WARNING

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

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

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

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

COURT FILE NO.: FC-19-CP39 DATE: 2020/01/20

ONTARIO SUPERIOR COURT OF JUSTICE

IN THE MATTER OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017, S.O. 2017, c. 14, Sched. 1

AND IN THE MATTER OF S.B. (DOTB: […], 2008), A.O.H. (DOTB: […], 2011)

BETWEEN:

Children’s Aid Society of Ottawa Applicant – and – I.O. (Mother) O.T.B. (Father of S.B.) H.H. (Father of A.O.H.) Respondents

COUNSEL: Eric Smith, for the Applicant I.O. (Mother) - did not attend O.T.B., Self-Represented Cedric Nahum, for the Respondent (Father H.H.) Debra Scholey, for the Office of the Children’s Lawyer

HEARD: January 13-15, 2020 (Ottawa)

REASONS FOR DECISION

PARFETT J.

Introduction

[1] This matter is a protection application brought by the Children’s Aid Society of Ottawa (CAS) in relation to two children: SB (DOB […], 2008) who is presently 11 years old and AOH (DOB […], 2011) who is presently eight years old.

[2] The Respondent IO is the mother of both children. She was represented by counsel but did not provide instructions and did not appear for trial despite having been present when the dates for trial were set. Her counsel asked for, and was removed, as counsel of record at the outset of the trial.

[3] The Respondent OTB is the biological father of SB.

[4] The Respondent HH is the biological father of AOH.

[5] The Society seeks an order that the children be found in need of protection pursuant to s. 74(2)(a)(i) and (ii) of the Child, Youth and Family Services Act, 2017 (CYFSA) – that the children have suffered physical harm caused by their mother due to a failure to care for, provide for, supervise or protect the children adequately and a pattern of neglect. They also seek an order finding the children in need of protection pursuant to s. 74(2)(b)(i) and (ii) of the CYFSA because the children are likely to suffer physical harm inflicted by their mother due to a failure to care for, provide for, supervise or protect the children adequately and a pattern of neglect.

[6] The Society also seeks an order placing SB in the custody of her father OTB pursuant to s. 102 of the CYFSA and that the child AOH be placed in the joint legal custody of the paternal grandmother, NB and her father HH pursuant to s. 102 of the CYFSA. In addition, the Society seeks an order that subject to the views and wishes of the children, they are to have access to their mother, supervised at a supervised access program facility.

[7] Both fathers agree with the Society that the children should be found in need of protection and placed in their custody. The only issue is the wording of the access order. Counsel for HH suggested that the access order state that access to the mother should be at the discretion of the custodial parent and in keeping with the views, wishes and best interests of the child.

[8] The mother, IO, presented a plan of care requesting that the children be returned to her care. However, as noted earlier, she did not attend court and consequently, no evidence was presented to support her plan.

Evidence

[9] The evidence was uncontradicted and indicated the following:

[10] The Society opened a file in relation to this family on 17 previous occasions. It was only on the final occasion that the children disclosed any information of consequence. The reasons for the previous openings were the same as on the most recent occasion: allegations of neglect and physical abuse.

[11] On the most recent occasion, the CAS intake worker, Joanne Ryan received a call from the children’s school in May 2019. The children had disclosed to Vice-principal that they had been left unsupervised, their mother had made threats to harm them and she consumed drugs and alcohol. The children also noted that there was often no food in the house, and they were left to care for themselves.

[12] Ms. Ryan met with the children at the school and they advised her that their mother brought strangers into the house, had parties, and confined the children to the upstairs during the parties. They stated that their mother would threaten to harm them if they came downstairs during the parties. They noted that their mother slept a lot and as a result, they were often required to take care of themselves. There was often no cooked meal and their paternal grandmother and paternal aunts would bring food to the house. The children mentioned that on one occasion their mother had said she was going to the mall for an hour, but she did not come home until the next morning. The children also disclosed that they had been subjected to physical discipline. On one occasion, the mother hit SB on the shoulder with a hanger and left a mark. AOH said that her mother threatened to burn her if she woke her up.

[13] The child protection worker, Danika Gagné advised the court that she had great difficulty contacting the mother. The mother was asked to complete a parenting program and to take regular drug tests. The mother advised Ms. Gagné that she had registered for a parenting program, but when Ms. Gagné checked, there was no record of any registration. IO did not attend for any of the scheduled drug screening tests.

