CAS v. A.H. and K.T., 2020 ONSC 4025

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.

Court File and Parties

COURT FILE NO.: FC-19-CP14-3 DATE: 2020/06/29

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 E.T., born [….] 2015

BETWEEN:

The Children’s Aid Society of Ottawa Applicant – and – A.H. (Mother) Respondent

Counsel: Eric Smith, for the Applicant Rebecca E. Rosenstock, for the Respondent (Mother)

– and – K.T. (Father) Respondent The Respondent (Father) for himself

HEARD: May 13, 2020

Reasons for Decision

D. SUMMERS J.

Overview

1On April 23, 2020, the Children’s Aid Society of Ottawa brought an early status review application regarding the child, E., who is 5 years old. Although the application states that the order sought is a six-month supervision order to the father, counsel for the Society advised that it is actually seeking a three-month supervision order. The primary protection concerns are the mother’s alcohol use, adult conflict and the child’s exposure to the mother’s ex-partner, Mr. P.

2On April 24, 2020, I made a temporary without prejudice order placing the child, E., in the care and custody of her father, subject to terms, conditions and supervision by the Society. I further ordered access to the mother in the Society’s discretion. Access is currently limited to telephone, FaceTime and other video-conferencing technology under the Society’s COVID-19 pandemic policy suspending in-person access until it is once again determined safe under public health guidelines.

3The mother, Ms. H., brings this motion for in-person access in her home at least three times a week, subject to the Society’s supervision. She proposes that supervision be carried out by friends and family. By the time the motion was heard, her friend, C.W., had been approved by the Society. He is prepared to reside with her to supervise access.

4The Society opposed the motion, as did the father, Mr. T.

5Due to the COVID-19 health crisis and the suspension of regular court operations by the Office of the Chief Justice of the Superior Court of Ontario, this motion was heard by tele-conference.

6For reasons that I will explain, I conclude that it is in the child’s best interests to have in-person access in the mother’s home, subject to the Society’s supervision, as carried out by those individuals approved by them. Access shall occur a minimum of three times per week. The duration of the visits and level of supervision shall be in the Society’s discretion. Detailed terms and conditions are set out at the end of these reasons.

Background Facts

7Ms. H. and Mr. T. are E.’s parents. They had a brief and difficult relationship. The conflict between them continues.

8When the Society commenced its protection application in 2019, Ms. H. and Mr. T. were in the midst of family court proceedings. The Society’s safety concerns included the mother’s alcohol use and the conflict with Mr. P. who was her on again, off again partner.

9The mother and Mr. P. have a child together. Their child, W., was born in January 2020.

10On April 9, 2019, Justice Aitken found the child, E., in need of protection and placed her with the mother, Ms. H., subject to Society supervision for a period of 6 months, on terms and conditions. The father, Mr. T., had access every weekend from Friday afternoon until Monday morning. The order prohibited the mother from allowing any contact between the child and her ex-partner, Mr. P., unless pre-approved by the Society or the court.

11A month later, the Society brought an early status review application. On May 16, 2019, Labrosse J. ordered that E. be placed in the temporary care and custody of the father, Mr. T., subject to supervision. The mother’s access was a minimum of once a week with duration, location and level of supervision in the Society’s discretion. Among the terms and conditions, she was to refrain from alcohol use while in a caregiving role and not allow any contact or exposure between Mr. P. and the child, E.

12On June 26, 2019, Audet J. ordered access under a gradually increasing schedule. The above terms and conditions continued.

13On October 22, 2019, the case came before me. I made a temporary without prejudice supervision order varying access to a minimum of three times per week. The duration, location and level of supervision was in the Society’s discretion.

14On November 15, 2019, O’Bonsawin J. made a with prejudice order on the same terms.

15On March 9, 2020, Justice Engelking made a final three-month supervision order placing E. in her father’s care and custody. Access was ordered a minimum of three times per week with duration, location and level of supervision in the Society’s discretion. The order reiterates terms and conditions prohibiting the mother’s alcohol use and the child’s exposure to Mr. P. As did the orders above, it included a term requiring the mother to report any domestic violence within 24 hours.

16Access increased again to include back-to-back overnight visits during the week. When the pandemic hit Ottawa, the Society’s supervision changed from in-person visits to virtual visits. The Society’s last virtual visit with E. in the mother’s home was April 14, 2020. Their last virtual visit in the father’s home was April 16, 2020.

17On Sunday, April 19, 2020, the mother called the Ottawa Police Service. She reported that Mr. P. had assaulted her, in her home, on April 17, 2020.

18The police responded to the mother’s call. Upon arrival at her home, they contacted the Society with concerns that she was intoxicated and unable to care for the infant, W. The Society attended and removed the child to the home of his maternal aunt.

