COURT FILE NO.: FC-19-487
DATE: 2020/08/24
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 (Moving Party)
AND:
S. I., Respondent Mother
AND:
MD. T. A., Respondent Father
BEFORE: Madam Justice J. Breithaupt Smith
COUNSEL: Ms. Dianne Sousa for the Applicant Society
Both Respondent Parents are Self-Representing
Ms. Phaedra Klodner for the Children
HEARD: August 17, 2020
E N D O R S E M E N T -- COVID 19 PROTOCOL
[1] AS A RESULT OF COVID-19 the regular operations of the Superior Court of Justice are suspended at this time, as set out in the Notice to the Profession dated March 15, 2020 available at https://www.ontariocourts.ca/scj/covid-19-suspension-fam/
[2] In accordance with the consolidated Regional Notice to the Profession issued on June 26, 2020 effective July 6, 2020 and the Protocol for Central South dated April 7, 2020, electronic materials were filed by email to Kitchener.Superior.Court@ontario.ca:
a. The Applicant Children’s Aid Society of the Region of Waterloo (the “Society”) filed:
i. Protection Application returnable December 3, 2019;
ii. Notice of Motion returnable December 3, 2019;
iii. Affidavit of Rebecca Hennig dated December 2, 2019;
iv. Society’s Plan of Care dated December 2, 2019;
v. Answer of Respondent Mother dated December 23, 2019;
vi. Answer of Respondent Father dated January 2, [2020][^1];
vii. Notice of Motion returnable August 17, 2020;
viii. Affidavit of Christian Appleton dated July 13, 2020;
ix. Endorsement of Madam Justice Madsen dated July 23, 2020 allowing the filing of the Voice of the Child Report (Voice of the Child Report filed as Exhibit “A” to the Affidavit of Tanya Peterson dated July 27, 2020);
x. Previous Endorsements made between December 3, 2019 and July 7, 2020;
xi. Factum inclusive of hyperlinked authorities;
xii. Draft Order (in Word format);
xiii. Confirmation; and
xiv. Affidavits of Service.
b. The Respondent Mother (“Mother”) filed:
i. Her Affidavit dated July 28, 2020;
ii. Confirmation; and
iii. Affidavits of Service.
c. The Respondent Father (“Father”) filed:
i. His Affidavit dated July 15, 2020;
ii. His Affidavit dated August 10, 2020;
iii. Factum;
iv. Confirmation; and
v. Affidavits of Service.
d. The Children’s Lawyer (“OCL”) filed:
i. Affidavit of Tanya Peterson[^2] dated July 8, 2020;
ii. Affidavit of Tanya Peterson dated July 27, 2020;
iii. Factum;
iv. Book of Authorities;
v. Confirmation; and
vi. Affidavits of Service.
[3] Upon the resumption of court operations, the parties shall file their materials in the continuing record at the courthouse if they have not already done so. I confirm that I do not have access to any other portion of the Continuing Record.
Scope of Relief Sought
[4] The Society’s Motion before the court seeks:
a. In the context of sections 90 through 94 of the Child, Youth and Family Services Act, 2017 (the “CYFSA”), a Temporary Order placing the nine children in this family in Mother’s care under terms of supervision; and
b. In the context of section 104 of the CYFSA, a Temporary Order regarding Father’s access with the children such that the Society retains discretion over scheduling of access and over the level of supervision.
[5] Mother generally supports the Society’s position, and consents to a Temporary supervision order placing the children in her care, although she asks that Father’s access be ordered to be supervised.
[6] Father consents to a Temporary Order placing the children in Mother’s care. He opposes any need for supervision of his access with the parties’ three youngest children. He does not seek an order for access with the parties’ six older children, taking the position that he respects their views and preferences in declining to see him at this time.
[7] For the children, Ms. Klodner’s position is that access with Father should be supervised by the Society and should proceed only with all nine children being present.
Summary of Conclusions Reached
[8] The Society’s request for a Temporary Order placing the children in Mother’s care under terms of supervision proceeds on consent. A Temporary Order shall issue accordingly.
[9] Regarding the second aspect of the Society’s motion, I order that Father is to have access in the discretion of the Society with respect to scheduling, duration and frequency. All such access is to be supervised by the Society and with at least two of the three eldest children, Y. T. (17), S. A. (15), and/or S. T. (almost 14) to be present at all times. There will be no requirement that all nine children attend together.
