is in need of protection and an order that she be placed in the sole custody of her mother, K.H. [“the mother”] with supervised access to the father at a supervised access facility (not at the CAS).

[3] The mother’s primary position mirrors that of the society. In the alternative, she seeks an order that the child be placed in her custody, and that the father have weekly specified day access to the child with access exchanges to take place in a public location.

[4] The father seeks an order that the society’s application be dismissed and that the operation of the existing final custody and access order resume. Under that order he has daytime access expanding to overnight access upon certain conditions which he says he has fulfilled. In the alternative, if the court finds that the child is in need of protection, he seeks either that there be no order as to disposition, or a supervision order placing the child with the mother with regular access to him facilitated through the CAS. Fundamentally his concern is having less access time through a supervision facility external to the CAS than if the society remains involved and access is organized through that agency.

Issues

[5] This court has been asked to decide the following issues:

a. whether the child is in need of protection and, if so, on what basis; b. if the child is in need of protection, i. what disposition is in the child’s best interests; and ii. what the access to the father should be.

[6] For the reasons that follow, this court finds that:

a. the child, A.J., born […], 2017 is in need of protection; b. the child shall be placed in the custody of her mother under section 102 of the Child, Youth, and Family Services Act [“CYFSA”]; and c. the father shall have access to the child at a supervised access facility once per week, subject to the availability of that facility.

Relevant court orders

[7] The following orders have been made in relation to these parents:

a. In a now concluded proceeding under the Children’s Law Reform Act [“the CLRA proceeding”]: i. the temporary order of Justice Edward dated August 3, 2018, on consent, providing for joint custody, appointment of the Office of the Children’s Lawyer [“OCL”], and parenting time for the father each Thursday, Saturday, and Sunday, with exchanges to take place at Dalhousie Place (an access facility); ii. the final order of Justice Hilliard, dated February 20, 2019, on consent, providing for custody to the mother, and day access to the father, expanding to overnight access on the fulfilment of certain conditions (proof of possession of crib or playpen, highchair, and toys). b. In the current proceeding: i. the temporary without prejudice order of Justice Hilliard, dated March 6, 2019, on consent, placing the child in the care of the mother under terms of supervision with access to the father in the society’s discretion; ii. the temporary order of Justice Walters, dated July 16, 2019, on consent, continuing the placement of the child with the mother under supervision with access to the father in the society’s discretion; iii. the final order of Justice MacLeod dated October 16, 2019, on consent, regarding the identification of the child.

Witnesses

The society’s witnesses

[8] The society called the following witnesses. Their evidence will be commented on below:

Kayla Bond, Investigation Worker Megan Cooper, Ongoing Family Service Worker Dr. Ellen Crump, Clinical Investigator for the Office of the Children’s Lawyer Laurie Wood, Client Support Worker, Norfolk Pregnancy and Family Resource Centre Emily Kunkel, CAS Clinical Access Facilitator Dr. Anca Pop, former physician of the paternal grandparents and paternal uncle Spencer Logan, CAS Clinical Access Facilitator Andrew Emmett, Registered Psychologist, Norfolk Pregnancy and Family Resource Centre

[9] I make the following comments about the credibility of the witnesses called by the Children’s Aid Society.

[10] Megan Cooper, a child protection worker, gave the most extensive evidence for the society. She worked with the family between January 22, 2019 as the ongoing family service worker and was still involved as of the date of the trial. I found Ms. Cooper’s evidence to be balanced, and she answered questions both in direct and cross-examination in a straight-forward manner. Ms. Cooper was able to identify certain strengths on the part of the father, in particular that he responds appropriately to the child during access visits and is engaged. She was matter-of-fact in setting out the challenges faced in working with the father and the society’s concerns. I have no difficulty with Ms. Cooper’s credibility.

[11] The court also heard detailed evidence from Kayla Bond, the investigation worker initially involved in this matter. Like Ms. Cooper, she gave her evidence in a balanced manner. Concerns regarding her evidence relate not to her credibility per se but to her evidence that she accepted at face value the mother’s statement that she and her boyfriend had separated, and that she did not investigate further regarding the boyfriend or ask to see his home. She also accepted hearsay statements of the family physician to a detective, following the child’s fall, rather than contacting the physician directly. However, in the context of the evidence regarding her own “well-baby checks” and the evidence of Ms. Cooper who worked with the family after the initial investigation, concerns arising from the process she followed were substantially alleviated.

[12] Dr. Ellen Crump, OCL investigator in the CLRA proceeding, gave her evidence in an understated and direct manner. Overall, I found Dr. Crump’s evidence credible, although in some respects it appears her investigation only scratched the surface. For example, she did not explore concerns regarding the paternal grandparents’ drug use, did not appear to be aware of there being guns in their home, and did not know that there was another occupant of the home (the paternal uncle). In this context, her apparent lack of discomfort with the paternal grandparents’ home as a location for access must be treated with caution. She seemed to have relied on the father’s statements that he intended to reside elsewhere, without ascertaining whether in fact there was a viable plan for that to take place.

[13] Laurie Wood was the father’s client support worker at the Norfolk Pregnancy and Resource Centre where the father participated in five parenting sessions. I accept her evidence that the father was respectful and spoke lovingly of his daughter during the five sessions he attended with her.

[14] Emily Kunkel and Spencer Logan, CAS clinical access supervisors, both gave evidence about the father’s supervised access visits (Ms. Kunkel’s evidence was by affidavit only but she was made available for cross-examination). I had no difficulty with either of their evidence. Both identified the father’s strengths during access, including being affectionate and appropriate, prepared with snacks, and able to make positive statements from time to time. Their evidence was also consistent regarding the father’s statements about stomach difficulties and about him being distracted by his cellphone.

[15] Dr. Anca Pop gave evidence about having been the paternal grandparents’ doctor and terminating that relationship following positive tests for cocaine. She described both grandparents’ medications as “serious” and “habit-forming”, requiring a “process” if one were to wean off those medications. She was clear about the limits of her expertise, stating she was not an expert in drug-related issues. I had no difficulty with her evidence.

[16] Andrew Emmett is a registered psychologist. The father had four counselling sessions with him before walking out of the 5th session, when he did not wish to work on issues identified in the OCL report. Mr. Emmett testified that the father was disruptive. Mr. Emmett acknowledged that he may have raised his voice in the last session.

The mother’s witnesses

[17] The mother testified and called the maternal grandmother, K.M. [the “maternal grandmother”], and her sister, C.F. [the “maternal aunt”] as witnesses.

[18] I found many aspects of the mother’s testimony credible. While she set out her concerns about the father, she was also able to acknowledge that the child loves the father and looks forward to seeing him, and that she and the father had good times as well as bad. While the father’s counsel characterized mother’s position as not knowing what she was doing when she signed the minutes of settlement (“minutes”), the mother testified that she understood the minutes and was prepared to live with the terms therein. She was, however, caught off guard by how quickly the father asked for overnight access and the fact that he intended it to take place at his parents’ home.

[19] The father’s counsel suggested that the mother was manipulating the CAS to attempt to secure a resolution different than what was agreed to during in the CLRA case. I accept the mother’s evidence that she became concerned about the timing and location of overnight access, and that the agency shared those concerns when she discussed the minutes and the father’s demand for overnight access with them. On the mother’s evidence as a whole, I do not find that she was trying to manipulate the CAS.

[20] Having said that, I had some difficulty with how the mother described her living situation. She repeatedly stated that she was “living with” her parents but temporarily “staying with” her boyfriend. However, the trial was being held in late 2019 and she had been “staying with” her boyfriend since July 2019, almost six months prior. Similarly, when asked about her plans going forward, she stated she was planning to continue to “live with” her parents, resuming residence at their home when certain renovations were complete, and that her boyfriend would not be moving with her (despite almost six months of cohabitation at the time of trial). I did not find the mother’s evidence about where she was living or her plans particularly convincing. She appeared to want to downplay the fact that she was living with her boyfriend, but it was not clear for what purpose.

