Court File and Parties

Bracebridge Court File No.: FC-18-274-01 Date: 2020-04-06 Corrected Date: 2020-04-06 Superior Court of Justice – Ontario

Re: Simcoe Muskoka Child, Youth and Family Services, Applicant And: C.B. and J.B., Respondents

Before: McDermot J.

Counsel: Lauren Doughty, for the Applicant Danielle Bertin, for the Respondent, C.B. J.B. not present and unrepresented

Heard: April 2, 2020

Corrected Endorsement: The text of the original Endorsement was corrected on April 6, 2020 and the description of the correction is appended.

Endorsement

[1] C.B. and J.B. are the parents of three children. Their two oldest children, R. and L. are two girls 6 and 4 years of age respectively. They were apprehended about January 7, 2019 and have resided with a maternal aunt, M.J.B. and her husband, J.O. since shortly after that date.

[2] This motion, however, did not involve those two children but rather the Respondents’ youngest child, G. She is an infant, born only on March 24, 2020 and apprehended at birth by the Applicant Society. G. has also been placed with her siblings in the care of the mother’s aunt and her husband.

[3] The Society has amended its Application on several occasions. The latest amended Application seeks an order placing the children including G. in the custody of the present kin caregivers subject to supervised access to the mother, C.B. Although J.B. was given a chance to become involved in these proceedings, he has been noted in default on earlier amended applications. When he was served with this motion and the last Amended Application, he indicated that he was in favour of the Society’s plan to place G. in the care of the mother’s aunt. He did not appear at the argument of this motion.

[4] The Society brought this motion on as a temporary care hearing concerning G. C.B. raised the issue of access to G. in the event that she was not returned to her care.

[5] The issues before the court were therefore as follows: a. Should G. be placed in the care of the Society’s designated caregivers, M.J.B. and J.O. pursuant to s. 94(2)(c) of the Child, Youth and Family Services Act [1] or alternatively returned to the care of the Respondent Mother? b. If the Society’s motion is allowed, and G. is placed in the care of the Society, what access is C.B. to have in the child’s best interests?

[6] For the reasons set out below, I have granted temporary care of G. to the Applicant Society. Access shall be at the discretion of the Society as to supervision, duration, time and location.

Temporary Care

[7] C.B.’s older children, R. and L. were originally apprehended because of domestic violence in her household: there were numerous calls by the police because of vicious fighting between C.B. and J.B. Initially, in December, 2018, the Society had agreed to allow these children to remain in the care of C.B. on the basis that she would not permit J.B. to live in her household or be in the home when the children were there and this was confirmed by a supervision order. C.B. promptly breached that order and J.B. moved back in, resulting in the apprehension of R. and L. in early January, 2019.

[8] Domestic violence is no longer an issue for C.B. as she and J.B. have now separated permanently. However, mounting evidence of mental health issues from which C.B. is suffering from along with the refusal of C.B. to disclose the extent of these issues have become the major protection concerns of the Society.

[9] The Society says that G. cannot be returned to her mother’s care because of these issues. They rely upon the provisions of s. 94 of the CYFSA which is entitled “adjournments” and which reads as follows:

(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.

(3) Where a court makes an order under clause (2) (d) in the case of a child who is the subject of an extra-provincial child protection order the society may, during the period of the adjournment, return the child to the care and custody of the child welfare authority or other person named in the order.

(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).

(10) For the purpose of this section, the court may admit and act on evidence that the court considers credible and trustworthy in the circumstances.

[10] Effectively, unless the court can find, based upon credible and trustworthy evidence, that there are reasonable grounds to believe that there is a risk of harm to the child, she should be returned to the care of the parent from whom the child was apprehended. The court must also assess whether a supervision order would adequately protect the child from that risk of harm if the child is returned.

[11] In assessing these risks, it is to be noted that s. 93 the CYFSA permits the court to use past conduct of a person in determining the safety of a child in a temporary care hearing (although evidence only as to disposition cannot be used).

[12] Taking this into account, the Society has provided evidence of past mental health concerns which resulted in C.B.’s oldest child, C. to be found to be in need of protection during a trial in June and July of 2007. Sherr J. was the presiding judge and the case involved the Toronto Children’s Aid Society and C.B. Four days into the trial, there was a consent finding of C. being found in need of protection.

