The Children’s Aid Society of the Districts of Sudbury and Manitoulin v. A.H. and D.L., 2020 ONSC 2704

COURT FILE NO.: AP-96-2020 DATE: 2020-04-30 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

The Children’s Aid Society of the Districts of Sudbury and Manitoulin Applicant – and – A.H. and D.L. Respondents

COUNSEL: Robin L. Saari, for the Applicant Samantha Prescott, for A.H. Trent Falldien, for D.L.

HEARD: April 27, 2020

DECISION ON MOTION

Gauthier J.

Introduction

[1] On April 17, 2020, Wolfe J. of the Ontario Court of Justice, at a temporary care hearing, ordered that the child, A.L., born […], 2019, be returned to the care of the respondent mother, A.H., subject to the supervision of The Children’s Aid Society of the Districts of Sudbury and Manitoulin (the “Society”).

[2] The Society has appealed that decision. It has also brought a motion for an order, pursuant to s. 121(4) of the Child, Youth and Family Services Act (“CYFSA”), staying the order of Wolfe J. The motion requests that:

…the child, A.L. [sic], born […], 2019, remain in the interim care of T.O [sic] and M.L. [sic] subject to the supervision of the Children’s Aid Society of the Districts of Sudbury and Manitoulin pending the hearing of the Appeal.

[3] I heard that motion, by way of conference call on April 27, 2020. I reserved my ruling on that motion.

[4] What follows is that ruling.

Facts

[5] A.H. is a 29 year old Laurentian University student with a history of mental health issues.

[6] D.L., also 29 years old, has a history of mental health concerns, anger issues, and prior domestic violence against a partner. D.L. has been receiving counselling assistance from Dr. Valliant.

[7] The parents were cohabiting at the time of A.L.’s birth. In late October 2019 D.L. allegedly assaulted A.H. while A.L. was in the home. On November 10, 2019, D.L. punched holes in the wall of the couple’s residence. A.H. left the residence and contacted Crisis Intervention. She went to a place of safety with the child.

[8] The Society became involved with this family as a result of the November incident and A.H. and D.L. have separated.

[9] D.L. was charged with assault, confinement and mischief. A no contact order was made as part of the bail order.

[10] A.H. entered into a Voluntary Service Agreement with the Society on November 19, 2019. The child A.L. remained in her care.

[11] On January 1, 2020, the child sustained an injury to her face, specifically to the bridge of her nose and on the inside of her upper lip, while in the care of A.H.

[12] The Society worker observed the injury to the child on January 2, 2020. It appears that A.H. brought the bruise to the worker’s attention.

[13] The child’s day care provider also observed the bruise and referred the matter to the Violence Intervention and Prevention Program (“VIPP”). The child was taken to hospital and examined.

[14] The child was discharged from hospital on January 4, 2020, after all testing conducted came back without any identified concerns for continued hospitalization.

[15] On January 8, 2020, the child was brought to the Health Sciences North VIPP where Dr. Corbeil conducted a follow-up examination of the child’s face and body, including the child’s mouth.

[16] The report from Health Sciences North contains the following note:

A.L. is a healthy 3 month baby that presents with swelling/bruising to the bridge of her nose and bruising to the inner and lower lips near the frenulum. These findings are highly suspicious of inflicted non accidental blunt force trauma. A certain amount of force would be required to result in these types of injuries. The mechanism of injury of her face hitting the floor is possible. It would have also resulted in her being in pain, crying out and seeking to be consoled. Other factors to consider are surface o which she could have hit and if there were hard objects around.

A certain amount of velocity or force is required for self infliction with a toy from the exersaucer….

[17] On the consent of A.H. and D.L., the child was placed in the care of T.O. and M.L., T.O. being a professor and friend of A.H. This was to be a temporary arrangement until January 6, 2020.

[18] The Society, being concerned with A.H.’s mental health history, D.L.’s history, the child’s recent injury, and with the parents’ disregard for the no contact order, commenced protection proceedings on January 9, 2020.

[19] On January 10, 2020, Lische J. made a temporary order that the child be placed in the interim care of T.O. and D.L., subject to supervision by the Society. This order was “Without Prejudice”.

[20] On April 17, 2020, a temporary care and custody hearing was conducted before Wolfe J. and it resulted in the order being appealed from.