[21] K.M, the maternal grandmother testified. Her evidence was largely intended to bolster the mother’s evidence regarding the father’s anger issues and difficulties when he becomes frustrated. She acknowledged that she did not believe that the father would ever hurt the child although she was less certain that he would not hurt the mother. Like the mother, the maternal grandmother’s evidence about the mother’s residential arrangements was cagey. She stated that the mother was still living at her home but staying with the boyfriend. Again, it was not clear to me why both the maternal grandmother and the mother would try to make out this distinction.

[22] C.F., the maternal aunt, also testified. I found her evidence of marginal utility. She had a very limited ability to observe the father, acknowledging that she had visited the parents’ only five times after the child’s birth and before separation, and that on only three of those visits was the father present. However, the court did note her evidence that she said she saw the mother every two weeks or so and was not aware of any sleep issues on the part of the child.

The father’s witnesses

[23] The father testified and called his mother, D.J. [“the paternal grandmother”] as a witness.

[24] I had difficulty with much of the father’s evidence both in terms of credibility and substance.

[25] The father repeatedly stated that he had a “bad memory” and that he couldn’t “recall” when questioned on issues that might not be favourable to him. When challenged about this, he stated that his brain is “not the greatest” and that he “does games” to help his memory improve. I agree with the CAS that the father seemed to have a particularly difficult time remembering when questioned about issues related to the criminal charges and his anger issues. In relation to the events leading to the criminal charge in March 2019, he stated that “I can’t recall doing it.” I note that the paternal grandmother testified that the father had never told her he had memory issues and that he would have told her if he did. I find it more likely that the father’s memory is adequate but selective.

[26] The father also appeared to have at best a fluid sense of the importance of the truth. When asked why his mother would write the letter that she did to Dr. Pop about why she and the paternal grandfather tested positive for cocaine use in May 2019, he stated that he thinks people can “bend the truth once in a while,” “I think everyone does that.”

[27] As will be discussed further below, the father displayed a marked lack of insight into why his conduct on social media as well as in following the mother (and having her followed) was of concern. In the context of the father’s evidence as a whole, I do not believe, contrary to his testimony, that he regrets posting intimate photos of the mother. Little else about his evidence suggested such regret or insight.

[28] I also do not accept the father’s evidence that he did not ask his friends to keep track of when the mother’s car was seen at the boyfriend’s house. He testified that she was there 5 – 7 days per week, but also testified that he was only on C. Road about 3 times per week to go “toy-hunting” in Brantford. The father said his friends simply wanted him to know where the mother was staying. When pressed, he did acknowledge that he “might have” given them the address. None of this had the ring of truth.

[29] In my view, the father’s evidence is to be treated with caution. Where it conflicts with the evidence of other witnesses, I have preferred the evidence of those witnesses, unless otherwise stated.

[30] After some back and forth, D.J., the paternal grandmother, testified. She had been listed as an intended witness on the Trial Scheduling Endorsement Form, but when the father presented his case he stated that he no longer intended to call her. This led to some discussion about whether the agency would summons her or if the court might exercise its discretion to call her as a witness given the importance of hearing from her on the issue of use of pain medication and a letter she wrote to Dr. Pop. Ultimately, the father reconsidered and called his mother to testify.

[31] The paternal grandmother’s evidence was concerning, and I had difficulty with her credibility on some issues, although on other issues her evidence was straightforward.

[32] For example, she was candid about her and her husband’s long-term use of opioid pain medication, including sometimes crushing and inhaling that medication. She acknowledged that she sleeps during the day when she has too much pain and her “body shuts down.” She was also candid that the father never told her about apparently having memory issues and did not support the father’s claim to frequent and ongoing serious stomach issues.

[33] However, I did not believe the paternal grandmother’s evidence that the last time she used cocaine was 14 – 15 years ago, in the face of her positive cocaine test in May 2019 and her shifting evidence about when her husband last used cocaine. Initially she said her husband had last relapsed with cocaine in May 2019, and later in her testimony she said it was one month ago. She said she lied when she wrote a letter to Dr. Pop in May 2019 stating that the positive drug tests might be because the paternal uncle smoked crack cocaine in the basement, and it was coming through the heating vents. Her explanation for the letter was that she did not want to lose her doctor. On balance I find it difficult to assess when the paternal grandmother was telling the truth, when she wrote the letter, at trial, or perhaps neither.

[34] In light of the significant credibility issues, I reject the paternal grandmother’s evidence that she was not asked by the CAS worker, Ms. Cooper, to see the bedrooms in the home, and accept that of Ms. Cooper that she asked and was told the bedrooms were off limits.

Affidavit and other documentary materials

[35] The court received and marked as exhibits four affidavits sworn by Children’s Aid Society witnesses. The author of each affidavit testified and was made available for cross-examination.

[36] In addition, the court admitted documentary evidence including but not limited to:

a. the Information and Recognizance relating to criminal charges against the father; b. the father’s Form 35.1 in the CLRA proceeding; c. correspondence from the Children’s Aid Society to the father; d. the report of the OCL clinical investigator in the CLRA proceeding; e. final minutes of settlement in the CLRA proceeding; f. brief of social media posts and communications by the father; g. the paternal grandmother’s July 2019 handwritten letter to Dr. Anca Pop; h. a copy of the father’s Facebook profile.

Background and findings of fact

Background

[37] The parents, who are currently both in their early 30’s, had a relationship from the year 2000 when the mother was 15 and the father was 16. They dated as teenagers, separating for the first time in 2006, and getting back together in 2010.

[38] There was an incident between the father and the mother’s then-boyfriend while the parties were separated in 2006. The father was charged. How the matter was resolved was unclear on the evidence but the father currently has no criminal record.

[39] Sometime in 2011 the mother and father started living together. For a period of time they lived with the paternal grandparents.

[40] The father is a tradesperson and works through a union for different employers. He has had periods of unemployment. He is in the process of obtaining his Red Seal. The mother completed high school. She has worked for an agency in the community.

[41] The parties lived on M. Street in Brantford from 2012 until 2016. In 2016 they moved to B. Avenue in Brantford.

[42] In […] 2017, while living on B. Avenue, their daughter was born. I accept the mother’s evidence that she was the primary caregiver of their daughter while the parties were together.

[43] The mother says the parties separated in February 2018. The father says it was in March 2018. By March 10, 2018, the mother moved out of the parties’ home with the child and went to stay with the maternal grandparents nearby. Sometime subsequently, the father went to stay with the paternal grandparents.

[44] After separation, from March to August 2018, the parents arranged for the father to spend time with the child. Visits were usually Saturday, Sunday, and Monday for a couple of hours, sometimes in the park or sometimes at the maternal grandparents’ home. The parties agree that the mother generally stayed with the father and the child during these visits although the father does not describe the visits as “supervised” per se.

[45] Custody and access proceedings were started. On August 3, 2018 a temporary consent order was made providing for joint custody and an access schedule for the father, namely Thursday, Saturday, and Sunday for 2 hours. There was no restriction on where the father could take the child, and the evidence was that some of his parenting time took place at the paternal grandparents’ home.

[46] The temporary order also provided for the appointment of the Office of the Children’s Lawyer.

Volatile relationship

[47] The mother’s description of the parties’ long relationship suggested it was volatile. The father said it was a great relationship except when it wasn’t.

[48] In 2006, the father was charged in relation to threats made to the mother’s then-boyfriend. The father could not recall whether he was convicted but stated that he had been placed under terms by which he was not to contact the mother or the boyfriend for a year.

[49] The mother testified that between 2012 and 2019, there was an incident in which the father was upset and kicked the mother and the paternal grandmother out of the parties’ home one evening. The mother said she tried to get back in through a window, and that the father closed the window on her arm. The father stated that the incident was in 2012 during a period of time that he was suffering from vertigo but denied closing the window on her arm. In any event, in 2018, this incident led to a historical assault charge against the father.

