COURT FILE NO.: FC-19-FO-000098-0000 DATE: 2020-05-20

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 the Region of Waterloo, Applicant

- and -

E.B., Respondent and

S.L., Respondent

BEFORE: Madam Justice D. Piccoli

COUNSEL: Ms. Ghafoor, Counsel for the Applicant Mr. Patrick Brohman, Counsel for the Respondent E.B., S.L., Unrepresented Respondent

HEARD: May 14, 2020

ENDORSEMENT -- COVID 19 PROTOCOL

[1] AS A RESULT OF COVID-19, which has caused the suspension of regular Superior Court of Justice operations at this time, as set out in the Notice to the Profession dated March 15, 2020; the supplemental Notices to the Profession dated April 2, 2020 and April 28, 2020; and the Revised Notice to the Profession dated April 30, 2020 and the further Notices to the Profession dated May 5, 2020 and May 12, 2020 (effective May 19, 20202) available at https://www.ontariocourts.ca/scj/covid-19-suspension-fam/.

[2] Electronic materials were filed through the Kitchener courthouse email address: Kitchener.Superior.Court@ontario.ca.

[3] The Applicant (“Society”) brought a motion first returnable on May 6, 2020 seeking an order that the child be placed in its’ care and custody, seeking that access to the child by E.B., Respondent (Mother) and S.L., Respondent (Father) be at the discretion of the Society and supervised as deemed fit by the Society, that the address and phone number of the Mother not be disclosed on the Protection Application pleadings or any subsequent documents and any resulting orders. In addition, orders were sought abridging time for the service and filing and that the motion, if necessary, be heard without notice.

[4] The child who is the subject matter of this hearing is, K.B. born on […], 2020.

[5] The parties appeared before Justice Breithaupt Smith on May 6, 2020 - the first return date of this hearing. On the consent of all parties the matter was case conferenced, as opposed to argued, on that day. An interim without prejudice order was made that the child be placed in the care of the Mother as of the date upon which she is provided a residential placement at Marillac Place, subject to a number of conditions. Orders were made with respect to the Father, including that he has no access with the child except as approved by the Society, that there be no face-to-face contact between the Father and Mother and that the Father have no contact with the Mother in the presence or hearing of the child. Additionally, orders were made that the Mother’s address and phone number not be disclosed. The matter was adjourned to May 14, 2020 at 10:00 a.m. and orders were made for the filing of materials, as well as the manner in which materials were to be served.

[6] The Father was not present at this hearing. He is in Maple Hurst Correctional Facility.

[7] The Mother and her lawyer were present.

[8] On behalf of the Society, C. Purza was present.

[9] The following material was served and relied upon in this hearing:

(a) Protection Application of the Applicant returnable on May 6, 2020; (b) Notice of Motion of the Applicant returnable on May 6, 2020; (c) Affidavit of C. Purza dated May 5, 2020; (d) Affidavit of C. Graham dated May 5, 2020; (e) Affidavit of N. Elmasry Weiss dated May 5, 2020; (f) Plan of Care of the Society dated May 5, 2020; (g) Affidavit of the Respondent Mother E.B. dated May 8, 2020; (h) Affidavit of M.S. dated May 8, 2020; and (i) Affidavit of C. Purza dated May 12, 2020.

[10] The Mother concedes that the child is in need of protection.

[11] As the Mother has been unable to secure a residential placement at Marillac Place, she wished to proceed with this hearing.

[12] The Mother’s position is that the child should be returned to her care under a supervision order regardless of whether she secures a spot at Marillac Place. The Mother remains committed to entering Marillac Place when a spot becomes available but as that timing is unknown, she asks this court to return the child to her under a supervision order. She will agree to a term that she not leave the Weber Street Motel where she currently resides, for more than two hours and if she does, she will be accompanied by an approved supervisor. In the alternative, if an order is made that the child be placed in the care of the Society, she seeks frequent access to the child.

[13] The Society’s position remains, as set out in the interim without prejudice Order of May 6, 2020, namely that if the Mother secures a spot at Marillac Place, the child will be returned to her on the terms and conditions set out in that order.

[14] Given that the Mother has advised she has Métis heritage, I inquired about the status of notifying the band. I was advised that there is no band but that the Applicant is working with the Métis Nation of Ontario to determine if there is an organization that can be served.

Brief Background

[15] The Mother is 25 years of age. The Father is 28 years of age.

[16] This is the sixth child of the Mother. She has other children born: 2012 (S.W.), 2014 (S.W.), 2015 (T), 2016 (K), 2019 (C.L.).

