Court File and Parties

COURT FILE NO.: C-472/18 DATE: 2020-07-07

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.

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

The Children’s Aid Society of Hamilton Applicant – and – E.R. and M.B.B. Respondents

Counsel: Mr. John Bland, Counsel, for the Applicant Ms. Amy Katz, Counsel, E.R. Ms. Kathleen Bingham, Counsel for M.B.B.

HEARD: In Chambers.

JUDGMENT

The Honourable Mr. Justice A. Pazaratz

[1] AS A RESULT OF COVID-19, this endorsement is made pursuant to the Consolidated Notice to the Profession, Litigants, Accused Persons, Public and the Media from the Chief Justice of the Ontario Superior Court of Justice, issued May 13, 2020 and the Notice to the Profession, Litigants, Accused, Media and Members of the Public from the Chief Justice of the Ontario Superior Court of Justice, issued June 25, 2020.

[2] This endorsement is also made pursuant to the Protocol regarding Family and Child Protection Matters in Central South Region from Regional Senior Justice Arrell, issued April 7, 2020 and the Notice to the Profession in Central South Region from Regional Senior Justice Arrell, issued June 26, 2020.

[3] The Notices and Protocol can be found at the Ontario Superior Court of Justice’s website (ontariocourts.ca/scj) and/or at the Hamilton Law Association’s website (hamiltonlaw.on.ca).

[4] As referenced in the above Notices, the regular operations of the Ontario Superior Court of Justice have been suspended since March 15, 2020 and until further notice.

[5] Electronic materials were filed through the Courthouse email address. Upon the resumption of Court operations all materials shall be duly filed by the parties in the physical record at the Courthouse.

[6] This is a 14B motion brought by the Children’s Aid Society of Hamilton (the Society) seeking to terminate the final order of Justice Chappel dated January 20, 2020 in relation to a 29 month old male child B.E.B.. The order being requested is pursuant to final minutes of settlement signed by the Society and both parents in June 2020.

[7] While the court always encourages resolution, judges have the ultimate responsibility to ensure that orders in relation to children are safe and appropriate. In this case, I am not prepared to make the requested order at this time – and certainly not based on the materials filed.

[8] The background is important and troubling:

a. In early 2018 Dr. Burke Baird of the Child Advocacy and Assessment Program (CAAP) reported that the child – who was then about seven weeks old – suffered an unexplained head injury. He had brain bleeding and hemorrhaging, and eye hemorrhaging. He also had bruising on his abdomen and a bruise on his back near his shoulder. b. B.E.B. remained in hospital for a lengthy period of time. He suffered severe seizures. The eye bleeds were too numerous to count. c. Dr. Baird concluded that B.E.B. had suffered at least one episode of severe inflicted trauma to his head, back and abdomen. It was worried that B.E.B.’s injuries would result in permanent disability. d. The parents were the only persons who had cared for B.E.B. at the material time. They were unable to provide a plausible explanation. They (and extended family) were unaccepting of Dr. Baird’s conclusion. They wanted a second opinion. e. Upon agreement of all parties, Dr. Warren of the London Health Sciences Centre prepared a second opinion. Dr. Warren supported Dr. Baird’s opinion that the child had suffered from acute physical abuse, and that “further assessment of his neurologic findings identify that he suffered acquired traumatic head injuries on at least two occasions prior to presentation.” f. Both doctors independently concluded that B.E.B.’s injuries were inflicted. But the parents and extended family also rejected Dr. Warren’s conclusion. g. The Society says it verified that the child suffered significant physical harm while in the parents’ care and that one of the parents caused the injuries – but it could not make a determination as to which parent was the perpetrator. Similarly, no criminal charges were laid because the police could not establish that either parent had an “exclusive opportunity”.

[9] Although the circumstances and culpability in relation to the child’s severe injuries have never been determined, fortunately there have been some positive developments.

a. After his release from hospital, for almost two years B.E.B. was cared for by his maternal grandparents. He did well in their care. His condition improved. b. The parents’ access to B.E.B. was initially supervised. Although the parents and the family were unaccepting of the opinions of the two experts, they complied with the terms of supervision imposed by the court. c. In about the late summer or fall of 2019 the parents began having unsupervised access. Liberalization of access was subject to certain conditions. No concerns were noted as access expanded. d. B.E.B. remained in the maternal grandmother’s care until January 20, 2020. e. Pursuant to the January 20, 2020 order which was made on consent, B.E.B. was placed in the care of the parents for a period of five months, under supervision by the Society. f. On June 17, 2020 the Society brought a Status Review Application seeking to terminate the January 20, 2020 supervision order. g. The Society says since January 2020 B.E.B. has been well cared for by the parents. They have ensured he attends medical appointments with a pediatrician, neurologist and eye specialist. He is achieving developmental milestones. The parents’ home has been appropriate. They completed programming as requested by the Society to improve their parenting skills and their ability to keep the child safe. No further concerns have been reported. h. Until the COVID 19 pandemic, the Society worker maintained regular home visits to monitor B.E.B. No concerns were noted. The infant appeared happy, healthy and well cared for. i. Since mid-March the worker has been monitoring through videoconference calls. The Society has no concerns. j. The Society says the parents and B.E.B. heave good family supports.

[10] So, in dealing with this 14B motion, the court is faced with a dilemma common to many of these “unexplained injury” cases.

a. The Society says that when he was seven weeks old, B.E.B. suffered horrific inflicted injuries at a time when only two people – the mother and the father – were caring for the child. b. The parents dispute the findings of two child abuse experts – but I am unaware of any alternative, credible explanation having been advanced by either of them. c. It is understandable why criminal charges were not laid. But the inability to conclusively establish who injured this child does not change the fact that somebody injured this child. And until now the Society has clearly taken the position that the perpetrator was either the mother or the father – or both.

[11] There are many encouraging aspects to this case. The child has been doing well – initially in the care of the maternal grandmother and for the past five months in the care of the parents. Had the basis for the initial apprehension and protection finding not been so extremely troubling, I would have had little hesitation granting the requested order.

[12] But horrific unexplained injury cases require enduring community vigilance. Anything less would be an abdication of our responsibility to protect a young, vulnerable child who has already been severely abused.

[13] As always, the court must engage in a complex balancing of objectives:

a. The parents are to be commended for their progress. b. The Society is to be commended for its efforts to promote family repair and reunification. c. Supervision orders are intrusive for parents and a burden with respect to limited community resources. There are many reasons why we should work toward the least disruptive options in child protection matters. d. And COVID-19 has added its own pressures and complications. It is understandable, for example, that as a result of the pandemic the Society is currently conducting its “supervision” of these parents by videoconference. (On the upside, videoconferences are somewhat less intrusive for the parents, and less expensive for the Society.)

[14] Having carefully considered this matter, I feel it is premature to grant the order being requested.

[15] The motion is dismissed. Pending further order, the existing order is to continue.

[16] 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.

Pazaratz J. Released: July 7, 2020