[50] In 2018 the mother reported to the police that the father threatened to shoot her and her family. Specifically, she testified that he stated: “I’m going to shoot myself, no, shoot you and your family.” There were no charges. The mother stated that she told the police at the time that she did not believe the father was about to “load the guns.” At the same time, she did not feel it was a normal reaction to stress and anger. She acknowledged in cross-examination that she did not believe the father would shoot her otherwise she would not have gone on living with him.

Initial involvement of the Children’s Aid Society

[51] On November 18, 2018, while in the care of the mother who was staying with her boyfriend, the child fell down several stairs. The mother took the child to the hospital and called the father. The mother told the father that the fall took place at her boyfriend’s house, but she would not disclose the location of that house. The father became very angry.

[52] The child did not sustain any serious injuries.

[53] The following day the father called the Brant Children’s Aid Society. That agency contacted the Haldimand and Norfolk Children’s Aid Society.

[54] The Haldimand and Norfolk Children’s Aid Society became involved with both parents. The agency accepted the mother’s explanation for the child’s fall. “Well-baby checks” were conducted on November 23, 2018 and December 12, 2018. The society had no concerns about the mother’s parenting.

OCL releases its report

[55] The OCL released the report of its investigation in the CLRA matter on January 15, 2019. The investigator, Dr. Crump, had met with both parents, and conducted observation visits in each of the parents’ homes.

[56] The report identified no concerns with the mother’s parenting.

[57] The report stated that the father was warm and engaging with the child, that he was attentive and stayed focused on his daughter.

[58] However, the report also expressed concern about the father’s ability to self-regulate and commented that he deals poorly with stress and anxiety. The investigator noted that he became angry when she contacted him after the first scheduled appointment and that he did not attend for the final meeting with her because he was “too stressed.”

[59] The investigator found that the father could parent for limited periods but would require supports to move into expanded parenting time.

[60] The investigator recommended sole custody to the mother and community-based access to the father. She suggested that the father’s parenting time could expand to overnights after completion of ten counselling sessions to learn appropriate coping and “social thinking” skills. She also recommended completion of the “Triple P” parenting program, and that the father secure his own accommodation. She testified that the latter recommendation was in response to the father’s stated desire to live on his own.

[61] As noted above, the OCL investigator did not have access to all of the grandparents’ home and was not aware that the paternal uncle lived in the basement. She was also not aware of the extent of the grandparents’ ongoing pain issues and related drug use. She was not aware of the storage of guns on the premises.

Father’s social media presence between the November 2018 and March 2, 2019

[62] After the child’s fall on November 18, 2018, the father posted inappropriate communications about the mother online, including intimate photos of her. He also posted derogatory comments, repeatedly referring to her as a “whore.”

[63] Although he denies this, the evidence is that during this period the father followed the mother in his vehicle, kept track of the mother’s whereabouts, and had his friends report back to him about where she was staying.

[64] This is very concerning conduct.

[65] On November 23, 2018, five days after the child’s fall and the mother’s refusal to say where her boyfriend lived, the father changed his profile picture to a photo of a Magnum handgun which he said was a gift to him from the paternal grandfather. He stated that the gun could not be formally transferred to him until he obtained his restricted handgun licence. On Facebook he posted “What’s the best thing about a revolver? Get to using your criminal side for this one.”

Final minutes of settlement in the CLRA matter

[66] On February 20, 2019, the parties attended court for what was anticipated to be a short appearance. Both parties were represented, although the mother was assisted by an agent for her lawyer, who was not present. The parties used the opportunity at court to negotiate a final settlement, using the mother’s offer to settle as a framework for discussion. The parties entered into final minutes of settlement providing for custody to the mother, and specified access to the father. The minutes of settlement [“minutes”] contained the following relevant paragraphs:

15. (a) If the Respondent requests to exercise one overnight access on the Respondent’s alternative weekends, he shall provide proof of: suitable accommodations for the child (possession of a crib or playpen, highchair, and toys, etc.) which shall be fulfilled by the respondent providing pictures of these items. (b) The parties will confer with each other on all issues relating to suitable accommodations for the child for overnight access purposes.

16. The parties may mutually agree to such further and other access including overnight access.

[67] The mother’s evidence about her perspective on entering these minutes was contradictory. On the one hand she stated that she felt pressured and overwhelmed and was not comfortable with the order when made; on the other, she stated that she knew what she was doing and intended to live by the order. She stated that although she wanted a different order, she felt that she did not have sufficient evidence about her concerns regarding the father to move forward to trial in the CLRA matter.

The father requests overnight access

[68] The father stated that he was “super happy” about the final order. He promptly obtained the items set out in the minutes at paragraph 15 and requested overnight access.

[69] The mother became very concerned. She did not expect that the father would request overnight access so soon, and not while he was living with his parents. She stated that she had been assured that he would not request overnight access while living with his parents. The father denied giving this assurance.

[70] In late February 2019, the mother received a letter from the Chief Firearms Officer indicating that the father had applied to either renew or obtain a gun licence. The father approached the mother to sign a document so that he could obtain a restricted firearms licence. The mother did not sign the document.

[71] On February 23, 2019, there was an incident during the exchange of the child at Dalhousie Place. Each party relayed the event differently. The mother was at Dalhousie Place in a vehicle with the maternal grandmother. For some reason, the maternal grandfather was also there, in a different vehicle. Words were exchanged between the parents. The father allegedly sped out of the parking lot with the child in his car, followed by the maternal grandfather in another vehicle. The father, followed by the maternal grandfather, ended up at the police station. The mother and maternal grandmother subsequently arrived at the police station by which time the father had left. No charges were laid.

[72] On February 27, 2019, the mother told the society that the father had requested overnight access and told them about her concerns. On February 28, 2019, the society requested a copy of the custody order and of the OCL report.

[73] On March 1, 2019, the mother met with Ms. Bond and Ms. Cooper at the society and further detailed her concerns about overnight access with the father at the paternal grandparents’ home. The mother testified that at that time the society explained the process of bringing the child to a place of safety and starting the court proceeding. The society workers told the mother not to respond to the father if he contacted her and said that an officer would be sent to the father’s home that day to make him aware of the steps being taken.

The father’s arrest

[74] The mother contacted the police about the father having followed her in her car and about the online posts. On March 1, 2019, the police warned the father not to contact the mother further.

[75] On March 2, 2019, after having been warned by the police, the father messaged the mother on the parenting application they were using. He signed the message “Cheers, you dumb C.” On advice from the CAS, the mother called the police.

[76] When the mother met with the police, they asked her about previous incidents between the parties. The mother told them about the incident in which she said she tried to get back in through the window and the father closed the window on her arm.

[77] The father was arrested and charged with criminal harassment in relation to the conduct vis-à-vis the mother after the child’s fall. In addition, he was charged with one count of assault “between 2012 and 2019”, which the parties agree relates to the incident in which the mother tried to get back in through the window.

[78] The father was released on a recognizance which required that he reside with the paternal grandfather, that he not communicate directly or indirectly with the mother, that he not attend within 500 metres of any location where the mother might be, that he not attend at the mother’s boyfriend’s home, and that he not possess weapons.

[79] The mother acknowledges that the father has not breached the recognizance.

[80] At the time of the trial, the outcome of the father’s criminal proceeding was not known, although it was anticipated that it would be resolved on the basis of a peace bond. The father testified that he would agree to the peace bond due to the legal costs of the family and criminal process. He stated that he does not believe he is guilty of anything.

The CAS starts its child protection application

[81] There is a conflict in the evidence about when exactly the society decided to intervene through court proceedings. The mother says that the decision to intervene was made March 1, 2019 when society workers explained to her the process for bringing the child to a place of safety (her home) and starting proceedings, and before the father’s arrest. Society worker Ms. Cooper indicated that the CAS decided to intervene as a result of the criminal charges on March 2, 2019, combined with the mother’s concerns discussed at the meeting with the mother on March 1, 2019. I accept the evidence of Ms. Cooper in this regard.