19E. was not in her mother’s care at the time. She had returned to her father’s home on Thursday, April 16, 2020.

20Mr. T. lives with Ms. S. She is his partner of 4½ years.

21Ms. H. resides alone with the children, E. and W.

Society’s Position

22The Society alleges that the mother has not been transparent about her relationship with Mr. P. and that she minimizes the risk of harm that he poses to the child. They say she invited Mr. P. to her home and allowed him to stay there from April 13 to April 17, 2020 while E. was in her care, contrary to Justice Engelking’s order. The Society further contends that the mother exposed E. to risk of harm by failing to follow COVID-19 safety protocols.

Mother’s Position

23Ms. H. argues that E. is safe in her care and that her best interests require that they have generous and meaningful in-person time together including overnights. She denies inviting Mr. P. to her home and says she did not allow him to stay or have any contact with E. She argues that she is not responsible for his attendance at her home on Friday, April 17, 2020 when she says he assaulted her. She contends that he just appeared in her back yard and she became aware only when she looked out the window. She claims they had words and that is when he assaulted her. Ms. H. denies any current relationship with Mr. P. beyond him being W.’s father. She is adamant that she has been transparent with the Society and told them that she struggles with her desire for the child to know his father. She also insists that she was careful to follow all COVID-19 public health and safety recommendations including social distancing, self-isolation and hygiene rules.

24Ms. H. proposes a safety plan to address the Society’s concerns and allow for in-person access in her home. Her plan was underway by the time the motion was heard. It includes Alcoholics Anonymous meetings, Violence Against Women counselling, addictions counselling, and a support network of family and friends willing to supervise her parenting time with E. She submits in-home access is the least intrusive disposition consistent with the child’s best interests.

Father’s Position

25Mr. T. opposes in-person access in the mother’s home. He says supervision is not sufficient to keep E. safe because C.W., the primary supervisor proposed by the mother, is her drinking buddy and cannot be trusted to report any breach of court ordered terms and conditions. In addition, Mr. T. alleges that E. is afraid of C.W. and asserts that he is not as familiar with the mother’s vulnerabilities as he claims to be. Mr. T. submits there should be a sustained period of sobriety that is free of conflict and police involvement before E. resumes in-person access at the mother’s home. He says the past year has been tumultuous for her with many changes back and forth between their respective homes and she needs the stability that he provides.

Analysis

26The issue of E.’s access must be decided in accordance with her best interests on such terms and conditions as the court considers appropriate. In determining her best interests, the court must consider the terms set out in s. 74(3) of the Child, Family and Youth Services Act, 2017, S.O. 2017 c. 14, Sched. 1. The best interest considerations relevant to this case include,

• the child’s views and wishes, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained;
• the child’s physical, mental and emotional level of development,
• 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,
• the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity,
• 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.

Contact with Mr. P.

27There is a significant history of domestic conflict between the mother and Mr. P. The police were involved with them as recently as December 2019 and January 2020.

28I accept the Society’s concern regarding the mother’s inability to be truthful about her relationship with Mr. P. The mother concedes that some of her communications with Mr. P. suggest that she wanted him to come to Ottawa to be with her and the child, W., but submits it was not as it appeared. She says she just wanted him to pay child support and bring supplies for the baby. I do not accept that argument. Although there was evidence in the form of text messages from February and March that indicated the mother’s need for financial help, there is no sign of that goal in the messages below.

29The following exchange occurred between April 13 and April 17, 2020:

• Over the Easter weekend, Ms. H. writes to Mr. P., … “ I asked you to be here and you went to your ex instead. So stop with the bs. ”
• On Tuesday, April 13, 2020, Mr. P. writes to Ms. H., “ K leaving now I can’t answer the phone on the way.” Ms. H. responds, “ Are you coming? ” Mr. P. answers, “So ill [sic] let you know when I’m in the back.” She responds, “K.”
• Tuesday 10:01 am, Mr. P. writes, “ I am outside .” Ms. H. responds, “ I’m going to take E. outside and I’ll open the door. K go upstairs now.” Mr. P. writes, “Ok I am in the front” and Ms. H. says, “Go upstairs now.” He says, “ K i am in [sic] .”
• Thursday 10:15 am, Mr. P. texts to say, “Coffee is on its way. I got E. a lemonade. Ms. H. responds, “Ok thanks.” He writes, “I really need to use the washroom” and she answers, “Ok go.”
• On Friday, April 17, 2020 Ms. H. says, “Attacking people ??? I answered a fucking phone call and you flipped out.”
• Mr. P. responds, “You want to be an abusive drunk that is on you you [sic] fucking ruined another great fucking week for a drink you yet again get pissed off at me because you are in the qrong [sic]…. Because you are the one ordering alchohol [sic] and talking to you exs and fuck toys while I am sleeping next to you. ”

30This evidence also persuades me that Ms. H. allowed Mr. P. in her home between April 13 and April 17, 2020 and that, in all likelihood, he stayed with her. The messages above indicate that he was hiding from E. during the day but in the house at night and sleeping with Ms. H., contrary to her evidence that they are not romantically involved. To the extent that she admits some manner of relationship with Mr. P., she describes it as toxic and unhealthy, yet the evidence also indicates that she is unwilling to end it regardless of the Society’s long-standing safety concerns. According to the Society, Mr. P. also advised that he was in the house on April 14, 2020 when the last virtual home visit occurred. It was not explained how he was aware of the virtual visit if he was not in the house at the time.