Background
[10] These parents had an arranged marriage in Dhaka, Bangladesh on January 2, 2003. There are nine children from this marriage, namely:
a. Y. T. (17)
b. S. A. (15);
c. S. T. (almost 14);
d. A. A. (12);
e. D. A. (10);
f. Z. T. (9);
g. A. A. (7);
h. S. A. (almost 6); and
i. F. A. (4).
[11] The family (then two parents and four children) arrived in Canada in April of 2009. Father has not worked consistently since their arrival here. Mother has been the primary caregiver for the children and has homeschooled them to Grade 8 in accordance with the Ontario curriculum. She continues to homeschool the six youngest children. The three eldest children will attend high school within walking distance of the home as of September 2020. In addition, a local Imam meets with the children regularly to provide religious and cultural instruction.
[12] The parties separated on or about April 22, 2018. Thereafter, they reached an agreement regarding all financial issues between them via mediation, filing the Closed Onsite Mediation Report in the context of the matrimonial litigation on January 24, 2020. Part of the resolution included the obligation of Father to pay Mother $813.00 monthly in child support. Between child support, the Canada Child Benefit and rental income for a property in her name gifted to her by her father, Mother confirms that she is able to meet the children’s needs financially.
[13] Mother says that the marriage was characterized by violence and abuse, including both verbal and financial abuse. She attests that the violence became public when, on May 27, 2018, Father parked his vehicle at the end of the driveway to the former family home. Three of the four youngest children were sitting in the vehicle. Mother says that when she went inside to check on another of the children, a verbal argument ensued which culminated in Father punching Mother repeatedly in the head. Five of the children witnessed the incident. The incident was captured on surveillance video and Father was charged. The details of the outcome of the criminal proceeding are not set out in the materials, other than that the proceeding concluded with a non-contact order which remained in effect until January 11, 2019. The Society was involved as a result of the police report confirming that the children had witnessed the incident. Mother was cautioned about physical discipline as a result of disclosures made by the children to the intake worker. Father states that he declined to meet with the intake worker at that time because he was experiencing depression as a result of the marriage breakdown. The Society closed its file on June 21, 2018.
[14] Father does not deny the allegations made by Mother of the violence perpetuated against her in any document presented by him at this hearing. Father alleges that both he and Mother physically disciplined the children. Mother says that any physical discipline was a direct result of pressure by Father upon her to comply with his demands. None of the children report on-going physical discipline by Mother.
[15] This family was brought to the attention of the Society repeatedly throughout last year, as follows[^3]:
a. On January 28, 2019, Mother reported the children’s concerns about Father’s toxic comments to them regarding Mother and their Imam. Father was cautioned and the file was closed on March 6, 2019.
b. On April 18, 2019, Mother reported that the children were afraid of Father and that he had yelled at them during an access visit and had followed them with his vehicle, threatening them with harm. In interviews, the children further disclosed that Father followed two them, who were on foot, with his vehicle and threw packaged food out the vehicle window at them. The interviewing worker cautioned both parents not to involve the children in their custody/access conflict and the file was closed on May 30, 2019.
c. On September 4, 2019, the Society received a referral from Waterloo Regional Police Services (“WRPS”) advising them that two of the children reported being threatened by Father with a knife at an access visit. Police did not lay charges due to inconsistencies in the children’s statements with respect to the exact nature of the alleged threats. Father denied any wrongdoing and declined an offer of counselling with the children. The Society’s file was closed with a written warning letter on October 2, 2019.
d. Finally, in the context of the family litigation, Ms. Tanya Peterson was assigned as Clinician through the Office of the Children’s Lawyer to provide a Voice of the Child Report. As a result of disclosures made by the children to Ms. Peterson about Father’s verbal and physical abuse, her supervisor contacted the Society and WRPS via email on November 22, 2019, writing: “If your agency is unwilling to reopen your file and take steps to protect these vulnerable children, the OCL will make a report to the police and consider bringing a third-party protection application on behalf of the children.” This initiated a joint Society/WRPS investigation which resulted in these child protection proceedings and in eighteen (18) criminal charges against Father.[^4]
[16] On March 10, 2020, Father advised the Society that he had obtained a variation in the terms of his release such that he could potentially have contact with the children. Conditions 5 and 6 of his release order dated March 9, 2020 read:
Abstain from communicating directly or indirectly with [children’s names redacted] EXCEPT in accordance with a valid family court order dated after today’s date.