[13] Although I was referred to certain findings of Sherr J. in his trial endorsement, it appears that the endorsement I was referred to was in respect of disposition only, and that evidence therefore cannot be used under s. 93(2) of the CYFSA. However, in that endorsement, Sherr J. also confirms that, in making the consent finding that C. was in need of protection, he “found that at the time that [C.] was apprehended, [C.B.] had significant unaddressed mental health problems and, as a result, was overwhelmed by the challenges of caring for [C]”. [2] That is usable in these proceedings as these findings were made in determining that C. was in need of protection (and not respecting disposition only contrary to s. 93(2)).

[14] That finding was made nearly 13 years ago, and C. is now an adult. And there is some evidence that, once C. was taken out of her care, C.B. was able to resolve some of these issues. In 2013, when C.B. gave birth to R., there was evidence that C.B. had resolved her mental health issues to the extent that she was permitted to care for R. after birth. Similarly, when L. was born in 2015, “no worries were noted” and the Toronto society noted that C.B. “appears to have good insight into her past and realizes that she was too young to care for her first child”. [3] Ms. Bertin argued that the decisions of the Toronto Society in 2013 and 2015 are evidence that C.B. is able to presently care for her infant daughter, G.

[15] Although the Respondent Mother’s 2007 mental health issues appear to have been resolved by the times of the birth of her second and third children, this is, unfortunately, not the case at present. There was observable evidence of mental health issues which were unaddressed by the material filed by the Respondent Mother in this motion. These actions consisted of bizarre statements or actions by the Respondent Mother or excessive discipline of her children during access which made no sense. Included in the evidence provided by the Society is the following: a. On January 16, 2019, soon after the children were apprehended, C.B. “stated that she had masturbated and her hip popped back into place, so she was now able to walk the girls to school.” [4] b. On October 1, 2019, the access supervisor observed the mother appearing to be incoherent, and talking to herself or another imagined person in the access room. On that day, she observed that C.B. “sat at the table and appeared to be talking to herself; she said the Father's name and made reference to someone thinking they are ‘superior,’ ‘vicious,’ ‘come on, don't I ever do anything good,’ ‘whatever.’” [5] c. During the October 1 visit, when L. was painting and mistakenly touched the wall with a paint covered finger, C.B. told L. that she would have to clean the walls with a tooth brush and appeared to have smeared paint onto L.’s face to teach her a lesson. d. On January 10, 2020, when L. attended a visit not feeling well, C.B. later called the worker accusing M.J.B. of poisoning the children with methadone. e. On February 25, 2020, C.B. discussed drains with the children, and “told the children ‘remember Pennywise, the water will take us to the drains, we'll get stuck in the drains like Pennywise.’” [6]

[16] Based on the observations of the Society workers, there are, on the face of things, indicia of mental health concerns on the part of C.B. which raise the spectre of a risk of harming the children. Again, unfortunately, the Respondent Mother is not cooperating in assisting the Society in determining how extensive these issues are. She says that she is obtaining counselling and psychological assistance, yet refuses to provide consents which would allow the Society to speak with and obtain reports from C.B.’s caregivers to determine the extent of her mental health problems. The only consent C.B. has provided is in respect of one resource, and then only to determine whether she has attended sessions. The Society has offered to fund a Parenting Capacity Assessment, but C.B. refuses to agree to this or to participate in the assessment. There is no way for the Society to confirm what problems the Respondent Mother may have, whether she is compliant with medication needs or, indeed, what those medications are. The Society cannot confirm as to whether the mental health concerns constitute a risk to the children, especially an infant who is just days old. The only means of obtaining this information is self-reporting from C.B. which is not trustworthy, especially if there are unacknowledged mental health concerns. And the court must ask if C.B. is refusing to provide consents, what does she have to hide? Why is she refusing to consent to the release of records if they would not disclose that there are concerning problems with C.B.’s mental health?

[17] Ms. Bertin suggests that if this is a concern, then the court should order the child to be returned subject to a requirement that C.B. sign the consents requested by the Society. This is, unfortunately, too little too late. The consent would only permit the Society to commence that portion of their investigation and it would be some time before records became available, especially if the caregivers were not coming to work or avoiding the office because of Covid-19. The providing of consents is only a first step; had C.B. signed the consents earlier on, the information necessary to address the Respondent Mother’s behaviour may have been before the court today. At this late date, the obtaining of consents does not satisfy the protection concerns of the Society; it only allows the Society to commence investigating as to whether they are valid.

