COURT FILE NO.: FC-17-00000194-0004
DATE: August 6, 2020
ONTARIO
SUPERIOR COURT OF JUSTICE, FAMILY BRANCH
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 87(8) OF THE CHILD, YOUTH AND FAMILY SERVICES ACT
IN THE MATTER OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017, S.O. 2017, c. 14, Sched. 1
AND IN THE MATTER OF M.L.C. ([…], 2020)
BETWEEN:
Highland Shores Children’s Aid Society Applicant
Ms. Cynthia Law, for the Applicant
– and –
K.A.D. Respondent
Mr. Isak Feuer, for the Respondent mother
A.V. Respondent
Mr. Shannon Crawford, for the Respondent father
HEARD: July 23, 2020 by teleconference
Decision on Temporary Care hearing
MALCOLM, J.
[1] The society has brought a motion seeking an order that the child M.L.C., born […], 2020 be placed in its temporary care and custody, with access to the parents in its discretion. On June 1, 2020 the case was before the court for the initial place of safety hearing. The matter was adjourned to July 23, 2020 for the temporary care hearing to give the parents an opportunity to retain counsel and file responding material. The child was taken from the hospital on May 27, 2020 and placed in the care of the applicant society and remains there.
[2] The material before the court is the motion of the society dated May 29, 2020, the affidavit of the primary worker, Sarah Moffat dated May 29, 2020, the affidavit of the father dated July 13, 2020, the affidavit of the mother dated July 14, 2020 and the reply affidavit of the worker dated July 17, 2020. No facta were filed. I reserved my decision. The society also relies on a transcript of the father’s testimony at a motion for summary judgment heard on July 24, 2019 concerning the parents’ four older children who are in the care of the society. The society worker refers in her materials to an affidavit dated March 6, 2020 and July 25, 2019 with respect to the parties four older children. Those affidavits were not prepared for this motion and it would be unfair to the parents to have to reply to three affidavits. Further there was no factum of the society as to what in those affidavits should be considered. I do not consider those affidavits in my decision.
[3] The parents oppose the society’s motion. The mother seeks a return of the child to her care and the father seeks an order returning the child to either the parents’ joint care or the mother’s sole care pursuant to the supervision of the society.
Legal considerations on temporary care and custody motion
[4] The legal test for me to apply on this motion is set out in subsections 94 (2), (4) and (5) of the Child, Youth and Family Services Act, 2017 (the Act) that read as follows:
94 (2) 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.
Criteria
(4) The court shall not make an order under clause (2) (c) or (d) unless the court is satisfied that there are reasonable grounds to believe that there is a risk that the child is likely to suffer harm and that the child cannot be protected adequately by an order under clause (2) (a) or (b).
Placement with relative, etc.
(5) Before making a temporary order for care and custody under clause (2) (d), the court shall consider whether it is in the child’s best interests to make an order under clause (2) (c) to place the child in the care and custody of a person who is a relative of the child or a member of the child’s extended family or community.
[5] At a temporary care and custody hearing, the onus is on the society to establish, on credible and trustworthy evidence, that there are reasonable grounds to believe that there is a real possibility that if a child is returned to the respondents, it is more probable than not that he will suffer harm. Further, the onus is on the society to establish that the child cannot be adequately protected by terms of conditions of an interim supervision order. See: Children's Aid Society of Ottawa-Carleton v. T. 2000 CanLII 21157 (ON SC), [2000] O.J. No. 2273 (Ont. Sup. Ct.). This is a two-part test.
[6] The court must choose the order that is the least disruptive placement consistent with adequate protection of the child (subsection 1 (2) of the Act): Children's Aid Society of Hamilton v. B.D. and F.T.M., 2012 ONSC 2448.
[7] Subsection 94(10) of the Act permits the court to admit and act on evidence that the court considers credible and trustworthy in the circumstances. In determining what evidence is credible and trustworthy, the evidence in its entirety must be viewed together.
[8] Exposure to a pattern of domestic violence has been accepted as creating a risk of emotional harm to children. Children's Aid Society of Toronto v. M.S., [2010] O.J. No. 2876 (SCJ).
Evidence of past conduct toward children
[9] The court may at any stage in the proceeding consider evidence of past conduct towards children. Section 93(1) and (2) of the Act.