Abstain from attending the residence, place of employment, place of education, place of worship or anywhere you know [children’s names redacted] to be, EXCEPT for attending court, family mediation, or in accordance with a valid family court order dated after today’s date.
[17] The Society therefore brought this motion to obtain a fresh Temporary Order so as to ensure that there is no confusion regarding Father’s contact with the children.
Analysis
A. Placement of Children with Mother
[18] All three Plans of Care submitted contemplate that the children will remain in the primary care of their Mother. Mother has homeschooled all nine of the children up to Grade 8, with the three eldest children now attending high school at a location close to her residence. Mother has chosen to move out of the home where the family resided together and into a different residence so as to provide safe space for the children. Mother confirms in her Answer/Plan of Care that she has installed security cameras around the new residence, and that she drives the eldest children back and forth to high school and accompanies them to parks and to mosque for safety reasons. She and the children have significant support through the Elgin Street mosque in Cambridge and the local Islamic school, Ontario Muslim Academy. Although she has no family locally, Mother has supportive friends who have assisted her in times of crisis. Individual interviews with the children confirm that they are happy and settled in Mother’s care. The Society has no concerns about Mother’s ability to provide and care for the children. I am satisfied that the placement is in their best interests.
B. Access between the Children and Father
[19] The access issue proceeds under section 104 of the CYFSA, as the subsection pertaining to access set out at section 94(8) specifically focuses on orders made regarding access between children and the person from whose care they were removed. In this matter, it is undisputed that the children were in Mother’s care and have not been removed from her care. Section 104(1) and (5) are therefore operative regarding Father’s access. They read:
104 (1) The court may, in the child’s best interests,
(a) when making an order under this Part; or
(b) upon an application under subsection (2),
make, vary or terminate an order respecting a person’s access to the child or the child’s access to a person, and may impose such terms and conditions on the order as the court considers appropriate.
(5) No order respecting access to a person 16 or older shall be made under subsection (1) without the person’s consent.
[20] Section 74(3) of the CYFSA sets out the criteria in determining a child’s best interests. It is reproduced as Schedule “A” to these Reasons.
[21] There are no allegations that Father has been violent with the two youngest children. All of the seven eldest children report physical and verbal abuse by Father against each of them, including the following examples:
a. Standing within inches of a child’s face and screaming at the child with fists raised;
b. Calling the female children “whore” or “prostitute” and using other defamatory and disrespectful language in the family’s mother tongue;
c. Telling the children that they had “betrayed” him;
d. Threatening that he would send someone to kill them or to break their nose and teeth and leave them at the side of the road;
e. Beating the children with: a folded belt; bamboo sticks; a black plastic spoon; a wooden back scratcher; or the spoon used by Mother to make bread;
f. Beating them if there was a wrinkle in their beds or if they asked for a drink of water;
g. Beating one of the female children when she was 5 years old for spilling juice;
h. Beating the eldest child for supposed transgressions by the younger children, such that she believes that she has permanent back pain as a result;
i. Hitting one of the male children so hard in the head that it “hurt for weeks;”
j. Hitting the children on their hands to the point where they couldn’t move their hands;
k. Hitting one of the male children in the face such that three finger marks were left on his cheek; and
l. Hitting the eldest child with his fists on her back and face.
[22] Certain comments by the children to their lawyer (found in the Affidavit of Ms. Peterson, Clinician), resonate strongly with the court:
a. Y. T. (17) had strong feelings that if her siblings were to visit with their father on their own, she would be worried that they would be “in danger for their life.” She indicated that she believes that some future contact with Father would help with her healing and moving forward if at some point she could confront her fear of her father and see him again.
b. S. A. (15) stated that he felt “a need to protect his siblings” and that visits should take place at the Society office or somewhere where the visits could be monitored and there was “a surveillance system” in place.
c. S. T. (almost 14) stated that her Father “hates her” and her siblings. She said that the mosque was not a safe place for visits because some of her Father’s friends have told him in her presence that it is OK for him to hit the children.
d. A. A. (12) said that visits needed to be supervised at a place where there “are guards to stop the abuse.”
e. D. A. (10) said that he would not feel comfortable visiting Father alone, even if there was another adult present in the room because his Father could punch him and maybe eventually he would get restrained, but that the damage would already be done: “there should be someone around so he can’t hit us.”
f. Z. T. (9) said that she feels her father is nice for strangers but then “flips his mind” and that he does not care about them and that she would be scared for her youngest siblings; thus they need to attend together to support one another.
g. A. A. (7) said that he does not want to visit unless there were cameras and someone was watching.