The Society’s Position

[21] The Society’s concerns are outlined in its factum, and in addition to the suspicious nature of A.L.’s injuries (for which no satisfactory explanation has been provided by A.H.), include concern about historical mental health issues suffered by both parents, their apparent inability or unwillingness to abide by the no contact order, and the domestic violence exhibited in the parties relationship. Finally, the Society alleges repeated inconsistencies with information and outright misinformation, as well as a lack of cooperation in providing mental health information.

A.H.’s Position

[22] Firstly, A.H. submits that contrary to the allegation that she has provided changing explanations for A.L.’s injury, in fact, she was offering possible explanations for the child’s injury because she did not witness the occurrence of the injury. According to A.H., the child was being watched by D.L.’s step-father for a brief period of time during which A.H. was outside having a cigarette. When she came back into the room, she observed the child crying and later observed the bruising. A.H. offered that possibly the child had hit her face during “tummy time”. As she did not witness the event that caused the injury, A.H. was not in a position to describe the event. The Society has mischaracterized the possible explanations put forward by A.H. as being “changing” stories.

[23] It is also notable that Dr. Corbeil’s report indicates that “the mechanism of injury of… face hitting the floor is possible”.

[24] When D.L. became violent and punched holes in the wall of the residence, A.H. reacted appropriately by leaving with the child, going to a place of safety, and contacting crisis intervention and police. A.H. suggests that her actions demonstrate her ability to properly react to situations and to take proper steps to protect her child.

[25] A.H. submits that the Society’s concerns about her mental health are based on historical incidences going back as far as when she was 15 years old. She concedes that she has been diagnosed with Borderline Personality Disorder and Depression at the age of 15, that more recently (i.e. December 2018) she was diagnosed with Bipolar Disorder and Anxious Distress, that she struggled with eating disorders from the age of 15 to 18, and attended treatment for same, that she overdosed on Tylenol four years ago, that she has been abstaining from alcohol for four years after having sought treatment for substance and alcohol abuse, and that she self-harmed four months before becoming pregnant with A.L.

[26] A.H. points out that she has and continues to be under the care of Dr. Scott Carmichael, Psychiatrist, and has contact with him on a regular and ongoing basis. As recently as December 2019, Dr. Carmichael has reported that there is no indication that there are any safety concerns regarding A.L.

[27] A.H. has been following Society recommendations regarding counselling, programming, and parenting courses, and has completed the Triple P: Positive Parenting Program.

[28] A.H. concedes that she and D.L. did not obey the no contact order for the first two weeks after it was made, however, after having been cautioned by the Society about the consequences of not following the order, she has ceased her contact with D.L., and is committed to complying with it.

[29] She is properly equipped to have A.L. returned to her, and she is following all governmental and medical Covid-19 protocols and directives.

[30] A.H. submits that Wolfe J. considered all of the evidence that was before her and gave appropriate weight to same. Her reasoning reveals no error and, accordingly, the Society has no grounds on which to argue a successful appeal.

[31] The motion judge appropriately assessed all of the Society’s concerns at the temporary care hearing and found that the Society was unable to establish that A.L. could not be protected under the terms and conditions of a supervision order.

D.L.’s Position

[32] D.L. supports A.H.’s position that A.L. should be returned to her care.

[33] With regard to the child’s injury, D.L. maintains that neither he nor A.H. knows how the injury was sustained. To the extent that any explanations by the parents have changed, D.L. submits that he and A.H. were simply trying to offer possible explanations because neither of them knows how A.L.’s nose and mouth were injured.

[34] D.L. suggests that the Society is relying entirely on Dr. Corbeil’s report (which was not filed as an expert report, but rather was made an exhibit to the Society worker’s affidavit), which report offers no conclusion about the injuries. It states that the injuries are “highly suspicious”, however, the report does not suggest that either parent caused the injuries or did anything malicious or negligent with regard to the child. The report makes no mention of any child protection concerns with regard to A.H. or D.L.

[35] Any protection concerns vis-à-vis the parents were addressed by Justice Wolfe in the terms and conditions of the supervision order made on April 17, 2020. Any possible risk to A.L. thus has been adequately addressed.

[36] D.L. points out that he signed a consent for the Society to access his records with Dr. Valliant in September 2019 and has never revoked that consent. He is not responsible for any difficulty that the Society may be having in obtaining those records.

[37] D.L. suggests that Dr. Corbeil’s opinion is hearsay. The report does not include the doctor’s qualifications. The parents were unable to test the evidence relating to the child’s injuries.