[18] Ms. Bertin suggests that, although C.B. proved unable in the past, and continues to have difficulty in addressing her older children’s needs, this is not the case with G. who is an infant. She notes that on two previous occasions, in 2013 and 2015, the Toronto Society determined that C.B. was able to address the needs of R. and L. when they were infants and this should apply to the present situation.

[19] The situation in 2013 and 2015 is different from the present day. The affidavits indicate that at the time of R. and L.’s birth, C.B. had “good insight” into her mental health issues. She had, at the time, “made many gains” in addressing her mental health issues resulting in her loss of custody of C. [7] The reason that the Toronto Society did not take steps is that they were satisfied that C.B. had substantially addressed her mental health issues that had surfaced in 2007 when Sherr J. considered the protection issues concerning C.B. At present, this Society has no way of assessing this issue: no consents have been forthcoming and the Society worker has been unable to speak with C.B.’s therapists or determine any recent diagnoses or treatment plans. C.B. has been unwilling to participate in a parenting capacity assessment. The situation is completely different at present.

[20] It is acknowledged that C.B. has provided some correspondence from the Canadian Mental Health Association which indicates that she is participating in addictions counselling, and that she has had one meeting over the telephone with Dr. Gelber who diagnosed C.B. with PTSD. The letter does not outline a prognosis, treatment plan or medication. There is little independent evidence made available to the court to determine that the Respondent Mother’s mental health issues have been addressed.

[21] Ms. Bertin also suggested that there would be less stress caring for an infant than there would be caring for the older two children. I disagree. Children are stressful for parents irrespective of their ages; infants place different pressures on parents than do toddlers than do school age children. An infant can be particularly frustrating if suffering from colic and not sleeping during the night. Baby G. may very well be as stressful as would be R. and L.; the stress is simply of a different nature. And the access centre notes indicate severe difficulties in C.B. managing her two older children.

[22] Finally, the issue of medical consents points out a further problem. There is little doubt that if G. were placed in the care of C.B., there would have to be a supervision order in order to protect G. in order to address further potential problems with C.B. and her parenting abilities. However, C.B. does not have a good record: in late 2018 and early 2019, she breached a supervision order by moving J.B. into her home contrary to that order. She has refused to provide consents requested by the Society. I am not convinced that C.B. would comply with or cooperate in the administration of a supervision order. Combine this with the Covid-19 restrictions, which would probably prevent or impair a worker from making announced and unannounced visits and I do not believe that a supervision order would be effective in addressing the protection concerns raised by the Society.

[23] Finally, an infant has no ability to communicate that there are protection concerns or risk of harm. Usually when harm comes to an infant, it is through a physician discovering unexplained injury to the child. There is no ability to adequately monitor whether G. is at risk in the mother’s care.

[24] C.B. suffers from apparent mental health issues which have shown themselves to the worker and to the access supervisor. I have little independent evidence that these issues are being addressed by the Respondent Mother other than some letters attached to her affidavit; those letters confirm one teleconference session with a medical person and a diagnosis. I therefore find that there is a risk of harm to the child if she were returned to the care of the Respondent Mother.

[25] Based on the Respondent Mother’s behaviour in the past, her refusal to cooperate in the provision of consents, the age of the child and the present inability to make meaningful in home visits without putting workers at risk, I do not believe that this risk to the child can be alleviated through a supervision order.

[26] There shall be an order placing the child, G. in the care of the suggested kin, M.J.B. and J.O, as requested by the Society in paragraph 2 of the Society’s motion, subject to supervision by the Society.

Access Issues

[27] Access between the mother and G. shall be based upon the best interests of the child: see s. 104(1) of the CYFSA. It is unquestioned that in normal times, it would obviously be in the best interests of a newborn child to have time with her mother and I find that this is the case with respect to G. I would normally be ordering short frequent access visits between G. and her mother, as well as some sibling access as well.