[17] Of the Mother's five other children, four are in their respective father's care and C.L. is in the interim care of the Society. The father of C.L. is the Father in these proceedings.

[18] This is the sixth child of the Father. He does not have access to any of his children.

[19] There is very little said about the Mother’s children T. born in 2015 and K. born in 2016 other than they reside with their father and are not the subjects of this application. It is unclear how long these children have resided with their father as they do not seem to form part of the Society’s involvement with the Mother.

[20] The Mother's involvement with the Society started in 2012 when she was pregnant with her first child. At that time the mother was dealing with criminal charges and instability in her housing. In 2012 and 2013, the Mother and her eldest child resided at Marillac Place and with the father of S.W. and his family. The Mother worked cooperatively with the Society to address the concerns regarding her capacity to care for her child. The Society became involved with the Mother again in 2013, 2014, 2015, 2016 and 2018, but there were no apprehensions during that time – the children remained in the Mother’s care subject to periods of care with the Father as set out in the CLRA order.

[21] The Father was charged with assault against the Mother on May 16, 2018. The Mother denied a relationship with the Father. The police were again called in December 2018 as a result of a verbal dispute between the parties. The Mother denied the Father lived with them.

[22] The Respondents continued to deny living together despite reports to the contrary and information regarding physical domestic violence received by the Society.

[23] On February 2, 2019, the Mother gave birth to her fifth child, C.L. At that time, she gave her verbal agreement that the Father would not have access to any of the three children in her care.

[24] As the Mother refused to go into a shelter and did not believe the children to be at risk, on February 7, 2019 the children S.W., S.W., and C.L were removed from her care. The two older children were placed with their father and C.L was placed in an approved foster home.

[25] On February 19, 2019, on consent, the three children were returned to the Mother as she agreed to revoke her consent allowing the Father access to herself and these children.

[26] The parties continued to have contact. On March 31, 2019, the Father was charged with assault causing bodily harm, assault with a weapon, utter threats to cause bodily harm, forcible confinement, two counts of breach of probation and two counts of breach of officer in charge undertaking. These charges were in relation to an assault he perpetrated against the Mother.

[27] The Mother was involved with an outreach worker and a counsellor from Women in Crisis (WIC). The service was eventually closed due to missed appointments and lack of follow through by the Mother.

[28] The Father was released on bail on May 3, 2019. The parties’ relationship continued.

[29] The Society had concerns about the care of C.L., which included that she was left in the home of another person who had all of her children removed from her care for “days at a time”. This allegation is denied by the Mother.

[30] When the child C.L., came into care, she was displaying flat affect, was not showing any interest in her surroundings, was behind on her developmental milestones and had a flat head from laying down too often. It took her two months of stimulation for her to begin interacting with her surroundings and to begin vocalizing and responding to the adults and children that she was exposed to. C.L. was behind in her immunization, despite ongoing discussions about having immunizations ready.

[31] On May 30, 2019, C.L. was placed in an approved foster home.

[32] On September 12, 2019, I made a final order on consent that the children S.W. and S.W., be placed with their father. C.L. was placed in foster care.

[33] On February 20, 2019, the Mother advised the Society she was pregnant with this child. Her due date was April 27, 2020.

[34] The Society made efforts to engage the Mother in securing a spot at Marillac Place in March 2020.

[35] The Mother went into labour the afternoon of April 30, 2020. She went to the hospital and was later released as no progress was being made. She returned to the hospital on […], 2020 at 6:50 a.m. and gave birth at 3:30 p.m. The child was born healthy but stayed in the NICU for COVID testing. Both Mother and child tested negative for COVID-19.

[36] The mother currently resides at the Weber Street hotel which is the off-site housing for Mary’s Place. The child is in the care of the Society.

Society’s Position

[37] In support of its position, the Society points to the following:

(a) the Mother has a long history of involvement with the Society; (b) the Mother has not worked co-operatively with the Society – she did not meet with the worker from September 2019 to February 2020 and during that period of time she did not sign the consents required by the Society to allow it to speak with the professionals involved with her; (c) the Mother was, by her own admission, couch surfing until March 7, 2020; (d) the Mother did not work with the Society regarding housing – the Weber Street hotel is not appropriate housing for a young child; (e) the Mother provided false information to the Society and opted to stay in the hotel as opposed to actively pursuing placement at Marillac Place; (f) the Mother has five other children; four of whom are in the care of their father and the other one is in the care of the Society; (g) the child C.L. was underdeveloped when brought into care; (h) the Mother breached a court order in February 2019 by allowing contact with the Father and, as such, the three children in her care were removed from her care; (i) the Mother cannot properly care for C.L. let alone the newborn child who is the subject matter of this application; (j) the Father is going to be released from jail in August 2020 and the Society is worried that the parties will get back together; and (k) the Mother’s continued drug use.