[82] In any event, on March 5, 2019, the society started this child protection application. A temporary without prejudice order was made on consent placing the child in the care of the mother under supervision with access to the father in the society’s discretion.

The father’s access after the CAS intervened

[83] The society made efforts to meet with the father. After some back and forth, the worker met with the father on April 3, 2019. In May 2019, the father started having supervised access with the child at the society. The father has had access through the society since that time, although he has been inconsistent in exercising it.

[84] Access was initially 4 hours per week, expanded to 5 hours, on Fridays at the society. In October 2019, visits were moved to Saturdays at the father’s request due to employment obligations. The Saturday visits are 3 hours in length.

[85] The father has missed a notable amount of access time, for a range of reasons. I accept Spencer Logan’s evidence that between May 31 and October 2, 2019, the father missed approximately 8 visits which were to be supervised by him. On several occasions the father cancelled without providing a reason and on at least two occasions he cancelled while the child was on the way to the office. Several of the missed visits may have been due to employment obligations. While the trial was ongoing, the father missed a further visit.

[86] The father frequently stated that he was not feeling well on access visits. On all three visits supervised by Emily Kunkel, the father reportedly had stomach troubles. On one visit he vomited 20 minutes into the visit and left after one hour. On four visits supervised by Spencer Logan, the father also complained about pain in his stomach. More will be said about this below.

[87] At the same time, when the father attends access, the evidence is that he demonstrates certain parenting strengths. Mr. Logan testified that the father is playful, interactive, and affectionate. He often uses positive language with the child, brings toys and gifts, and if something arises during access, he is quick to resolve it. Similarly, Ms. Kunkel testified that the father came prepared to the visits, that he brings snacks, that he handled diaper changes with no issues, and that he engaged in play during the visits.

[88] Both access supervisors did express some concern about the father sometimes being distracted by his cellphone during visits, and that from time to time the father would make negative comments about the mother’s care of the child. On one occasion, the father apparently also had a phone discussion with a friend where he referred to attending a “piss-up”.

[89] Mr. Logan noted in his evidence that the access centre is generally a safe environment and not a challenging place in which to parent. No difficult parenting events took place during the father’s time at the supervised access facility.

[90] The mother testified that at about the same time that access started at the agency, the child started having night terrors, as well as some behaviours after access. She seemed to suggest both that this could be due to child responding to having access with the father at the agency, but also suggested that this might be due in part to a shift on the child’s nap time caused by the access arrangements. While in general, I found the mother’s testimony to be credible, I do note that her sister, the maternal aunt, was unaware of any sleep issues of the child although she testified that she and the mother saw each other every two weeks. In any event, the mother testified that the sleep issues seemed to be improving as of the date of the trial.

Father’s participation in services and cooperation with the CAS

[91] The OCL investigator recommended that the father participate in ten counselling sessions to assist with developing coping mechanisms and “social thinking” skills. She also recommended the Triple P parenting course.

[92] Under the two temporary orders in this proceeding, the father was to participate in programs recommended by the society including a mental health assessment, counselling, family doctor’s appointment, Triple P parenting program, and the Caring Dad’s program.

[93] As at the trial, the father had completed an online version of the Triple P parenting program, four counselling sessions and four parenting education sessions. He did not complete the other requirements.

[94] The father abruptly cut short his counselling with Mr. Emmett during his fifth session when he became angry at Mr. Emmett for suggesting they needed to focus on the issues outlined in the OCL report. The father stormed out of the session and several days later called to advise that he would not be continuing counselling. At the same time, he terminated his involvement with Ms. Wood, a client support worker at the same centre, who had been working with the father on parenting programing.

[95] The father completed neither the Caring Dad’s program nor the mental health assessment.

[96] In general, the father was not cooperative with the CAS overall. For example:

a. The father would not allow a complete tour of the home where he was staying. Ms. Cooper was not permitted to see either of his parents’ rooms (except briefly looking in the door of the paternal grandfather’s room to see the gun cabinet), or the basement where his brother was living. b. The father refused to provide the CAS worker with contact information for his brother, who lived in his parents’ home, and was on methadone. In his testimony he stated that he wanted to respect his brother’s “privacy.” I found this interesting given his lack of concern for the mother’s privacy demonstrated by his social media posts. c. The father did not sign a consent for a criminal record check when requested to do so by the CAS. In his testimony he stated that he felt it wasn’t necessary because he had a gun licence (which he said would require that he have no criminal record) and that in any event that CAS could get it themselves.

[97] Overall, the father showed little interest in completing programing which could assist him in addressing anger issues, assist in managing anxiety, or better regulating his emotions. Asked during the trial whether there were issues he could work on in counselling he stated “how to be nice to people who don’t deserve it.” He was unpersuaded that the programs recommended to him by the OCL or which formed part of the temporary orders in this proceeding were necessary.

The father’s guns

[98] As noted above, the father is a gun owner. He testified that he owns two guns: a 12-gauge shotgun and a 1950’s Russian SKS. He testified that these are currently locked in a gun safe under his father’s supervision. Under the recognizance he is not permitted to possess firearms, which is why, he says, the weapons are in the possession of the paternal grandfather and stored by him.

[99] In addition to these guns, the father testified that he was gifted a Magnum handgun by the paternal grandfather. He testified that the gun would not be formally given to him until he obtained a restricted firearms licence. The paternal grandmother’s evidence about the handgun was consistent with the father’s with respect to the provisional nature of the gift. She said that it was “supposed to be” the father’s birthday present.

[100] The paternal grandmother testified that to her knowledge the handgun had never been taken out of the safe. However, on November 23, 2018, the father changed his Facebook photo to be a picture of his hand holding the handgun. This was five days after the child’s fall. Asked about his decision to use that photo as his profile picture, he said he just wanted to show his friends that his father had purchased a handgun for him. He said that he likes the gun and it is “very nice.” The gift had been given to the father for his birthday in September 2018, yet the photo was posted some two months later, just days after the argument with the mother when she would not disclose her boyfriend’s address. In his testimony, the father showed no insight into how the posting of this photo could be seen as a threat to the mother.

The father’s claimed stomach issues

[101] The father testified that he has suffered from stomach issues since he was a teenager and that doctors have not been able to determine the cause. He said that he is in pain all the time and experiences a loss of appetite and vomiting. The father told the CAS that stomach pains were a cause of a number of the missed access visits.

[102] The father also stated that using marijuana assists him with his stomach pain, but that the requirement that he not use cannabis for 24 hours before visits has resulted in him having stomach pains before and during visits with his daughter.

[103] It is difficult to know what to make of this evidence. In cross-examination, it became apparent that the father has not taken steps to have the issue addressed medically. He said he went to doctors about this when he was a teenager (in other words, at least 13 years before the trial and possibly longer). In terms of seeking treatment presently, he said he did not have time because of the court proceeding, yet there was also evidence that before his current job he was going “toy-hunting” in Brantford three times per week, which one would think would be time-consuming and less important than diagnosing and treating his stomach issues.

[104] The father could not identify who his doctor is, stating “bad memory, I couldn’t tell you.” Dr. Pop, however, gave evidence that the father continued to be her patient, although she had not seen him since 2013, at least six years before the trial.

[105] The paternal grandmother did not appear to be aware of the father’s claimed stomach issues, although the father lives with her. She testified that she had seen him have stomach pain only once in the last year and confirmed that he is home on week-nights and weekends so she would have occasion to see him frequently. This would suggest that she would be aware if he were suffering as described.

[106] The evidence is uncertain as to whether the father truly suffers from undiagnosed stomach issues or whether this has become an excuse for missing access or cutting access short. If he does have significant stomach pain, it is unclear why he is not taking active steps to have the issue diagnosed and treated given his claimed level of pain and incapacity.

[107] In any event, when asked about what he would do if he had stomach pains during time with his daughter, he stated that he would call the child’s mother to assist.