Temporary access
[10] Subsection 94 (8) of the Act provides that where an order is made under clause (c) or (d) of subsection 94 (2), the court may order access on any terms that it considers appropriate. In determining what order is appropriate, the court should consider the paramount purpose of the Act, being the best interests, protection and well-being of children and the secondary purposes of maintaining the integrity of the family unit, assisting families in caring for their children and recognizing the least disruptive action consistent with the best interests of the children (subsections 1(1) and (2) of the Act) .
Position of the society
[11] The position of the applicant is that the child would not be safe in the care of either parent because of the substantial risk of being exposed to domestic conflict or violence, and neglect of physical and emotional needs. The child has high medical needs requiring regular physician and hospital attendances. The child is in a body cast to correct the alignment of his leg.
Position of the parents
[12] The father asks that the court not consider “recycled evidence” as it relates to the older children. I agree that they should not be forced to respond to affidavits prepared and filed in another case involving the older children. Further the paper file is not before me, so I don’t have any affidavit filed in 2019. There was no facta and the very brief confirmation of the society did not refer to the issues of the temporary care hearing only a request for a section 98 parenting capacity assessment.
[13] Both parents submit I should find that caring for one new born child is less onerous than caring for 4 older children. They claim they no longer fight. They claim they no longer live together. The mother claims her home is no longer hazardous, is clean and her father has repaired the damage done to the home by the angry outbursts of the respondent. They claim the mother’s family is a support to the parents. They claim they can work with the society.
Evidence of risk of harm to the child – including past conduct towards children
[14] The parents have four other children who are in the care of the applicant society. These children are under the age of 6. The applicant relies on section 93 of the CYFSA as to the parents’ conduct towards these children in support of its motion. The society has been involved with the family since 2017. There has been a finding that the children are in need of protection.
[15] The parents acknowledge the extreme neglect of the older children when they came into care on July 24, 2019. They came into care as a result of the father’s evidence to the court during a motion for Summary Judgment as to the protection concerns for the older children. The mother did not attend the hearing. He described the mother neglecting the children because of her obsessive use of social media. He described the children in extremely soiled diapers with “really bad” diaper rashes. He found knives in the children’s bedroom with the mattresses cut up and “completely destroyed” with a strong smell of feces in their bedroom. He says the children were not fed. He says his eldest child was not going to school and the children were not brushing their teeth. He described the mother yelling at the children so that the neighbours heard. He testified, “they’re being treated like dogs”. All protection concerns were verified when the worker went that day to the mother’s home and pursuant to my order apprehended the children and brought them to a place of safety.
[16] He also described domestic conflict in the home. He said he threw the mother’s phone out of the window and argued with the police who were called to the home. He acknowledged that he was not be at the home pursuant to a court order, but he couldn’t stay away due to his concerns for the children’s wellbeing.
[17] He also indicated that the children couldn’t be placed with his family as he was molested as a child. He also said they could not go to maternal grandparents as he didn’t trust them as the grandfather had been charged with rape of the respondent mother’s sister and he is a driver who regularly gets speeding tickets.
[18] The father acknowledges his issues with anger management. He described having a block of wood in his room that he punched until his hand hurts.
[19] The father was offered services to assist with his emotional regulation and anger management. A parenting capacity assessment was ordered in 2019 but the father refused to participate. Counselling was offered to the father and he did not attend. The father could have had a psychiatric assessment, but he refused to wait to see a doctor for the referral despite the society sending a worker to assist him. He now indicates that he will participate in any assessment that can be arranged. He claims that because he has no criminal conviction for domestic violence, only a section 810 peace bond under the Criminal Code, I should not find there was domestic violence in the relationship. He acknowledges police involvement on several occasions involving conflict between the parents and once involving someone who made comments about their child.
[20] Although the parents both confirm conflict in their relationship they continue to be together frequently. When the worker attends at the mother’s home the father is present or attends while she is there although for the last two months, he has his own home. The father has great difficulty working with the applicant society and its workers. The workers are anxious in situations with the father due to his aggression towards them. In the past he has advised the court that he doesn’t want the society to contact him and he will deal directly with the court.
[21] Although the parents say their relationship is now conflict free, they are not attending for any counselling or assistance. When the summary judgment hearing was held in July 2019 for the older children the father admitted to the court that he cannot care for the children on his own due to his anger issues and he loses touch with reality. The father could have been assessed by a psychiatrist and participated in a parenting capacity assessment to address these issues in 2019 but did not. If find that the risk of harm to the child in the father’s care is substantial based on the evidence as it relates to the 4 older children and his inability to stay out of the mother’s home.