[38] D.L. seeks face-to-face access to A.L., whom he has not seen since March 3, 2020. The Society has cancelled all face-to-face access during the current Covid-19 situation.

Wolfe J.’S Order of April 17, 2020

[39] Wolfe J. ordered that A.L. be returned to A.H., subject to the supervision of the Society and subject to eleven detailed and specific terms and conditions, including conditions guaranteeing that the Society had unfettered access to A.H.’s home and to the child A.L.

[40] The motion judge’s reasons disclose that she was aware of the statutory purposes of the CYFSA. She concluded that the risk of harm to A.L. was nothing more than speculative. She found that the evidence presented by the Society was insufficient to satisfy her that the child could not be adequately protected by the terms and conditions of a supervision order.

[41] Wolfe J. noted the young age of the child and remarked that “the timing is critical for bonding …” between A.L. and her parents.

Issue

[42] Whether the Society has met the three-part test to be applied when considering whether or not to stay a court order.

Analysis

[43] There are three components to the test to be applied when considering whether or not to stay a court order:

a) An assessment of the merits of the case to ensure that there is a serious issue to be tried;

b) An assessment of whether the applicant would suffer irreparable harm if the stay is refused; and

c) An assessment as to which of the parties would suffer greater harm from the granting or the refusal of the remedy pending a decision on the merits.

See Sherman v. Drabinsky, [1997] O.J. No. 2735.

[44] The test is to be applied within the context of the paramountcy of the best interests, protection, and well-being of the child, which is the stated paramount purpose of the CYFSA.

[45] The Act also references the need to recognize the following:

While parents may need help in caring for their children, that help should give support to the autonomy and integrity of the family unit and, wherever possible, be provided on the basis of mutual consent.

The least disruptive course of action that is available and is appropriate in a particular case to help a child, including the provision of prevention services, early intervention services and community support services, should be considered.

[46] The circumstances to be considered in making an order in the best interests of a child are set out at s. 74(3)(c) of the Act, and include the following:

a) The child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs;

(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; and

(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.

[47] I turn now to the first prong of the aforementioned three-part test, the assessment of the merits of the case to determine whether there is a serious issue to be tried. This is a lower standard than the need to demonstrate a strong prima facie case. See RJR-MacDonald Inc. v. Canada (A.G.), [1994] 1 S.C.R. 311.

[48] The Society’s grounds for appeal are the following:

a) The motion judge failed to give sufficient weight to the unexplained injuries to the infant despite the credibility issues regarding both parents;

b) The motion judge failed to appreciate the evidence of the repeated breaches of court orders and failed to assess how this would impact on the ability to protect the child;

c) The motion judge failed to assess the strengths and weaknesses of the parents’ plans including whether they would ensure the child is protected from harm;

d) The motion judge placed too much weight on the parents’ evidence without considering the significant credibility issues; and the motion judge failed to consider that there was critical evidence missing with respect to the parents’ mental health and related treatment and relied upon their statements despite credibility issues.

[49] I will address each of these in the context of whether there is a serious issue to be tried.

Insufficient Weight to Unexplained Injuries

[50] The evidence before the motion judge was that there was no direct description of how A.L. was injured, by either of the parents. There was however, some direct evidence to suggest that A.L. hit her head or bumped her head on a toy while she was being watched by D.L.’s father, J.G. It appears that neither parent was present when that occurred. There is no evidence of inappropriate or abusive conduct of either parent toward the child. There was no attempt to hide the child’s injuries. In fact, the evidence is to the contrary.

[51] The “expert report” of Dr. Corbeil is, in fact, a note from Health Sciences North VIPP, dated January 27, 2020. Dr. Corbeil found the injuries to be “highly suspicious of inflicted non accidental blunt force trauma… requiring a certain amount of force”; however, she also found that “the mechanism of injury of her face hitting the floor is possible”. I note as well that Dr. Corbeil identifies a further concern, that is “delay in seeking medical attention when the bruise was noted”. According to A.H.’s evidence, the Society worker, when she observed the bruising on the child, simply told A.H. to keep an eye on it. There is no evidence that A.L. required medical attention at that time.

[52] In addition to the above, the motion judge did have the evidence of Dr. Carmichael that there were no safety concerns regarding the child.

[53] Based on the evidence before her, Wolfe J. was entitled to find that “it does not disclose a risk of harm to the child that is anything more than speculative”. This finding is entitled to deference.