Concerns regarding the paternal grandparents and their home

[108] The father currently lives with the paternal grandparents. Under the recognizance, he is required to do so. However, the father’s Form 35.1 filed in the CLRA proceeding, confirms that at least since June 2018, it has been his ongoing plan to reside with his parents and brother.

[109] Neither grandparent signed a consent for a criminal record check although they were requested to do so by the CAS.

[110] As at the date of the trial, although the father expressed a desire to secure his own accommodation, he had not developed a plan to make that happen. He stated that finances prevented him from taking this step.

[111] The evidence is that the paternal grandparents have both suffered from long-term, serious pain issues. The paternal grandmother suffers fibromyalgia and arthritis and has been unable to work outside the home for many years due to the severity of the pain. She also testified that she has a fatty liver. She is on anti-depressants. The paternal grandfather experiences serious pain arising from two accidents. Notwithstanding his pain issues, he works full time outside the home.

[112] The paternal grandparents described their pain to Ms. Cooper as “excruciating.”

[113] The father testified that the paternal grandparents had been addicted to prescription pain medication over many years. The paternal grandmother acknowledged same. She stated that she and the paternal grandfather had sometimes ground up their pain medications to sniff them because that gave relief more quickly.

[114] Dr. Pop testified that to the best of her recollection, the paternal grandmother’s pain medications included oxyneol and lorazepam. The paternal grandfather’s medications included Trintellix, hydromorphcontin, and oxyneol. Dr. Pop described these medications as “serious” and “habit forming”. She stated that there would be a concern if use of these medications were to stop suddenly. Dr. Pop stated that the paternal grandparents had been using these medications for at least ten years. The paternal grandfather’s dose was stable, but the paternal grandmother would request increased dosages. Dr. Pop stated that side effects of the medications used by the grandparents may include difficulties concentrating, nausea, vomiting, constipation, cognitive impairment, and drowsiness.

[115] The paternal grandmother stated that she used these pain medications for approximately 30 years. She stated she had also been on oxycocet and was presently using the anti-depressant, Cymbalta. She also stated that the paternal grandfather suffers from depression.

[116] Both paternal grandparents have also used cocaine. The grandmother’s evidence was that the paternal grandfather had used cocaine as recently as one month before the trial and that he used it about every six months. She also stated there might be times she might not know about. She said he has used his credit card to administer the cocaine when he uses it. While she testified that she had used cocaine only 14 or 15 years previously and only for a short period, I do not accept this evidence.

[117] Dr. Anca Pop testified that on May 4, 2019, both paternal grandparents tested positive for cocaine use, and at that time she terminated her physician-patient relationship with them on that basis. She testified that the possibility of a false positive test was very low. While the grandmother wrote a letter to the doctor stating that she did not know how those tests could have been positive, except that perhaps it was from their son (the paternal uncle) using crack cocaine in the basement, I find it more likely that both grandparents have been using cocaine more recently. This is a concern in terms of having a young child in the home who could come into contact with this substance. Given the significant nature of the issues it raises, I set out the text of the letter in full:

I am writing in response to your letters to H. and myself discontinuing your services of our ongoing care as our physician due to a positive result for cocaine in the urine toxicology test.

I would ask that you reconsider your decision and continue ongoing care as our physician as neither H. nor myself has knowingly breached the contract we signed agreeing that we would refrain from any other substances while receiving ongoing care for our pain treatment.

It has come to my attention that our eldest son E. has been partaking in smoking crack cocaine in our basement without our knowledge whereby we had unknowingly been inhaling the smoke that came up through the vents in the floors as there is no barrier to stop the smoke from rising into the rest of the house.

I know this to be the reason for the positive result in our toxicology test as (the father) has never touched drugs of any kind besides marijuana and he had a urine test show positive for cocaine.

We have spoken to E. on this matter and advised him that his father and I do not appreciate having to pay the price for his use of this or any other drug. We advised if he is unable to stop using on his own then he will need to do detox as we will not be placed into this position again either with yourself or another physician.

H. and I are more than willing to do urine tests every Saturday morning in order to satisfy this pattern and prove our innocence.

[118] The paternal grandmother testified that she and the paternal grandfather had only three weeks previously stopped using their pain medications and gone on suboxone. She said that for her, this was because she had been on pain medication for 30 years and it was time to give her body a break. She said that she and the paternal grandfather are now attending a clinic and do not have a new family doctor. The apparent decision to go on suboxone coincides roughly with when the prescriptions of Dr. Pop for the pain medications would have stopped and with the commencement of the trial (the paternal grandmother stated that Dr. Pop provided four months of prescriptions when terminating the doctor-patient relationship). The paternal grandmother stated that her pain remains consistent and that she now takes Aleve or Tylenol arthritis to deal with it. She said it is difficult to be active because of the pain.

[119] I have serious concerns about the paternal grandmother’s credibility and am not at all convinced that either her or her husband’s addiction to pain medication is over. Even if the parental grandparents’ transition to suboxone is sustainable over time, and it would be my hope for them that it is, at this stage any recovery from long-term addiction to pain medication is very, very early. Further, the evidence was that the paternal grandfather used the illicit drug, cocaine, as recently as one month before trial.

[120] The father’s brother, the paternal uncle, lives in the basement of the paternal grandparents’ home in an area that is not separated from the rest of the house by a locked door. The paternal uncle has been a drug user and is currently on a methadone treatment program. It was unclear from the evidence whether he has “carries” at this point in time. While both the father and the paternal grandmother attempted to minimize the potential impact of the paternal uncle residing in the home while having drug issues, stating that he is “always gone” and working long hours, the fact that his area of the home is not separated from the rest of the home means that a young child could access his living area, which could pose a risk to her.

[121] The OCL investigator, Dr. Crump, did not express any particular concerns about the paternal grandparents’ home as a location for access, but as noted, did not appear to be aware of the ongoing drug issues, and seemed to have accepted the father’s statements to her that the concern was historical. She did not insist on seeing all of the home and was not aware that the paternal uncle was residing in the home, or of his drug issues. She also accepted that the father’s statements that he was planning to move out of his parents’ home without exploring his plans (or lack thereof) further. Dr. Crump’s views in relation to the paternal grandparents’ home were based on limited knowledge and must be treated with caution.

[122] There was little evidence in the trial about the paternal grandparents’ home overall. The evidence is that it is a three-bedroom home with the paternal uncle’s area in the basement, the father having a room upstairs. Neither the paternal grandparents nor the father permitted the CAS workers to go inside the paternal grandmother’s room or the paternal grandfather’s room. While the paternal grandmother stated that they were not asked, I accept the evidence of Ms. Cooper that she asked and was told that their rooms were off-limits. There is a gun safe in the paternal grandfather’s room. The paternal grandmother stated that this safe is locked. The CAS workers were not able to verify.

[123] The father did not show any insight into why parenting time at his parents’ home would pose a risk to the child. In stating that he would not rely upon his parents or his brother to assist with the child’s care, he explained that this is because they have “busy lives”, rather than recognizing the risks associated with drug use.

The father’s anger issues and lack of insight regarding his conduct towards the mother

[124] The father has difficulty regulating his emotions and may respond inappropriately when he becomes angry. This appears to be a longstanding issue. The incident that lead to the historical assault charge, the threat to shoot the mother and her family in 2018, choosing to unilaterally cut off therapy in 2019 knowing that he was under a court order requiring his participation, swearing at the CAS worker, engaging his friends in surveillance of the mother, and toxic posts about and communications with the mother – these all point to a parent who is not able to manage his anger and emotions.

[125] The mother tendered copies of the father’s social media posts and communications with her. Those posts are foul and concerning. The father showed remarkably little insight into the derogatory nature of his posts or why they are wholly inappropriate, both as a former spouse and as a father.

[126] In his online communications, the father repeatedly referred to the mother as a “whore.” Although he attempted to suggest that some of these were not references to the mother, but to other unnamed women he had dated (he stated “unfortunately I attract whores, I have run into quite a few of them”), this was not believable.