[22] The applicant has offered services to the parents to allow the children to remain in the mother’s home under supervision.
[23] The parents were offered help through the managed access program, but the father refused to participate, and the mother had difficulties implementing strategies suggested to her by the worker. The mother was told to arrange for day care to help socialize the children and to allow her more time with fewer children in the home, but she did not. While in supervised access settings she was unable to watch all four children and the youngest was left unattended in the high chair and almost choked without the mother noticing. The mother has not attended all her access visits and has been late which has caused the children to be disappointed.
[24] Since the children came into care in 2019 there has been evidence obtained by the society about the children’s physical safety and neglect. When the children came into care there were issues of extreme dental decay. The family doctor confirmed that despite the mother saying otherwise the children were not up to date on inoculations. The four-year-old was not toilet trained and the child who was 2 years and 9 months was non verbal. The children’s physical and emotional health had been neglected.
[25] The eldest child had a hospital visit to correct a vision problem that could have been addressed by the parents by ensuring the child wore corrective lenses, but they did not. After the surgery the physician directed the mother to give the child water. Instead she gave the child three glasses of sprite and the child vomited. She admitted she did not understand the doctor’s directions. If the mother could not understand the difference in giving a child water instead of sugary pop after surgery, I am concerned about the care of a non verbal baby in a cast in the mother’s care.
[26] The mother included parts of the recommendations from the parenting capacity assessment for the four older children in her affidavit. She includes a recommendation that she obtain a mental health assessment and engage in individual counselling. She admits that she didn’t investigate this further although the worker told her to ask if she needed assistance. She submits that she is passive in engaging services or advocating for herself. The mother has cognitive limitations and needs assistance to care for herself and the children. If she is not ready to have the four older children returned to her care because she has not followed through with recommendations to assist in her parenting, she is not ready to have a high medical needs child in her care.
[27] The mother did not obtain prenatal care for this child until she was about 7 months into her pregnancy. She told the worker that she did not know she was pregnant although the worker questioned her since she was concerned that she was pregnant. The mother said she had an IUD implanted in December 2019. Her older children spontaneously told the worker that they were expecting a baby brother or sister. When the respondent mother told the worker in February 2020 that she had just discovered she was pregnant she said she was also unsure that she had seen a doctor and had an IUD. She did not make plans for the care of the child and consented to the society making a referral to the adoption department. She changed her position as to potential adoption after she told the father of her pregnancy at the end of March 2020.
[28] There is credible and trustworthy evidence to support that if the child was returned to the mother or father or both there is substantial risk that he is likely to suffer harm through exposure to domestic violence and emotional and physical neglect.
Less intrusive plans for the child
[29] There is no other family member who can take the child. The respondent mother’s parents did not follow through with the kin worker to complete their assessment.
[30] The father at the place of safety hearing told the court that he has problems with and gets mad at the maternal grandparents. Their involvement would likely increase conflict in the family.
[31] The father’s parents abused and neglected him and as a result he came into care of the society as a child. They cannot assist.
Supervision of the parents
[32] The parents have not been able to follow the direction of the society with respect to the care of the four older children. If this child were placed with them I find based on the credible and trustworthy evidence there are no terms and conditions of supervision that would be able to prevent the father from attending at the mother’s home, reduce conflict between the parents and family members or to help the mother address the needs of the child including his medical needs except for constant 24 hours a day, 7 days a week supervision in the home. Unfortunately, there is no such supervision available to the parents.
Access
[33] The parents did not address the issue of access in their materials or submissions. To my knowledge the father has not had access to the older children since they came into care in July 2019 since he will not work with the current worker. The mother has demonstrated a commitment to the children and attends ready for the access that she attends although she does struggle with managing the needs of all the children. I find the society needs to have flexibility to arrange for the access.
Order
[34] The child, M.L.C., born […], 2020 shall remain in the temporary care of the society. There shall be separate access for each parent to the child, supervised by the society or a third party approved by them as is consistent with the child’s best interests. If the parties cannot agree on the specific terms of access, each party may provide short written submissions (served on each party first) to my attention at Belleville.scj.courts@ontario.ca within 14 days on this issue.
[35] The matter is adjourned to September 28, 2020 at 11:30 am for settlement conference by Zoom. The call-in information will be provided by the trial coordinator.
Justice W. Malcolm
Date: August 6, 2020