[14] Ms. Gagné advised the court that the children do not wish to see their mother and have indicated that they fear her. Ms. Gagné indicated she believes the children’s fear is genuine and does not believe that the children have been influenced by their fathers or the paternal families.

[15] Ms. Gagné visited SB at OTB’s residence and she noted that the house is clean and appropriate, and that SB appears to be very happy there. She is engaged in extracurricular activities organized by the school and does gymnastics.

[16] Ms. Gagné also met with AOH’s father, HH and she advised the court she was satisfied that there would be no protection concerns if HH had custody of AOH. Presently, HH is in custody for a criminal matter, but it is expected that he will be the primary caregiver of AOH as soon as he is released.

[17] OTB testified and told the court that he has always been involved in his daughter’s life, although primarily as an access parent. He indicated that SB would visit him every weekend and holiday. He noted that when he brought SB back to her mother’s house, he would bring food, clothing and other necessities such as a toothbrush as he was aware that IO often did not have enough food or other items in the house. IO would ask him to provide food. However, she also sometimes wanted money, not groceries, and she would refuse to permit SB to visit her father if he refused to give her money.

[18] OTB stated that presently every two weeks the siblings have a sleepover and every Wednesday they call one another. He and AOH’s paternal grandmother arrange the calls and the visits.

[19] OTB indicated that SB is adamant that she does not want to see her mother. He said he has tried to suggest that SB see her mother, but he believes that she is afraid. He noted that the biggest issue was IO’s threatening and assaultive behaviour. According to OTB it appeared to him that anything seemed to trigger an assault – such as asking a question when IO was not interested in answering.

[20] NB is AOH’s paternal grandmother. She testified and advised the court that she has been involved in AOH’s life from birth. Her testimony mirrored that of OTB. She regularly provided food to IO as there was often none in the house. AOH was not registered in school until she was over five years old as IO kept refusing to sign the documents necessary to obtain a birth certificate. AOH also did not have a health card. NB was the school’s primary contact as they often could not reach IO. Consequently, NB was also aware that AOH often came to school not having eaten breakfast and without a lunch. The school provided breakfast and kept pizza slices available for the children if they had no lunch.

[21] NB noted that AOH was in grade two but could not yet read or write. The fact AOH was late starting school meant she was behind her peers from the outset. The school had observed behavioural problems with AOH and had recommended that she attend a school that dealt with students with behavioural problems. However, once AOH started living with NB, those problems disappeared and AOH returned to a regular school. AOH has developed self-confidence and is catching up academically.

[22] NB advised the court that AOH remains concerned that she might have to return to her mother’s care. She is anxious if there is someone unexpected at the door or there is an unknown car on the street. NB stated that AOH is adamant she does not want to see her mother at the moment. However, NB is confident that eventually AOH will want to have access with her mother.

[23] The children filed affidavits. The affidavits are similar in content. In her affidavit, SB stated the following:

• When I lived with my Mother, I had to get myself and my sister up in the mornings to go to school. Sometimes, my sister was awake before me and she would wake me up. … Usually, my Mother was still sleeping and she would not get up with us in the morning. Sometimes, my Mother was still awake and drinking from the party the night before;
• My sister and I would make our own breakfast and lunch for school then we would go to wait for the school bus on our own;
• When we came home we would let ourselves in to our house from where the bus dropped us off. Our Mother would not be at the bs stop waiting for us. We had to get our own dinner. Our Mother did not help us with our homework, bathing or brushing teeth;
• My Mother never bought food for us unless there was a worker coming to visit from Children’s Aid Society. On the weekends, my Father would send me home with enough food for the week for me and [AOH]. However, sometimes we ran out of food because my Mother and her friends would eat the food. Sometimes my Mother would buy food but she told me and [AOH] that we could not eat the food she bought because it was for her and her friends. … [AOH]’s grandmother would also give us food. So that we would have food, my sister and I would hide food in our room;
• Sometimes my Mother would tell me that a worker from Children’s Aid Society was coming over. My Mother would make me and my sister clean the house and my Mother would buy groceries before the CAS worker came over. My Mother would tell us what to do and say to the worker and she would threaten to hurt us by burning us with a lighter or kill us if we did not do what she said;
• My sister and I missed school a lot. My Mother would not let us go to school if we did not have food for lunch. If my sister was suspended my Mother usually did not let me go to school so I could stay home and look after my sister. Sometimes, I would wake up my Mother in the morning to see if she had changed her mind about not letting me go to school. It was usually difficult to wake up my Mother;
• My Mother hit my sister and I almost every day with a hanger on our bum. She hit us hard and sometimes it left bruises. Sometimes she pinched us. One time she pinched me so hard that I bled. I never knew why my Mother was hitting us. There did not seem to be any reason to it. It wasn’t always because we did something she didn’t want us to do. Sometimes we would just walk by her and she would hit us for no reason;
• My Mother also left me and my sister alone a lot at night and during the daytime. We have not had anyone babysit us since I was around 6 years old. I would be very afraid when we were left alone;
• On or about May 7, 2019 the vice principal at my school…came to speak to me. She promised me that anything I said would be confidential. She said she would not tell anyone what I told her. I finally felt safe to say what really happened in our house with my Mother. I never told the workers from CAS what was going on because I was afraid. The workers never told me that anything I told them would be a secret. My Mother had threatened me and my sister that she would hurt us bad if I told the truth. I was too afraid to tell the workers anything. It was not until the worker came in May 2019 that I felt safe to tell the truth because I was told that she would not tell my Mother.