[127] Confronted with having referred to the mother as a “dumb C” in the communication on March 2, 2019, he defended this by stating that he “only” used the letter “C”. While he stated that he had developed better judgment “gradually for the last few years,” that was not evident in the trial.

[128] Confronted with an intimate photo posted by him of the mother in her lingerie, accompanied by the statement “Shots fired. I smashed this and when I did I made this my dumpster,” the father said this meant that he and the mother had had a relationship and had had sex. The father would not acknowledge that being referred to as a “dumpster” would be offensive. He stated that this would not bother him and suggested that it was the same as him being short his whole life.

[129] The father did state that he was ashamed of having posted the photos because he wouldn’t want someone to do that to him. In the context of his utter lack of insight into the offensive nature of his communications to and about the mother, this apparent contrition was not credible. Asked about the current charges, he stated that he did not believe he was guilty of anything, and that he would accept a peace bond due to the legal costs. This confirms his lack of insight.

The father’s plan or lack thereof

[130] Notwithstanding the issues raised by the grandparents’ long-standing opioid drug use and the concerns about the paternal uncle’s basement space being accessible, the father did not have a plan for when he might reside on his own. He stated that he needed to save about $3,000 to make this happen but could not estimate how long that would take. He said that financial issues arising from the cost of the criminal proceeding as well as this proceeding stood in the way of any plan to move out.

[131] It may be that the father is facing legal costs arising out of this proceeding and the criminal proceeding. However, he swore his Form 35.1 in the CLRA proceeding (setting out his plan to live with his brother and parents) well before the bulk of those costs was incurred. The court is not convinced that finances are the only obstacle to the father obtaining his own residence.

[132] The father was not able to identify any other location where he could spend his parenting time, other than taking his daughter to the park or birthday parties or shopping. He did not identify friends or family who might have homes where he could spend parenting time, pending the plan to move out.

[133] The father was also not able to identify any friends or family members who could be present for access exchanges or for access, were the court to order supervised access.

[134] The father had no plan to complete the counselling that he had started. There was no indication that he planned to take any anger management programming as recommended by the OCL or as set out in the two temporary orders in this proceeding.

[135] The father stated that he would like to have access from Saturday to Sunday and that he would not use his parents or brother as caregivers. He stated that he would work with the CAS if he has to and that he would follow any rules imposed by the court, including communication rules, alcohol or drug restrictions, or a weapons ban.

Access availability at Dalhousie Place

[136] The parties submitted a statement of agreed facts on the narrow issue of how much supervised access would be available through Dalhousie Place, an access facility external to the CAS. There are several locations: Simcoe, Brantford, and Hagersville. The statement of agreed facts indicates that most clients are able to have one two-hour visit per week or every other week, but if there is no waitlist, a parent might be offered multiple time slots. The maximum cost is $30 per visit which is divided between parents.

[137] I note that the mother testified that on a go-forward basis she is content to transport the child to access at Dalhousie Place but that she will be working on alternate Saturdays and could not transport the child on those days.

Legal Considerations

Initial findings on a child protection application

[138] On October 16, 2019, the parties consented to the following findings under section 90(2) of the Child, Youth, and Family Services Act [CYFSA]. No evidence was tendered which suggested the court should not accept these findings:

a. The child’s name is A.C.J., and her date of birth is […], 2017; b. The child is not a First Nations, Inuk or Metis person; and c. The child was removed from the care of Ms. K.H., on March 1, 2019 at 70 T.C. Drive, in T., Ontario. At this time [the mother’s] home was designated a place of safety allowing [the child] to remain in the care of her mother.

Finding in need of protection

[139] On a child protection application, the court must first ascertain whether the child is in need of protection, before turning to the questions of disposition and any access arrangements.

[140] In this case, the CAS seeks a finding that the child is in need of protection under section 74(2)(b) of the Child, Youth, and Family Services Act, which provides as follows:

74. Definitions (2) Child in need of protection – A child is in need of protection where, (b) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person’s i. failure to adequately care for, provide for, supervise, or protect the child, or ii. pattern of neglect in caring for, providing for, supervising or protecting the child.

[141] In cases where the society is alleging that the child is in need of protection due to physical harm or a risk of physical harm, the following principles have been applied:

a. The Society must prove causation by act, omission, or pattern. It is not necessary to prove intention: Jewish Family and Child Service v. K.(R.), 2008 ONCJ 774 at 28, affirmed at Jewish Family and Child Service v. R.K., 2009 ONCA 903, 2009 CarswellOnt 7908; b. Physical harm caused by neglect or error in judgment is still physical harm. However, it must be more than trifling physical harm. Children's Aid Society of Niagara v. P.T., 2003 ONSC 2397, 35 R.F.L. (5th) 290 at 60; Children's Aid Society of Rainy River v. B.(C.), 2006 ONCJ 458, 2006 CarswellOnt 7548 at 17; c. Harm caused by neglect or error in judgment comes within the finding: Children’s Aid Society of the Niagara Region v T.P., 2003 ONSC 2397, [2003] O.J. No. 412 at 65, 2003 CarswellOnt 403; d. The risk of harm must be real and likely, not speculative: Children's Aid Society of Rainy River v. B.(C.), 2006 CarswellOnt 7548 at 19, 2006 ONCJ 458, 2006 CarswellOnt 7548; Children’s Aid Society of Ottawa-Carlton v. T. and T., 2000 ONSC 21157, [2000] O.J. No. 2273, 2000 CarswellOnt 2156 at 8; e. A child may be at risk even if the conduct is not directed specifically towards that child: Catholic Children's Aid Society of Metropolitan Toronto v. O.(L.M.), 1995 ONCJ 6216, 1995 CarswellOnt 4393, 1995 ONCJ 6216; f. Limited capacity of the parents may lead to harm or risk or harm if there is an inability to sufficiently acquire or improve parenting skills: Children's Aid Society of Hamilton v. O.(E.), 2009 ONSC 72087, [2009] O.J. No. 5534, at paras. 211-215, 2009 CarswellOnt 8125.

[142] The society alleges that there is a risk that the child will suffer physical harm due to three issues:

a. concerns regarding substance use and conditions of the home in the paternal grandparents’ home where the father resides; b. concerns regarding the father’s parenting capacity; and c. concerns regarding the father’s emotional regulation.

[143] The mother’s position echoes that of the society, adding that concerns also arise from the father’s unwillingness to heed instruction and recommendations of “authority figures”; his failure to prioritize his daughter in his life; his inability to commit to past and future court orders due to an undiagnosed memory condition, and; an undiagnosed stomach condition which limits his ability to spend time with the child.

[144] The father’s position is that the child is not in need of protection. He asserts that there has been no physical harm to the child and further that there is no risk of physical harm. He points to the evidence of child protection workers and access supervisors to the effect that he is loving and appropriate with the child. He states that he would be responsible for the child, not his parents or brother when the child is in his care.