31In response to the evidence indicating Mr. P.’s presence at her home, the mother concedes that he came by once and went in the house to use the washroom but contends there was no contact with E., therefore, there was no breach of Justice Engelking’s order. In this regard, she points to the Society’s evidence that E. did not report any concerns regarding Mr. P., or otherwise, during the last virtual home visit. I do not accept the mother’s argument. The risk lies in his mere presence at the home. It creates the potential exposure to adult conflict and contact between the child and Mr. P. In my view, the arrangements put in place by the mother between April 13 and 17 are a sign of the lengths to which she will go to have Mr. P. in her life as well as her inability to put her child first.

COVID-19

32Ms. H. has not persuaded me that she adhered to the COVID-19 public health protocols as carefully as she contends. As I found above, Mr. P. was in her home for four days in April 2020. Her friend, C.W., stayed in her home from April 17 to 19, 2020 to care for her after the alleged assault. Both the mother and C.W. admit this. There is also evidence that her friend, A.K. and his daughter, L., were in the home in April. A.K. explains that he was there helping with yard work and stayed later one evening to socialize. Both girls fell asleep. This explanation was offered in response to the Society’s evidence that E. reported her friend L. sleeping with her and her belief that L.’s father was sleeping in her mother’s bed. Both, Ms. H. and A.K. deny any romantic relationship between them and further say they took all appropriate measures to ensure their safety and that of the children including a period of self-isolation before allowing any contact between the families. Nevertheless, public health guidelines in effect at the time indicated that having guests in your home was considered high risk behaviour. For these reasons, I conclude that Ms. H. was not as careful about the risks of COVID-19 as she says she was contrary to the child’s best interests.

Supervision

33I am satisfied that any risks associated with in-person access can be mitigated by a supervision order under terms and conditions. There are three individuals willing to supervise and report to the Society. Ms. H. proposed her friend, C.W. who is known to E. and willing to move into her house to help her. C.W. was approved by the Society.

34C.W. is single and semi-retired. To the extent that he works, he is self-employed and controls his own schedule. He says he will turn down new work and be present full-time in the mother’s home to supervise. He says he would not tolerate the mother consuming alcohol while E. is in her care nor would he allow Mr. P. to have contact with E. Although the mother’s counsel told the court that both her client and C.W. had been self-quarantining since April 19, 2020, the Society expected them to complete a further 14-day period of self-isolation after the hearing. That added requirement should now be complete.

35Mr. T. objects to C.W. supervising access. He offered two reasons. First, he alleges that C.W. is the mother’s drinking buddy and thus should not be trusted to report concerns to the Society. There is no evidence to support this conclusion. Second, he says E. is afraid of C.W. and claims that once he had the child in his car without a car seat, and once he drove with her while under the influence of alcohol. On this occasion, C.W. picked up E. from Mr. T.’s house. After allowing the child to get in the car and leave, Mr. T. reported his suspicion to the police. They followed C.W. to his home and determined he had not been drinking.

36According to the mother, Mr. T. does not know C.W. and has no reason to reject his help. She says he will reject anyone she proposes. It is C.W.’s evidence that he is not a heavy drinker and does not know Mr. T. He said they met twice. Once when he picked up the child from his residence and another time when he was helping the mother steam clean her carpet.

37Ms. H. also proposed her long-time friend, A.K., as a supervisor. He too is well known to the child. By the time the motion was argued, A.K. had already provided the Society with a clear police check. The extent to which the Society has investigated A.K. since then is unknown. A.K.’s ability to supervise is restricted by the fact that he has custody of his four-year-old daughter, L., but says he can still drop by the mother’s house from time to time as well as check in virtually.

38Mr. T. is opposed to A.K.’s help. He alleges that the child said A.K. and her mother argue and that sometimes he stays overnight with his daughter, L. The mother and A.K. deny arguing in front of the child and deny spending nights together. Mr. T.’s allegations are based on child hearsay.

39The mother’s sister, S.H., has long been a support and is prepared to continue helping by checking in virtually and physically when she can. She has young children of her own, ages 2 and 8 years, that limits her availability. S.H. was previously approved by the Society as a kin caregiver. Both the mother and sister say their family is close. Their parents have been supportive in the past and are likely to be again as soon as their father recovers from a recent illness.