[38] In support of its contention that the Mother continues to use drugs, the Society relies on the following: (a) a scale found by one of her daughters in her purse, (b) statements made by the Father of S.W. and S.W. that she was dealing fentanyl, (c) the address used on her prenatal record being an address of known drug dealers, and (d) marijuana use during her pregnancy confirmed by third parties and hospital staff. The Mother vehemently denies this allegation but does admit to smoking marijuana during her pregnancy.

[39] The Society requires the mother to do the following before it can consider returning the child to her care:

1. secure appropriate housing;
2. be committed to counselling for domestic violence (any order must also ensure that the Mother not have a relationship with the Father and that the Father not be in the presence of the child); and
3. have a strong support system in place.

Mother’s Response to Society’s Position

[40] The mother states she did not have good communication with her previous worker who went on a sick leave on February 4, 2020. On March 9, 2020 she reached out to a CAS supervisor who advised her to contact C. Purza. Since March 9, 2020 the Mother states she has been in constant contact with C. Purza either through phone calls or text messages.

[41] On March 18, 2020, the Mother’s lawyer sent a letter asking for the Society’s position regarding the unborn child and asked what she needed to do to have her fifth child returned to her – no response was received. The Mother’s lawyer wrote to the Society again on April 6, 2020. A response was provided on April 14, 2020 which stated among other things that “The Society will continue to assess Emily’s plan for the baby including at the time she is going to give birth.”

[42] As Ms. Purza was unable to tell the Mother whether her child would be apprehended at birth, she kept Ms. Purza advised of her preparations and provided her consents to speak to people. The mother also provided pictures of all her baby supplies to confirm she was prepared.

[43] The Mother has two strong supports in place, namely, M.S. and her cousin T.Q..

[44] T.Q. has agreed to accompany the Mother in the community any time she has the child. It does not appear that the Society takes issue with T.Q. (other than an eviction for non-payment of rent) – her only open file with the Society relates to concerns about the Father of her children with whom she does not reside.

[45] M.S. is also a resident of Mary’s Place and resides at the Weber Street Hotel. She has sworn an affidavit in these proceedings. She has known the Mother for approximately five years, they attended a parenting course, lost track of each other, but reconnected when the Mother moved into Mary's Place on March 7, 2020. She has been with the Mother every day since she moved into Mary's Place. Based on her observation, she has never seen the Mother use illegal drugs nor has she had any concerns about illegal drugs. She had witnessed the Mother smoke marijuana, however, not excessively. She is aware that the Mother uses marijuana for anxiety.

[46] M.S. offered her support with the child.

[47] M.S. spoke with Ms. Purza on April 23, 2020 and provided her commitment to assist the Mother. She advised Ms. Purza that the Mother was fully prepared with all the necessities to have a baby in her care.

[48] M.S. also sent Ms. Purza a text to advise her of steps that the Mother said she would take in regard to housing and to inquire if there was anything she could do to help. She did not hear back from Ms. Purza.

[49] M.S. also denied the statement in Ms. Purza’s affidavit that she told her that the Mother missed the Father.

[50] M.S. commits to assisting the Mother in any way she can – if the Mother cannot get into Marillac Place or similar housing she would be with the Mother almost every day. She was adamant that she would not allow any child to be harmed and, should the Mother not follow the rules or create a situation of risk, through danger, neglect, etc., she would have no hesitation in ensuring the child’s safety and phoning the Society.

[51] The Society expressed that, as it pertains to M.S., although they approve of her in a general sense (they did raise the issue of her non-payment of rent) they are concerned based on their conversations with her that she will be moving to Oshawa once her boyfriend returns from a military posting. M.S. did not address this concern in her affidavit.

[52] Since sometime after March 2020, the Mother has:

(a) signed a consent to allow the Society to speak to Marillac Place; (b) missed an office meeting on March 13, 2020 (she had group session and asked to meet on March 16, 2020); (c) met with the Society on March 18, 2020 by phone given COVID-19 (reschedule of March 13, 2020 meeting); (d) completed Make the Connection program (required for child S.L.) which took place weekly between January 17, 2020 and March 6, 2020 (positive feedback was provided by one of the facilitators); (e) provided her consent for the Society to speak with Mary’s Place, Carizon and Dr. Shannon; (f) been receiving counselling from Carizon focussing on domestic violence; (g) started living at Mary’s Place in the Weber Street Motel; (h) provided her prenatal record, her ultrasound, pictures of her motel room with baby items (crib, basinet, car seat, clothes, bouncer, baby bottles and diapers); (i) provided a note from Dr. Shannon indicating that she kept all her appointments, arrived on time and was appropriate; (j) the Carizon counsellor confirmed that she was very committed to do what she was expected in order to parent her baby – they had their first session on April 24, 2020 – the Mother has arranged to speak with her counsellor every Wednesday and Friday if possible; (k) provided pictures of the domestic violence books recommended by her counsellor; and (l) provided the submissions of Maria at Mary’s Place, who confirmed that the birth plan was to move the Mother to a single room, she saw the Mother once per week and had no concerns with how she presents.