Legal Principles and Analysis

[24] As noted above, the CAS seeks a finding that the children are in need or protection pursuant to subclauses 74(2)(a) and (2)(b). Those clauses state,

A child is in need of protection where,

(a) The child has suffered 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;

(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, provide for, supervise or protect the child, or (ii) Pattern of neglect in caring for, providing for, supervising or protecting the child.

[25] The Society has the onus, on a balance of probabilities, to demonstrate that the child has suffered harm or is at risk of harm.

[26] As noted in Children’s Aid Society of Toronto v. R.S., B.P., and M.J.G., 2019 ONCJ 866, ‘physical abuse, inappropriate discipline, inadequate supervision, domestic violence, untreated mental illness, untreated addictions, inadequate shelter or food are common circumstances leading to findings of physical harm or risk of physical harm.’ At para. 106.

[27] In the present case, there is evidence that IO exercised inappropriate physical discipline, failed to adequately supervise the children by leaving them alone overnight, often did not have adequate food or other necessities in the house, left the children to care for themselves and SB to care for her sibling, did not ensure that AOH had a birth certificate, was late in enrolling AOH in school causing educational delays and threatened the children with physical harm. For these reasons, I find that the children are in need of protection pursuant to s. 74(2)(a)(i) and (ii).

[28] Once a determination has been made that a child is in need of protection, subsection 101(1) of the CYFSA requires the court to consider whether intervention through a court order is necessary to protect the child in the future.

[29] In the present case, IO has not engaged with the Society in any way. She did not take any parenting courses, did not seek personal counselling, did not take any drug screening tests, and finally, did not show up for this trial. Given that the Society has been involved with this family on numerous previous occasions to deal with the same issues of neglect, physical abuse and possible substance abuse on each occasion, there is good reason to conclude that if the court does not intervene, the children will continue to suffer the same harm they have suffered previously.

[30] The final step in the process is to determine the appropriate order. All parties at this trial agree that orders should be made pursuant to s. 102 the CYFSA.

[31] An order for access to the mother is also required and there was a dispute as to the appropriate wording of that order. The children have made it clear that at the present time, they do not want access to their mother. The Society and the children’s fathers have been respecting their wishes. Both fathers and the paternal grandmother have indicated they will support access to the mother by the children when the children are ready to resume contact with IO. Consequently, I am of the view that the access order should be at the discretion of the custodial parent.

[32] Finally, the lawyer for the children asked the court to make an order to permit OTB, NB, and HH to obtain and renew passports for their respective children and to travel with their respective children without the necessity of obtaining the signature or consent of IO. Given the evidence that IO has bargained access for money and was extremely slow to sign the documents necessary to obtain a birth certificate for AOH, I find such an order is necessary.

Conclusion

[33] The following orders will be issued:

1. SB will be placed in the custody of her father, OTB;
2. AOH will be placed in the joint legal custody of her paternal grandmother NB and father HH. AOH’s primary residence shall be with the paternal grandmother. All major decisions shall be made jointly by the paternal grandmother and father. While the father is incarcerated, the paternal grandmother shall be the primary caregiver;
3. SB’s access to her mother is at the discretion of OTB and in accordance with the best interests of SB and taking into consideration her views and wishes;
4. AOH’s access to her mother is at the discretion of NB and HH and in accordance with the best interests of AOH and taking into consideration her views and wishes; and
5. OTB, NB, and HH may obtain and renew passports for their respective children and travel with their respective children without the necessity of obtaining the signature or consent of IO.

Madam Justice Julianne Parfett Released: January 20, 2020