[28] Because of the Covid-19 crisis, this Society has halted all supervision of access to children in Society care or otherwise. They are not alone in this. I was advised that numerous other Societies have followed suit, including the Ottawa Society and Dnaagdawenmag Binnoojiiyag Child and Family Services, the local indigenous child protection agency. I am also aware that supervised access centres across the province have closed until further notice. The reasons for this are obvious; social distancing is essential for the health of access supervision workers and the participants in supervised access (parent and child), and it is difficult to imagine that an access supervisor could do his or her job while still remaining at least 6 feet away from the parent and child.

[29] The Respondent Mother requests access to G. as well as her other two children. Her supervised access to her older children has now been suspended because of the Society decision to terminate all supervised access. Although those two children can have access to their mother by way of Skype or Facetime visits, that is obviously not possible for G. who is an infant; for obvious reasons Facetime visits with an infant are meaningless to that infant. If access is to be supervised, then there would be no effective visits between C.B. and G. until the resumption of supervised access services by the Society.

[30] The affidavit of the supervised access worker confirms that the Respondent Mother is able to meet the basic needs of her children during access. She comes prepared with food and activities for access visits, and is consistently there for access visits. I believe that she is able to also meet the basic needs of G. during access visits.

[31] However, the affidavit is also replete with incidents where intervention by the access supervisor was necessary. These incidents included inappropriate discipline, inappropriate statements made to the children about either their father or the caregivers, as well as irrational and concerning behavior. These incidents have occurred throughout, and there has been little improvement by the Respondent Mother since her older children were apprehended. Access supervision remains necessary in the present case, not only for the two older children, but G. as well.

[32] This being the case, if there is no access supervision during Covid-19, Ms. Bertin is correct when she says that there will be no meaningful access by G. to her mother unless a solution is found.

[33] The first solution suggested by C.B. is that access be supervised by her daughter, C., who was placed in the care of the maternal grandfather in the trial in 2007. C. is now an adult and living with a maternal aunt.

[34] The reply affidavit of the worker is particularly instructive in addressing this suggestion. In that affidavit, Cristine Frasier deposes that she spoke with K.D., who is C.B.’s aunt. C. lives with K.D. at present.

[35] In that call, K.D. confirmed that C. and C.B. have not had face to face contact in two years. The last time they spoke, it did not go well; K.D. described the relationship between C.B. and C. as “challenging” and said that “their last visit was not positive.” [8] If that visit took place two years ago, then it must have been memorable. It is also concerning that there is no evidence that C.B. has even asked C. if she would supervise the visits.

[36] I do not find C. to be an appropriate access supervisor of visits between G. and C.B.

[37] The Society looked into whether the maternal aunt, M.J.B., could supervise access. According to the evidence from the Society, M.J.B. does not feel comfortable in doing so because of the numerous negative comments about her by C.B. I agree with this; it is unfair to place the child and M.J.B. in an uncomfortable and awkward situation as there is no issue that C.B. has made many negative comments about M.J.B. to the children, resulting in the access supervisor having to step in.

[38] Ms. Bertin’s second argument was that decision of the Society to cease providing supervised access because of Covid-19 takes second place to the best interests of the child. Assuming that the parties comply with the restrictions that this affliction has imposed on our society (hand washing, social distancing, isolation, etc.), the issue is whether the Society is entitled to make a determination that no access be supervised because of Covid-19 where this results, as in the present case, in a total loss of access between the mother and the infant child.

[39] Ms. Bertin relied upon Children’s Aid Society of Toronto v. M.(A.) where an infant was apprehended at birth in circumstances similar to the present case. The Society offered only two supervised visits a week, limited due to “administrative difficulties”.

[40] The presiding justice, Katarynych J., stated at para. 24 that, “ As a matter of common sense, no infant of this age and stage of development can sustain a relationship with a parent with the frequency of access provided by the society in this case.” She stated that the access offered by the Society was inadequate to maintain a parent child relationship, and that the Society’s administrative difficulties were no excuse. At para. 24, she stated,

Society counsel indicated that the society had not been able to carry out the more generous access order made in the first court appearance because of administrative difficulties. If there is to be fundamental justice to this child and his parents at this early stage of the case, the child’s needs and interests cannot be sacrificed to the society’s administrative difficulties.

[41] Later in that paragraph, Katarynych J. noted that the parties were at an interim stage only, that the result was far from certain and that, “The uncertainty of outcome makes it particularly important that the society arrange parent-and-child access in a manner that does not create an ever-widening chasm between the child and his family.”

