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 (7) Order excluding media representatives or prohibiting publication. — Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding, the court may make an order,
(c) prohibiting the publication of a report of the hearing or a specified part of the hearing.
(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-20-278
DATE: 2020-10-07
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: The Children’s Aid Society of the Regional Municipality of Waterloo, Applicant
AND
T.C., Respondent mother
R.H., Respondent father
BEFORE: The Honourable Madam Justice J.D. Walters
COUNSEL: C. Smith, for the Applicant
Mr. Rae, agent for Mr. Punnett, counsel for T.C.
Mr. Wintar, counsel for R.H.
HEARD: August 19, 2020
THE HONOURABLE MADAM JUSTICE J.D. Walters
Corrected decision: The correction was made on January 20, 2021.
The citation, CAS v. T.C. and R.H., ONSC 6104 on page 2, has now been
corrected to read: CAS v. T.C. and R.H., 2020 ONSC 6104
DECISION
Overview
[1] The Children’s Aid Society of Brant (Brant CAS) commenced a child protection application on June 12, 2020 when the child, M.D.J.C. (“the child”) was apprehended from the care of the Respondent mother. A temporary without prejudice order was obtained on June 12, 2020 (“the Order”) placing the child in the care of the Brant CAS. The Order granted the Respondent mother and the Respondent father access to the child at the discretion of the Society as to time, location, duration and supervision, but at a minimum of once every three days. The matter returned to court on June 24, 2020. On the return date, Brant CAS brought a motion to place the child born […], 2020 with the Respondent father, R.H. (Vol. 1, Tab 6 of the Continuing Record). The child remained in the care of the Brant CAS on June 24, 2020 as the Respondent mother did not consent to the Order sought. On June 24, 2020, the matter was transferred to the Family and Children’s Services of the Waterloo Region (“the Society”). The matter was before Justice Madsen on July 14, 2020 to schedule a temporary care and custody hearing. Filing deadlines were ordered on that date. On August 19, 2020 the temporary care and custody hearing was argued before me.
[2] There is one child that is the subject of this proceeding namely, M.D.J.C. The child has been in the care of the Society since June 12, 2020.
[3] T.C. is the mother of the child (“the mother”). T.C. had the child in her care from the child’s birth up until June 8, 2020 when a child protection worker with Brant CAS and a Society worker removed the child from her care pursuant to a warrant and with police assistance. Ms. Boyes’ affidavit sworn June 10, 2020 is filed in support of the protection application (Volume 1, Tab 3 of the Continuing Record). Society worker, Catherine Bird, also swore an affidavit in support of the protection application dated June 10, 2020 (Volume 1, Tab 1 of the Continuing Record). The matter proceeded to court in Brantford on June 12, 2020 and the Order was obtained.
[4] R.H. is the father of the child (“the father”). T.C. and R.H. had a brief relationship which resulted in the birth of the child. They are not together and have each re-partnered.
[5] Both parents have presented a plan to the Society to care for the child.
[6] On August 19, 2020 a temporary care and custody hearing was held. The mother seeks the return of the child to her care. The father seeks the return of the child to his care. The Society supports the return of the child to the father’s care pursuant to terms of supervision as set out in the motion originally brought by Brant CAS.
[7] The Society relies on the following documents in its motion for placement of the child in the care of the father:
(a) the affidavit of Deanne Boyes, sworn June 10, 2020;
(b) Affidavit of Catherine Bird, sworn June 10, 2020;
(c) Affidavit of Silvia Cuevas, sworn June 10, 2020;
(d) Notice of Motion returnable June 24, 2020;
(e) Affidavit of Catherine Bird, sworn June 18, 2020;
(f) Affidavit of Catherine Bird sworn July 23, 2020; and
(g) Affidavit of Catherine Bird sworn August 13, 2020.