[145] Having reviewed the evidence carefully, I find that this young child is at risk of physical harm as set out in section 74(2)(b), for the following reasons:

a. The home in which the father resides, and from which he has not articulated a plan to move, is not safe for a young child at this time. The evidence is that both paternal grandparents have experienced long term addiction to pain medication which has been used both in tablet form and ground into a powder and sniffed. There is evidence confirming the use of cocaine by the paternal grandfather as recently as one month before the trial. While the paternal grandmother testified that she and the paternal grandfather stopped using their multiple pain medications three weeks before she testified, her evidence was not credible overall. Even if it were the case that the paternal grandparents are making efforts to address long term addiction to pain medication, any recovery is nascent at best. b. As noted above, the maternal grandmother denied that use of cocaine was the cause of her positive drug test in May 2019. She hypothesised that her positive cocaine test could have arisen from handling the paternal grandfather’s credit card which he apparently used to sniff cocaine. If this were the case, it is reasonable to expect that a young child could similarly come into contact with surfaces in the home (such as the credit card) which have been contaminated with cocaine. c. The evidence is that the paternal uncle, who resides in the home in an area that is not separated from where the paternal grandparents reside and therefore accessible to the child, also struggles with addiction issues. He may currently be on methadone. He may or may not currently have “carries.” As set out above, the paternal grandmother wrote a letter to Dr. Pop in July 2019 stating the paternal uncle uses crack cocaine in the basement. While the paternal grandmother testified that she was not truthful in the letter, the status of the paternal uncle’s addiction issues is a serious concern. He did not make himself available to meet with CAS workers and the father did not provide contact information for him, prioritizing the paternal uncle’s “privacy” over the CAS being able to investigate issues that relate to the child’s safety. Further, Dr. Pop testified that the paternal uncle is no longer her patient due to use of cocaine while being prescribed opioids. d. The overall safety of the home has not been verified. The CAS worker was denied access to significant parts of the home. This is important in the context of the drug use and the need to ascertain and verify how any pain and other medications are stored. It is also important in a context where there are weapons in the home. Although shown a gun cabinet, the CAS worker was unable to verify whether the cabinet was locked and how ammunition might be stored. e. The father has demonstrated certain parenting strengths in a supervised setting, namely that he is responsive to the child’s cues, affectionate, and has been, for the most part, appropriate during supervised access visits. However, the father, in evidence, seemed oblivious to any risks the paternal grandparents’ drug use might pose to a young child. While he stated he would not rely on his parents or his brother to assist in care of the child, he said this is because they are “busy” and have “their own lives”, rather than recognizing risks in the home. This is a parenting capacity issue. If the father does not recognize the hazards and risks in the home in which he resides, there is a real risk that he will not take steps to ensure the safety of his daughter at all times in that home. As seen, although ordered by the court and recommended by the OCL and society, he has not followed through on programing which would assist him in building capacity in this regard.

[146] In the child protection application, but not pursued in its written submissions, the CAS also sought a protection finding on the additional ground of risk that the child is likely to suffer emotional harm, demonstrated by serious risk of anxiety, depression, withdrawal, self-destructive behaviour, or delayed development resulting from the actions, failure to act, or pattern or neglect on the part of the child’s parent or the person having charge of the child.

[147] Caselaw has established that this is one of the more difficult grounds for the society to establish. See for example Children’s Aid Society of Algoma v. A.B., 2018 ONCJ 831 at para 12, wherein the court stated that “the society must show that there is a risk that the child will suffer at least one of the emotional harms specified in the subsection. The harms are anxiety, depression, withdrawal, self-destructive or aggressive behaviour, or delayed development.” See also Children’s Aid Society of Algoma v. J.B., 2019 ONCJ 6, in which the court stated: “Although no actual emotional harm symptoms need to be shown, the society cannot rely on only the existence of reasonable grounds to believe that a risk exists. This ground requires the society to show that the risk does exist, and to do it on the balance of probabilities. ‘Risk’ has been said to mean ‘more likely than not.’” Expert evidence is often but not always required, to establish risk of emotional harm.

[148] While I am concerned about the father’s demonstrated challenges in regulating his emotions and his difficulties with anger, I am unable to find that there is a risk of emotional harm within the relatively narrow meaning of 74(2)(h), having regard to the case law interpreting this section.

[149] Having said that, I am very concerned about the father’s conduct towards the mother and lack of ability to regulate his emotions and control his anger. This includes his threats (as in 2018 when he threatened to shoot her and her family), following the mother and arranging to have her followed between November 2018 and March 2019, disparaging posts on social media, and his concomitant lack of insight when confronted with those behaviours.

[150] In my view there is a risk that a parent who demonstrates such lack of emotional regulation could expose the child to anger and inappropriate communications such as those thus far levelled at and about the mother. That the mother did not believe that the father would actually shoot her and her family, for example, does not detract from the emotional risk to the child should such statements be made at some point in her presence. Similarly, were the father to continue to use social media to “express his feelings” about the mother, there could be a risk of harm to the child were she to view such content.

[151] The statutory section, however, speaks to very specific emotional impacts – anxiety, depression, withdrawal, self-destructive or aggressive behaviour, or delayed development of the child. Expert evidence may be required. The evidence did not establish a risk of the specific enumerated harms to the child within the meaning of the statute.

[152] For all of the reasons set out above, I find that the child is in need of protection under section 74(2)(b) of the Child Youth and Family Services Act. For clarity, while I have made comments regarding risk of emotional harm, I make no finding in that regard and have determined that the risks in relation to section 74(2)(b) are sufficient such that the finding in need of protection is made on that basis alone.

B. DISPOSITION

Legal Considerations

[153] Sections 101 and 102 of the CYFSA set out the orders available to the court where a finding in need of protection has been made and where the court is satisfied that intervention through a court order is necessary to protect the child in the future.

[154] Section 101(1) provides the option of a supervision order for a period between three and twelve months. Section 102 provides the option of a custody order which is deemed to be a custody order under section 28 of the CLRA. Under section 102, the court may make any order respecting custody that could be made under section 28 of the CLRA, including a restraining order under section 35 of the CLRA.

[155] If making a supervision order under section 101(1)(1), sections 101(2) and 101(3) respectively provide that the court must consider the efforts of the society to assist the child before the intervention and must consider less disruptive placements.

[156] Section 101(8) provides that a court may make a finding that a child is in need of protection but may ultimately determine that a disposition order is unnecessary to protect the child in the future.

[157] The governing factor when considering the placement of a child is the child’s best interests. Best interests are to be determined with reference to the following factors:

74(3) Best interests of the child 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.

Custody versus a Supervision Order

[158] In this case, all parties agree that the appropriate disposition involves the child residing full time with the mother and the father having access. The question is whether this should be in the context of a return to the existing custody order made on February 20, 2019; through a supervision order under section 101; or through a new custody order under section 102 of the CYFSA.

[159] Having found that the child is in need of protection, the father states that the court should apply section 101(8) to the effect that the parties simply return to the operation of the final order made in the CLRA proceeding on February 20, 2019.

[160] Failing that, the father argues that the court should make a supervision order rather than a custody order. He asserts that if the society remains involved he will be able to have more access than if a custody order were to be granted and supervised access through an external agency were to be ordered. He believes that under a supervision order he would be able to have access at least once per week, but that if the society is not involved, he would only be able to have access every other week, assuming a third-party agency is required to supervise.

[161] The father does not argue that a supervision order is required in respect of any aspect of the mother’s parenting. He does not suggest that a supervision order would give him access to programming to address anger or other issues or that he seeks the assistance of the CAS in any way.

[162] A supervision order is not necessary in this case. The mother’s parenting does not require supervision. Society worker Ms. Cooper testified that she had no concerns about the mother’s parenting skills. The mother, by agreement, will have full time care of the child. To maintain the society’s involvement in this context would be unduly burdensome on the mother and not necessary to maintain the safety of the child. Terms can be crafted within a custody order which will maintain the safety of the child.

[163] Further, the father did not comply with the terms of the temporary supervision order made July 16, 2019. Specifically, he did not, for example, complete counselling, participate in a mental health assessment, or complete the Caring Dad’s program, as required under paragraph 1(u) of that order. Asked in oral evidence whether he could benefit from counselling or other programming, he responded (as I have set out above) without conviction that he could learn “how to be nice to people who don’t deserve it.” Even under his own narrow formulation, he has not taken steps in that regard. There is little basis to expect that a supervision order would result in the father pursuing such programming.

[164] The father also did not attend access consistently, with the effect that even though he had the opportunity for access once per week through the society, he was seeing the child considerably less than that. For the quantity of access to be a basis for a supervision order does not make sense in this context.

[165] It is not sufficient to simply return to the CLRA order made February 20, 2019. This is so because that order puts no limitations on where the father’s parenting time may take place, and under that order, overnight parenting time would commence immediately (while he still resides with his parents). Given the protection concerns set out above, that is not appropriate.