[42] I agree that there is a positive obligation on a Society to ensure that a child have reasonable and meaningful access to a parent, especially where there has not been a disposition or finding in the case. The issue is whether the decision to cease supervised access because of Covid-19 constitutes “administrative difficulties” which should be trumped by the best interests of a child in having meaningful contact with a parent.

[43] Pazaratz J. stated in Ribeiro v. Wright, 2020 ONSC 1829 (S.C.J.) at para. 8 that, “ the well-publicized directives from government and public health officials make it clear that we are in extraordinary times; and that our daily routines and activities will for the most part have to be suspended, in favour of a strict policy of social distancing and limiting community interactions as much as possible.” I also agree with and adopt that statement.

[44] The fact that we are living in these extraordinary times has resulted in the suspension of most institutional supervised access facilities for visiting parents requiring those services. As I noted above, it is not surprising that this is the case. Social distancing is an essential part of addressing the Covid-19 pandemic, and it is difficult to imagine the ability of an access supervisor in socially distancing herself from a party during supervised access. This is especially where there is a problem between the child and the Respondent Mother warranting face to face intervention, something that has occurred frequently in the past 14 months since the older children were apprehended.

[45] Covid-19 is a particularly nefarious virus. It is a hardy virus, staying on some surfaces for more than two days. It is easily transmitted from person to person. It can cause death in a significant number of cases, and anecdotal evidence makes it apparent that any person of any age is at risk from this virus. To shut down supervised access during Covid-19 is not an “administrative difficulty”. It is, rather, a matter of life and death for some people, and at the moment there seems to be little rhyme or reason as to who is at risk and who is not. Supervised access in this case would also inevitably result in a clear breach of social distancing guidelines as recommended by both the provincial and federal government. [9]

[46] I do not find that the child’s best interests in having access to her mother warrants the court interfering in the Society’s decision to cease providing supervised access while the pandemic is underway.

[47] I realize that this deprives G. of any meaningful contact with her mother, and also deprives the Respondent Mother of time with her daughter in this very important time of life for her daughter. I am not dismissive of the losses to both mother and daughter that this entails. I am only saying that the health and safety of everyone involved in the access (including the mother and child, as well as the access supervisor) is more important than the cost to both G. and C.B. that will result from the loss of access.

[48] There shall be a temporary order as set out in paragraph 3 of the Society’s Notice of Motion, subject however to the following: a. The Society shall facilitate Skype and/or Facetime access between the Respondent Mother and the children, R. and L.; b. The Society shall review the access on an ongoing basis and expand access to include face to face (supervised) visits if deemed safe in consideration of the Covid-19 pandemic; and c. Upon supervised access services by the Society resuming, the Society shall arrange for at least three visits per week between the Respondent Mother and G., to be supervised at the discretion of the Society. At least one of those visits shall include R. and L.

[49] Because of the Covid-19 emergency this order is being issued under my electronic signature. This order is enforceable without the present need for a signed or entered formal order or judgement. Once the Court resumes normal operations a copy of this order shall be filed with the court. This order is an effective and binding order through its issuance under my electronic signature and email to the parties by the judicial assistant.

McDermot J.

Date: April 6, 2020

April 6, 2020 – Correction:

1. Para. 37 has been added.

[1] S.O 2017, c. 14 [2] Ex. A to the Affidavit of Cristine Frasier sworn March 25, 2020, p. 2, para. 5. [3] Affidavit of Cristine Frasier sworn December 20, 2018, para. 22. [4] Affidavit of Cristine Frasier sworn January 16, 2019, para. 12. [5] Affidavit of Lauren Ryan sworn March 23, 2020, para. 56. [6] Ibid., para. 52. [7] Affidavit of Cristine Frasier sworn December 20, 2018, para. 11 [8] Affidavit of Cristine Frasier sworn April 1, 2020, para. 9. [9] See, for example, https://www.ontario.ca/page/2019-novel-coronavirus#section-9 where the Ontario government recommends that, “ Everyone in Ontario should be practicing physical distancing to reduce their exposure to other people. Everyone in Ontario should do their best to avoid close contact with people outside of their immediate families. Close contact includes being within two (2) meters of another person.”