[54] I have considered the Society’s submission that Wolfe J.’s finding that any discrepancies in the description of the events by A.H. were as a result of her being scared and suspicious of the Society, is without evidentiary foundation. Even if I accept that submission, it does not render the motion judge’s findings on the issue of the child’s injuries less worthy of deference.

Evidence of Repeated Breaches of Court Orders

[55] The evidence discloses the existence of one no contact order resulting from the incident in November 2019. There is no evidence of any breach of any order made under the CYFS by A.H. or D.L.

[56] The parents acknowledged having breached the no contact order but indicate that they have not done so recently. The motion judge was entitled, on the evidence before her, to find that Hurtubise had “a credible understanding” of the order and that it was not optional. The judge was also entitled to find that that the evidence did “not disclose any concern that the respondent mother is unable or unwilling to cooperate with the Society…”. This finding is entitled to deference.

Failure to Assess the Parents’ Plans

[57] While there is no direct reference to the plans, in the motion judge’s reasons, there is a recognition that Hurtubise appeared to be following through on her counselling and attending bi-weekly appointments with Dr. Carmichael, and, taking her medication as prescribed. The reasons further refer to the ability of the parents to follow Covid-19 Guidelines. The terms and conditions reflect A.H.’s willingness to comply with conditions and her plan to continue to access assistance.

Motion Judge Placing Too Much Weight on Parents’ Evidence

[58] A. H. acknowledged that there was violence in her relationship with D.L., and that D.L. requires ongoing assistance with mental health issues.

[59] I have already commented about the parents’ willingness to be bound by the no contact order.

[60] Wolfe J. did not accept that the parents had provided misinformation. She considered the evidence offered by the Society with regard to this allegation. She did not accept it. She was entitled to do so on the evidence.

Failure to Consider Missing Evidence Re Mental Health

[61] The Society has the report or note of Dr. Carmichael about A.H. being stable and there not being any safety concerns regarding A.L. The fact that the Society was unable to obtain any additional records from the psychiatrist because he was away, does not result in an adverse finding against A.H.

[62] As well, the Society relied heavily on A.H.’s historical mental health issues, which the judge did not find compelling. She was entitled to that finding.

[63] On the first part of the three-part test, I conclude that the Society has failed to establish that there is a serious issue to be tried. I have already commented that the motion judge was entitled to make the findings she did, and to conclude that A.L. could be adequately protected by a supervision order with numerous and stringent conditions.

[64] I come to that conclusion notwithstanding the Society’s submission that the motion judge imposed too high a burden of proof on the Society by indicating that she was “not satisfied that the Society has established that there is a probable (my emphasis) risk that the child will suffer harm if returned to the care of the respondent mother”.

[65] Section 94(4) of the CYFSA refers to “reasonable grounds to believe that there is a risk that the child is likely to suffer harm and cannot be protected adequately by an order...”.

[66] The use of the word “probable” by the motion judge does not in any way suggest that she applied the wrong test in her assessment of the evidence.

[67] Wolfe J. was clear that the Society had not met its burden of establishing that there were reasonable grounds to believe that there was a risk to A.L. that could not be adequately addressed by a supervision order. She found as she was entitled to do, that the Society’s concerns were speculative:

The evidence demonstrates a credible understanding by the respondent mother that the no-contact order between her and respondent father is not optional and it must be followed. It does not disclose any concern that the respondent mother is unable or unwilling to cooperate with the Society, and, most importantly, it does not disclose a risk of harm to the child that is anything more than speculative. (my emphasis). This addressed the concerns raised by the Society. The terms and conditions of the supervision order reflected the judge’s appreciation that there needed to be a level of supervision to address any risks in having A.L. [sic] returned to A.H.’s [sic] care.

Conclusion

[68] I conclude that there is insufficient merit in the Society’s appeal to justify a stay of Wolfe J.’s order of April 17, 2020. I need not address the balance of the three-part test.

[69] Accordingly, the Society’s motion dated April 21, 2020, is dismissed.

[70] I turn now to the father’s request for in-person, supervised access to the child.

[71] I understand D.L.’s concern and his wish to have meaningful, in-person contact with the child. The motion judge’s reasons did address the issue of the suspension of in-person parenting time, and the need for the Society to expand access as mobility restrictions lessen. I am not prepared to dictate to the Society how it is to discharge its duty to provide supervised access to A.L. or deviate from Wolfe J.’s Order which continues in full force and effect and provides for access to occur twice weekly.

The Honourable Madam Justice Louise L. Gauthier Released: April 30, 2020