[8] The mother relied on the following documents:
(a) Affidavit of the mother sworn June 11, 2020;
(b) Affidavit of the mother sworn June 12, 2020;
(c) Affidavit of Mr. McLaughlin sworn July 16, 2020;
(d) Answer and Plan of Care of the mother dated July 20, 2020;
(e) Affidavit of the mother sworn July 20, 2020; and
(f) Affidavit of the mother sworn August 6, 2020.
[9] The father relied on the following documents:
(a) Affidavit of the father sworn July 30, 2020;
(b) Affidavit of the father sworn August 18, 2020; and
(c) Affidavit of the father sworn August 18, 2020.
[10] I have reviewed the above noted documents.
Brief Background
[11] Both parents have a history with the Society dating back to 2012 for the mother and 2007 for the father.
[12] Both parents have other children with whom the Society has been previously involved. The subject child is the only child these parents have had together.
[13] The child is currently in the care of the Society pursuant to the Order of Justice G.B. Edward dated June 12, 2020.
[14] The parents have been having access with the child since he was placed in care.
[15] The mother’s access occurs every three days at a minimum.
[16] The father’s access occurs every three days at a minimum.
[17] The Society began to increase the father’s access with the child on August 14, 2020 but did not file any evidence to indicate how access between the father and the child has been progressing since an increase in his access began.
[18] The mother served and filed an Answer and Plan of Care in this proceeding. The mother is seeking the return of the child to her care. The mother’s plan includes that her common-law partner, Billy Joe McLaughlin (B.M.) will live with her and assist in the child’s care. The mother is also seeking sole custody of the child.
[19] The father has not served and filed an Answer and Plan of Care. The father has filed affidavit material in support of the Society’s motion to place the child in his care. The father’s partner, Tasha Sampson (T.S.) lives with him and has her own children in her care. TS is part of the father’s plan.
[20] The mother has three children (A.C. born […], 2012, S.C. born […], 2016 and T.C.M. born […], 2017) with whom she shares joint custody with Tracey Donohue (“T.D.”) by two court Orders dated March 13, 2018 of Justice Caspers. The Orders specify that the children shall remain ordinarily residing with T.D. should the mother move out of the home. These three children do not reside with the mother currently and they are not the subject of this application.
[21] The father has three children (B.H. born […], 2009, K.H. born, […], 2012 and K.H. born […], 2014) from previous relationships. The father has regular access with two of the children alternate weekends. These children are not the subject of this application.
[22] Neither parent currently have children placed in their primary care.
[23] The matter regarding the mother’s three children, A.C., S.C., and T.C.M. resulted in final orders pursuant to a Statement of Agreed Facts. On March 13, 2018, Justice Capers made two orders for the three children which provide joint custody to the mother and T.D. The order also provides that the children shall remain in T.D.’s residence should T.C. relocate from T.D.’s residence and T.D. shall be the final decision maker for the children where disputes arise.
[24] The subject child was apprehended on June 8, 2020 and placed in care by court Order on June 10, 2020. Both parents seek placement of the child who is currently 5 months old in their care.
The Society’s Position
[25] The Society’s position can be summarized as follows:
The mother has three older children who were involved with Family and Children’s Services of Guelph and Wellington county (“Guelph CAS”). They were found in need of protection, on consent of the mother. Pursuant to a Statement of Agreed Facts these children were placed in the joint custody of the mother and T.D. These children currently reside with T.D.
The mother has a pattern of moving residences and being in unstable and volatile relationships.
The mother had an intellectual assessment completed in 2006 which indicates that she is in the extremely low range of intelligence.
The mother is currently receiving financial support from the Ontario Disability Support Program (ODSP) and is not working.
The mother intends to open an exotic pet store in her home which will include housing rats and python snakes. These animals previously posed a risk to the mother’s other children when one child was left in charge of ensuring the cages were closed and the snakes became loose in the home.
The mother requires daily monitoring when children are in her care and is unable to parent on her own safely.