[23] The children are united in telling this court that access with Father must be supervised. Several of them ask that any access visits be delayed for a period ranging from six to nine months to allow Father to “cool down.” I note that such a time period has now effectively elapsed. Three of the younger children express a fear that Father will abduct them. The eldest three children expressed that all nine children should be together for any access visits with Father. The three middle children expressed that they would not want to visit with Father unless their siblings attended, although it is unclear whether all nine siblings attending together was the specific view. Of the three youngest children, only A. A. (7) expressed a clear view, namely that he was concerned that his siblings should be with him at visits – again, it is unclear whether he meant all nine siblings together or some siblings together as a group.
[24] Father denies abusing the children. He repeatedly assured this court that he understands that it is contrary to Canadian law to beat one’s children. From his perspective, there would be no need to do so, as he attests: “Prior to April 22, 2018, I cannot recall a single incident where any of my children ever disrespected me and I loved all of them dearly.”
[25] Father’s primary theory is that the eldest child (Y. T., age 17) is intentionally alienating all of the other children from him with the support of Mother in this goal. He points to the following in support of his position:
a. she is motivated by retribution against him for his refusal to permit her to get married underage to a man aged 24;
b. she sent him emails during the operative period of the first restraining order (in November of 2018) to bait him into responding so that he could be charged with breaching the terms of the restraining order;
c. at previous visits (at the mosque), the children were calling him names and being disruptive, which resulted in his responses to them;
d. she is lying about her back injuries, which in fact resulted from a motor vehicle accident approximately three years ago;
e. a statement attributed to her that the younger children “seem to enjoy [access with Father] some of the time” indicates that she is not happy to see the younger children happy when visiting with him and that she must be trying to make the younger children understand that he is a bad man;
f. the fact that he and Mother raised the older children to be leaders and all of the children to stick together has resulted in the younger children “being told how to think and what happened;” and
g. because another of the children expressed concern about retribution from him arising from his reaction to reading the OCL Report but did not mention that Mother would also receive a copy of the OCL Report, this suggests that this child was actually fearful that she would get into trouble from her older siblings.
[26] In the alternative, Father argues that the children’s statements are inconsistent and/or they do not understand the “limitations on confidentiality” of their statements to Ms. Peterson, and therefore their evidence should be disregarded. He writes: “Children are quite smart so getting the whole truth is quite challenging.” He points to the WRPS incident report from September of 2019 in which the attending officer did not lay charges of uttering threats against him, as the officer wrote: “After speaking with the three children there was consistency with regard to some issues however inconsistency regarding any threats made.” He alleges that the involvement of the Office of the Children’s Lawyer “forced my children to talk negatively about their parents to a stranger” and that the appointees of that office “are independent contractors and they do not benefit if the family is together.”
[27] The Society’s position is that all terms of access between the children and Father should be in the Society’s discretion. Ms. Sousa capably argues that discretion allows for flexibility, which is a significant issue given the size of this family and the limited resources available for visits to be supervised at the Society’s facility. Flexibility could include scheduling visits for some, but not all, of the children at given times based on what the Society’s facility can accommodate. In support of this position, Ms. Sousa points to two cases in which the Superior Court sat in an appellate role – the first as the Divisional Court and the second in review of a decision of the Ontario Court of Justice. In H.(C.) v. Durham Children's Aid Society[^5], the three-member Divisional Court opined that it would not be in the best interests of the children for parties in child protection litigation to have to return to court for every day-to-day access issue, writing: “The Society has the statutory mandate and the expertise to deal with these day-to-day issues. It is thus appropriate to leave the day-to-day discretion with it.” In L.R. v. Children’s Aid Society et al[^6], Horkins, J. implicitly relied upon the phrase “…and may impose such terms and conditions on the order as the court considers appropriate” in upholding the trial judge’s authority to make an access order in the discretion of the Society. Neither of these cases are binding, but they are certainly logical and persuasive authority.
[28] The OCL argues that all nine children must have access together, in accordance with their stated wishes, and that all access must be supervised. In particular, Ms. Klodner requests that any order specify that a change from supervised access to unsupervised access cannot be made except on further motion to the court. This would provide the children with stability and would ensure that they are consulted before any change is made to the supervised access arrangements.
[29] Father asks that he have access with the three younger children unsupervised in the community. He indicates that he respects the wishes of the older children in declining to see him.