[53] The Mother is adamant that she has no plans to return to a relationship with the Father when he is released from custody, which is expected to be August 2020.

[54] The Mother is frustrated – she believes she has done everything she thought she needed to do to keep the child in her care.

[55] In addition, the mother notes that:

(a) she was in the care of an OGBYN since October 2019 (first Dr. Wadsworth and then Dr. Shannon) and that she had proper prenatal care; (b) she has had proper prenatal care; (c) her current doctor Dr. Shannon had no concerns – he had seen her approximately five times and provided a letter dated May 5, 2020 which states among other things “E. showed up for all her scheduled appointments on time. She was clean. She was neat. She asked appropriate questions. She did not appear ill or on any drugs or other medications. I received a telephone call from Family and Children Services on the 27th of April at which time I stated that “E. With her ability to care for the child.” I hope this is helpful for her.”; (d) the nurse at the hospital had no concerns; (e) although not in evidence given the lateness of when the contact occurred, she has connected with S.O.S, a specialized outreach Service Program; (f) she has learned that she cannot be happy in a relationship with the Father and that it is okay to seek out help; that she can be alone and focused on her children and she will not be reconciling with the Father; and (g) she continues to attempt to express milk although it is difficult.

[56] The Mother states that residing at the Weber Street Motel is no different than residing at Marillac Place. She has set up the room and has everything she needs for the child. Additionally, Ms. M.S., a protective factor, resides at the Motel. Finally a worker from S.O.S. has indicated she can check in on the Mother and child up to three times per week.

[57] The position of the Society is that the Mother requires the form of supervision offered at Marillac Place, namely 24/7 supervision while her ability to parent this young child continues to be assessed.

[58] In March 2020, the Society started to work with the Mother towards securing a spot at Marillac Place.

[59] As of April 27, 2020, Marillac Place had a spot available for the Mother. As the Mother did not respond to the email of April 27, 2020 and the voicemail of April 28, 2020, the spot was not available when the child was born. It is her explanation that she went into labour on April 29, 2020 and she forgot about responding.

[60] At the time of the initial hearing on May 6, 2020, the Mother was waiting to hear from Marillac Place – on May 7, 2020 she was advised that they had moved on to another individual and she was placed on a waiting list.

[61] I adjourned the hearing at approximately 10:50 a.m. and asked Mr. Brohman to attempt to contact Marillac Place again to determine the availability of a room for the Mother and child. We reconvened at 11:30 a.m. – no one had yet responded to the query. Following the hearing and at my request to be apprised of any updates, Mr. Brohman provided the following update by email on May 14, 2020 at 4:37 p.m. (time stamp on email must be incorrect as I received it before 3:00 p.m.):

“My client has received an email from Marillac Place indicating that the worker is not working today and that my client will be contacted once a room becomes available. There was no estimate of when that might be.”

Interim Orders Made During CYFSA Applications

[62] Section 94(2) of the Child, Youth and Family Services Act, S.O. 2017, c. 14, Sch 1, states that 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.

[63] The court must make the least disruptive order consistent with the best interests of the children, in keeping with the paramount purpose of the CYFSA, set out in ss. 1(1) and 1(2).

[64] For the purposes of this hearing, I may admit and act on evidence that I consider credible and trustworthy in the circumstances, CYFSA at s. 94(10). I may also consider past conduct, CYSA at s. 93.

[65] In considering all of the evidence, I find that, at this time, the child will be placed in the interim care of the Society.

[66] What was most concerning to me was the statement made by the Society in relation to C.L. and her abilities and lack of stimulation when she came into care as a young child. The mother did not address these statements in her responding affidavit.

[67] In making this order, I am conscious of all of the efforts the Mother has made to improve her situation and that, for the most part, her housing situation is out of her control at the moment. She is to be commended for those efforts, but it is too soon to return this young child to the Mother.

[68] Since March 2020, the Mother has shown her commitment to work with the Society. Given her history, she needs to show a consistent pattern of working with the Society and the Society needs to work with her. Communication needs to be clear, consistent and proactive.