[166] Accordingly, as set out below, the child shall be placed in the custody of the mother and shall reside primarily with her, on the further terms set out below. This is the disposition that is in the child’s best interests, having regard to the factors set out in section 74(3) of the CYFSA, including but not limited to: the child’s needs, stage of development, the importance of having a secure place as a member of a family, and the child’s ties to her mother.

Access

[167] The society seeks an order that access take place in a supervised context only, at a third-party agency (the suggestion is Dalhousie Place Access Centre). The argument is that the father’s lack of parenting capacity and lack of emotional regulation, combined with the risks in his parents’ home, militate against access in a non-supervised context. The agency highlights the father’s limited engagement with the society through programing and his lack of any demonstrated interest in managing his anger and emotions, and that fact that he has only parented in a supervised context since May 2019. The society argues that the supervised access environment of the agency is an “easy” environment in which to parent and that the father has not demonstrated that he is capable of safe parenting in a more challenging environment. The mother similarly seeks an order that access be supervised.

[168] For the time being, access must continue to take place in an agency-based supervised setting. This is so for a number of reasons, including:

a. The father’s lack of insight into the risks in his parents’ home, which suggests a lack of insight into what would constitute an appropriate location for access more generally. Access at the paternal grandparents’ home, whether day access or overnight access, poses a risk of physical harm to the child. All three other adults in that home have suffered or may continue to suffer from long term addiction issues; b. The father’s failure to suggest any other locations where access could take place, other than “parks, birthday parties, or shopping.” He had no proposal for access at a community centre, library, swimming pool, early years centre, or other public facility. Asked directly by the court, he was unable to suggest any friends of other family members at whose homes access could take place; c. There was no evidence that the father has had overnight access with the child since the parties separated, or that he has cared for her for more than a few hours alone; d. The father did not complete programming required by the temporary court order in this proceeding and recommended by the OCL investigator, including Caring Dads and counselling to address anger issues; e. The father has difficulties regulating his emotions, angers easily, and has made seriously inappropriate statements to the mother. I am concerned about the father’s ability to regulate his emotions when caregiving in a less secure environment than a supervised access facility; f. Any access arrangement which results in direct exchanges between the parents, risks exposing the child to the father’s inappropriate communication with the mother; g. While I understand the father’s concern that he might have less access through Dalhousie Place than he technically has had access to through the CAS, given the amount of access he has missed that was available to him, I am not prepared to give significant weight to this concern. I am prepared to order weekly access if it can be accommodated through one or more of the Dalhousie Place locations.

[169] Dalhousie Place offers access time on alternate weekends on Saturdays or Sundays (the father’s evidence was that weekend rather than weekday access was preferable given his employment obligations), but that access could be made available more frequently so long as there is no waiting list. More than one Dalhousie Place location may be utilized. The order below is for weekly access at Dalhousie Place so long as this can be accommodated by that access centre. My suggestion is that Sunday access take place on weekends when the mother is working Saturdays, and Saturday access on the weekends that she is not.

[170] The father should understand that supervised access in an agency setting need not be long term, if he takes steps to address the protection concerns identified. The evidence is that the father can be loving and appropriate with the child. If he takes steps to address his living situation, and his difficulties with anger and communication, he may be able to move beyond agency-based access to unsupervised day access, eventually expanding to overnight access.

Other terms

[171] At trial, the father testified that he would: follow any rules the court might make; that he would not leave the child in his parents’ care if ordered not to; that he would follow any order not to possess a firearm; that he would follow any order that he not consume drugs or alcohol; and that he would follow any rules about communication with the mother the court might make.

[172] A number of other terms have been sought in the mother’s alternative order, relating to communication between the parties among other issues. Most of those terms are appropriate insofar as they relate to parenting, except as modified below in the order section of this decision.

[173] I find it appropriate that the parties communicate about parenting matters related to the child through a parenting application, in particular AppClose, which the parents previously agreed to use when they signed the final minutes on February 20, 2019. If the parents agree, they may use another parenting application such as Our Family Wizard if they both prefer.

[174] I also order, pending any variation in the event of a material change, that the father shall not attend within 100 metres of the mother’s place of residence or place of employment without the mother’s prior written consent.

[175] Non-emergency communication shall be through the parenting application, as set out above. Only in the event of an emergency may the parents communicate by telephone.

[176] Pending further order of the court in the event of a material change of circumstances, the father shall not possess a firearm.

[177] These parenting arrangements are variable in the event of a material change, on notice to the CAS. While it would be within the purview of the judge hearing such a variation to determine what constitutes a material change, I would suggest at a minimum that:

a. the father have secured his own accommodation; b. that he have provided the mother with photographs of same; and, c. that he have pursued and completed programming to address his evident anger management difficulties. I reiterate the recommendation of the CAS that pursuing the Caring Dad’s program would be important.

[178] The child support and related terms sought in the mother’s draft order cannot be ordered in this application. The mother and father are encouraged to discuss child support terms through counsel, failing which the matter should proceed in family court.

C. CONCLUSION AND ORDER

[179] For all of the reasons set out above, this court makes the following order:

1. The child, A.C.J., born […], 2017, who is not a First Nations, Inuk, or Metis child, is in need of protection under section 74(2)(b)(i) and (ii) of the Child, Youth, and Family Services Act;

2. The mother, A.H. shall have custody of the child pursuant to section 102(1) of the Child, Youth, and Family Services Act, on terms set out below;

3. The child welfare agency for the jurisdiction in which the child resides shall be served with any motion to change this order at least 30 days before any scheduled court date.

4. The terms of custody shall be as follows: a. The mother shall not move the child’s residence outside Norfolk or Brant counties without the prior written consent of the father or a court order; b. The mother may apply for or renew identity documents (social insurance number, health card, passport, etc;) without the father’s consent or signature; c. The mother may travel with the child outside Ontario but within Canada without the father’s consent, but as a courtesy she shall provide written notice to him in advance of travel if travelling outside Ontario with the child; d. The mother shall seek the father’s prior written consent for travel outside Canada with the child, at least 30 days before such proposed travel, such consent not to be unreasonably withheld. She shall provide the proposed travel times, temporary accommodation details, phone number, and if applicable flight numbers when seeking consent; e. The mother shall have three non-consecutive weeks of uninterrupted summer parenting time with the child each year. She shall advise the father by May 1 of each year, commencing in May 2020, of her chosen weeks; f. Commencing March 14, 2020, or as soon as the access can be accommodated by Dalhousie Place, the father shall have two hours of access each weekend, on either Saturday or Sunday, based on the availability through Dalhousie Place, at the locations to be identified by the father (Brantford, Simcoe, and Hagersville, Ontario). g. The parties shall both promptly complete any paperwork required by each location of Dalhousie Place selected by the father, to commence the father’s access. h. Pending further court order, the parties may communicate only as follows: i. They may communicate through AppClose, or, if the parties agree in writing, through another online parenting application; ii. They may communicate through a third party if one can be mutually agreed upon through counsel; iii. They may communicate through counsel; and, iv. They may communicate directly by telephone only in the case of an emergency affecting the child. i. Neither party shall denigrate the other parent or allow others to do so within earshot of the child; j. Neither party shall denigrate the other on social media platforms; k. To the extent that the parties are permitted to communicate under this order they shall do so in a civil, respectful and child-focussed manner; l. Pending further court order, the father shall not attend within 100 metres of the mother’s place of residence or place of employment without the mother’s prior written consent (through the parenting application shall suffice); m. Pending further order, the father shall not possess a firearm.

Madsen J. Date: March 9, 2020

COURT FILE NO.: FC-19-FO-21 DATE: 2020-03-09 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Children’s Aid Society of Haldimand and Norfolk, Applicant and – K.H., Respondent mother R.J., Respondent father

REASONS FOR JUDGMENT

L. Madsen, J. Released: March 9, 2020