[30] Mother supports the Society’s position and the position of the OCL.
[31] I have one additional concern, which is the availability of an access supervisor who speaks this family’s mother tongue. The children comment consistently about Father’s use of derogatory and profane language in their mother tongue, with the seven-year-old telling Ms. Klodner and Ms. Peterson that “[the children] can’t get away from the bad words.”
[32] Having reviewed the evidence presented on this motion, including the content of the parents’ Plans of Care, I conclude that it is in the best interests of the three younger children to have some court-ordered contact with Father. No order can be made without the eldest child’s consent regarding her contact with Father, and therefore she will be the access-holder on a temporary basis. With respect to the remaining five children, their views and preferences are clearly stated – if access is to take place with Father, it must be supervised and as many of the children should be present at the visits as possible. Having two of the older children present at any visit will ensure that they can support their younger siblings and monitor Father’s comments, especially if an access supervisor fluent in the family’s mother tongue is not available.
Order
[33] Based on all of the foregoing, Temporary Order to go:
- The children, [names and birthdates redacted], are placed in the care and custody of their mother, Mother, subject to the supervision of The Children’s Aid Society of the Regional Municipality of Waterloo on the following terms and conditions:
a. Father and Mother will co-operate with The Children's Aid Society of the Regional Municipality of Waterloo.
b. Father and Mother will meet with a worker from The Children's Aid Society of the Regional Municipality of Waterloo at the home, agency and/or community as requested by the worker.
c. Father and Mother will sign consents to release information to allow The Children's Aid Society of the Regional Municipality of Waterloo to communicate with service providers and vice versa.
d. Father and Mother will advise The Children's Aid Society of the Regional Municipality of Waterloo in advance of any change in address and/or telephone number.
e. Mother will allow a worker from The Children's Aid Society of the Regional Municipality of Waterloo to have access to the home and to [the children] at home and at school on both a scheduled and unscheduled basis.
- Access between the children and their father, Father, as follows:
a. There is a right of access to the children, [eight youngest children], by their father, Father, at the discretion of The Children’s Aid Society of the Regional Municipality of Waterloo as to scheduling, duration and frequency.
b. [Eldest child] shall have an independent right of access to her father, Father, and she shall be the access-holder.
c. All access between the children, or any of them, and their father, Father, is to be supervised by the Society until further Order of the Court.
d. Access between any of [the six youngest children], and their father, Father, is to be in the presence of any two of the three eldest children, [names redacted].
e. Any instance of access may be discontinued by the access supervisor in accordance with any child’s responsible wishes as expressed to the access supervisor.
- Approval of this Order by unrepresented parties be waived.
J. Breithaupt Smith, J.
DATE: August 24, 2020
Schedule “A”
74 (3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall,
(a) consider the child’s views and wishes, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained;
(b) in the case of a First Nations, Inuk or Métis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Métis cultures, heritages and traditions, of preserving the child’s cultural identity and connection to community, in addition to the considerations under clauses (a) and (c); and
(c) consider any other circumstance of the case that the person considers relevant, including,
(i) the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs,
(ii) the child’s physical, mental and emotional level of development,
(iii) the child’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression,
(iv) the child’s cultural and linguistic heritage,
(v) the importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family,
(vi) 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,
(vii) the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity,
(viii) the merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent,
(ix) the effects on the child of delay in the disposition of the case,
(x) 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, and
(xi) the degree of risk, if any, that justified the finding that the child is in need of protection.
[^1]: The Answer is dated January 2, 2019 which is a typographical error.
[^2]: Ms. Peterson was assigned through the Office of the Children’s Lawyer, initially to prepare a Voice of the Child Report in the context of the matrimonial litigation between the parents (which Report was dated January 14, 2020) and again as Clinician to assist Ms. Klodner in her capacity as counsel for the children in the child protection matter.
[^3]: I note that this information is contained in Ms. Hennig’s review of the Society’s records in her Affidavit dated December 2, 2019. The source documents are not provided, but as Ms. Hennig identifies each of the workers involved in the making of the Society’s records and confirms her belief that the contents are true, and thus they are admissible into evidence under Rule 14(19)(a) of the Family Law Rules.
[^4]: S. 266 CCC - Assault x 7; s. 267(a) CCC - Assault with Weapon x 7; s. 264(1)(1)(a) CCC - Uttering Threats x 4.
[^5]: 2003 CanLII 57951 (ON SCDC).
[^6]: 2020 ONSC 4341.