[69] It is positive that the mother has sought individual counselling for domestic violence, which started in later April 2020. In submissions, her counsel stated that she is starting to understand the impact of domestic violence on her and on the children.

[70] I commend the Mother for the many improvements she has made in her life. She is getting counselling and reading books about the impact of domestic violence on both herself and the children. She did receive prenatal care and, according to the nurse at the hospital, she behaved appropriately with the child. She has reconnected with Ms. Doyle and is connected to her cousin. Most of these improvements are relatively new. When balanced with the significant previous history, these improvements are not, at this time, enough to ensure the safety of this child, if she were returned to her Mother, subject to the supervision of the Society.

[71] Upon a placement becoming available at Marillac Place, I expect that barring any change and so long as no new protection concern arises, this order will be varied to place the child with the Mother on the terms as set out in the May 6, 2020 without prejudice interim order.

Access

[72] The child was apprehended from the hospital.

[73] The mother advises that initially following the apprehension, she was able to get updates from hospital staff about the child. However, on May 5, 2020 hospital staff advised her they could no longer speak with her based on a directive from the Society. It is unclear to me why the Mother was not allowed to continue to receive updates with respect to this child.

[74] The Mother had her first in-person access visit with the child since the apprehension on May 13, 2020.

[75] Until May 13, 2020, the Mother’s access was by virtual access.

[76] It is the Society’s position that it is doing what it can so that the Mother and child have access to each other. It points to the blanket no in-person access policy of the Society and that the foster home in which the child is placed has other children in the home that suffer from asthma.

[77] The Society further notes that the Mother is not following COVID-19 protocol in that when she attended for her first in-person access visit at the Society, she was not wearing a mask.

[78] It is clear that, since COVID-19, the court has found that there is no presumptive authority extended to the Society to suspend all in-person access to parents without formulating some alternative measures. See: DCAS v. Quinn, 2020 ONSC 1761; and Children’s Aid Society of Toronto v. T.F., 2020 ONCJ 169, at para. 10.

[79] As Justice Sherr states in C.L.B. v A.J.N., 2020 ONCJ 213, at para. 31:

Medical evidence is important on these COVID-19 motions. If someone is seeking to suspend a person's face-to-face contact with a child due to the child's medical vulnerability, a medical report should be provided setting out the child's medical condition, any increased vulnerability the child has with respect to the COVID-19 virus and specific recommendations about additional precautions that are required to protect the child from the virus.

[80] There is no medical evidence before me that deals with the issues raised by the Society as it pertains to the foster home. Accordingly, I put no weight on the statements made by the Society in that regard.

[81] I find that the Society has not been diligent in ensuring in-person access. This is a young child who needs daily contact with her Mother. The Mother wanted to breast feed but may not be able to at this time. It seems that there are two people: M.S. and T.Q., who are both prepared to supervise the in-person access and I see no reason why they cannot do so but ultimately this is in the Society’s discretion.

Orders Made

1. The child shall, on an interim basis and in accordance with s. 94 (2d) of the CYFSA, remain in the care and custody of the Society.
2. The access terms as they pertain to the Father shall remain as set out in the order of May 6, 2020.
3. The access conditions as they pertain to the Mother, in accordance with the May 6, 2020 order, shall continue but the Mother shall have access at the discretion of the Society. Such access shall include, at minimum, in-person access two hours per day Monday to Friday and on the weekend as the Society is able to arrange.
4. The Society shall continue its efforts to locate the appropriate Indigenous organization and upon determining same shall serve a copy of all the materials and court orders to said organization.
5. The Mother is given 30 days to serve her Answer and Plan of Care.
6. Approval of the Order by unrepresented parties is waived.

[82] Notwithstanding Rule 25 of the Family Law Rules, this endorsement is effective from the date it was made and enforceable as an order of the court without the need for an order to be prepared or approved by the parties and then issued by the court. No formal order is necessary unless an appeal or a motion for leave is brought, or alternatively, unless one is necessary for enforcement by a third party. A party who wishes to prepare a formal order for approval and issuance may do so and submit materials by Form 14B to the court.

[83] When normal court operations resume, all parties shall file their materials in the court record.

[84] Counsel for the Society shall serve a copy of this Endorsement on S.L., the Respondent Father.

[85] The matter can be returned before me if possible or any other judge of the UFC Kitchener upon a material change in circumstances, which change shall include the Mother securing placement at Marillac Place.

[86] This matter is adjourned to July 8, 2020 to be spoken to set next steps unless the parties are desirous of a settlement conference, which they can arrange through the trial coordinator.

D. Piccoli, J. DATE: May 20, 2020