40I am satisfied that it is in E.’s best interests to have in-person access with her mother subject to Society supervision. The duration, level and way in which supervision is provided shall be in the Society’s discretion. This is the least intrusive disposition that provides adequately for the child’s safety. Overall, E. is accustomed to spending significant amounts of time with each of her parents. There is no independent evidence of her views and preferences. Each parent says she is happy in their respective homes and tells both that she wants to spend more time with them. The evidence indicates that E. is bonded with both parents. At her age and stage of development, I find it is important that she have meaningful and safe in-person contact with her mother, her father and baby brother, where possible.

41For the reasons given, I make the following order:

Access

1. The mother shall have access with E. in her home a minimum of three times per week, subject to supervision, and the terms and conditions set out below. The level of supervision and duration of access shall be at the discretion of the Society.
2. When each parent has E. in their care, the caregiver parent shall initiate phone calls between E. and the other parent, a minimum of twice per week.
3. The parents shall communicate directly by email to advise the other of any information regarding E. (such as being sick, taking medication, how she is doing etc.). They shall remain respectful, at all times. The father shall ensure he is the one communicating the information to the mother and not his partner, Ms. S.
4. Neither party shall expose E. to Mr. P. or have a conversation about him in the child’s presence.

Terms and Conditions

The mother, A.H.:

5. Shall work cooperatively with the child protection worker by (i) meeting regularly; (ii) notifying the Society in advance of any change of address, telephone number or family constellation; (iii) following reasonable recommendations made; and (iv) allowing the Society worker private access to the children, on an announced and unannounced basis, in the home or in the community, a minimum of once (1) a month.
6. Upon consultation with counsel if desired, the parent shall sign consent forms, allowing the Society and various professionals and workers involved with the family to share information about their involvement and observations.
7. Shall meet the needs of the child, including physical, emotional, developmental and educational needs.
8. Shall engage through completion in counselling and/or a program for women who have experienced domestic violence or who have been in an abusive relationship. She shall be able to identify red flags or patterns in people that suggest they could be violent to her or her child and demonstrate that they can act protectively.
9. Shall not use alcohol while in a caregiving role and engage to completion in an alcohol addiction program.
10. Shall not expose the child to any inappropriate adult conversation such as the use of profane language, speaking negatively about the other parent, yelling and screaming.
11. Shall model appropriate behaviour and messaging to the child that includes telling the truth and not lying.
12. Attend, participate, and complete a parenting program (such as the program at the Parenting Resource Centre or Family Service Centre) to gain skills around appropriate parenting methods, parenting stressors and supports, child development and behaviour guidance, positive parenting communication with the child.
13. Attend an anger management program and demonstrate that she has gained skills at this program.
14. The mother shall immediately inform the worker about any change in family circumstances including change in residence, phone number and new partner(s).
15. The mother shall ensure that E. is not exposed or subject to incidents of adult conflict or domestic violence.
16. Shall report to the Society any incidents of domestic conflict with partners, or any police involvement in that regard, within twenty-four (24) hours.
17. Shall allow C.W., who the Society has assessed and approved as a supervisor, to temporarily reside in her home.
18. Shall not expose E. to Mr. P. or allow any contact between them.
19. Shall follow COVID-19 public health guidelines.

The father, Mr. T.:

20. Shall continue to work cooperatively with the child protection worker by (i) meeting regularly; (ii) notifying the Society in advance of any change of address, telephone number or family constellation; (iii) by following reasonable recommendations made; and (iv) allowing the Society worker private access to the child, on an announced and unannounced basis, in the home or in the community, a minimum of once (1) a month.
21. Shall meet the needs of the child, including physical, emotional, developmental and educational needs.
22. Upon consultation with counsel if desired, the parent shall sign consent forms, allowing the Society and various professionals and workers involved with the family to share information about their involvement and observations.
23. Shall not expose the child to any inappropriate adult conversation as related to the parents’ separation or current court involvement.
24. Neither party shall expose E. to Mr. P. or have conversations about him in E.’s presence.
25. Shall follow COVID-19 public health guidelines.

The Supervisor, C.W.:

1. Shall cooperate with the Society by following their directions regarding the mother and E.
2. Shall fully and at all times supervise the mother when E. is in her care.
3. Shall immediately report to the Society any incident of the mother not following her current conditions.
4. Shall immediately advise the Society if any conflict arises between him, the mother or any of her family members.
5. Shall, at all times, ensure that the Society is aware of his current contact information (address, land line, cell phone etc.).
6. Shall not be under the influence of substances while residing in the mother’s home and supervising E.’s care.
7. Shall follow COVID-19 public health guidelines.