The mother has a history of involvement in relationships with men who do not treat her well and she can be easily influenced. The Society is very concerned with her current relationship.
The mother does not follow through with the Society’s expectations. The Society set out a plan for the child to remain in the mother’s care following his birth and the mother did not follow the plan which resulted in his apprehension.
The mother regularly attends access three times a week without concern.
The mother’s living space was clean and well maintained and the exotic pets were in cages.
The father has had a history with the Society.
The father does not have custody of his previous four children, however, he has access with the two youngest children (who are not subject to this application) alternate weekends in his home.
The father has been in a relationship with his current partner for the past five years.
The father’s current partner has two children in her care and is a support to the father.
The father was not honest with the Society in the past but has recently begun to work cooperatively with the Society.
The father did not attend access consistently with the child in June and July 2020 as he experienced car troubles and was sick. He has recently begun attending access regularly and the Society began to expand his access on August 14, 2020 in the father’s home.
Since the access between the father and the child has expanded there is no evidence of protection concerns arising.
The Society believes the concerns with the father can be mitigated by a supervision order.
[26] The Society has an obligation to consider the least intrusive Order. The Society must first consider returning the child to the person from whom the child was removed. The child was removed from the mother’s care. The Society is not prepared to return the child to the mother for five main reasons:
Her pattern of rejecting supports;
her lack of ability to co-operate with a supervision order;
her inability to follow through with medical care for the child;
the nature of her relationship with her current partner B.M. B.M. has been aggressive with the Society and denies the Society’s concerns with the mother’s ability to function or care for children; and
the mother’s intellectual functioning is such that she cannot parent children on her own.
[27] The Society has had concerns with the father, however, takes the position that those concerns can be mitigated through a supervision order. The Society has met with the father and his current partner. The Society has assessed the father’s home as appropriate and has begun increasing access between the father and the child in his home.
[28] It is important to note that when this matter was heard the father advised that access had begun to be increased in the father’s home unsupervised. The Society did not file any evidence regarding the expansion of the father’s visits.
[29] On August 10, 2020, Karen Innanen prepared a significant event report which is attached as Exhibit “A” to Ms. Bird’s affidavit sworn August 13, 2020. The report indicates that the father’s access is to occur three times a week at the Society’s access center. In July and August, the father missed some of his visits. It is noted in the report that the father had attended 2 visits out of 14 scheduled visits since July 8, 2020.
[30] According to Ms. Innanen’s significant event report, the father attended a visit on July 15 and July 17. He missed his visits on July 8, 10, 13, 20, 22, 24, 27, 29, 31, August 5 and August 7.
[31] These visits are an hour in length and occur directly before the mother’s visits. Ms. Innanen’s report indicated that the child was being impacted by the father’s attendance issue. A note was made to discuss the possibility of the mother’s visit being first in the day in order to ensure that there was a caregiver in attendance for the child if the father did not attend for the visit.
The Father’s Position
[32] The father’s position can be summarized as follows:
(a) He has a two-bedroom apartment in Cambridge with his current partner and her two children. His two children visit alternate weekends. The child would be in a crib in the father’s room.
(b) The father has two pets: a cat and a dog, and he will ensure that the pets do not interfere with the child.
(c) The father is agreeable with a supervision order as proposed by the Society and will cooperate with the terms suggested by the Society.
(d) The father has the support of his current partner with whom he has been in a relationship with for the past five years.
(e) The father was separated from his current partner for five months when he fathered the subject child. His relationship with his current partner has resumed and they are both committed to this child.
(f) The father does not use drugs but does drink alcohol on occasion.
(g) There have been no concerns regarding domestic violence or conflict since he resumed his relationship with his partner. If they have an argument they do not argue in front of the children.
(h) He has had prior involvement with the Society and is currently working cooperatively with the Society.
(i) The father was previously employed but has ended his employment in order to be available to care full-time for the child.
(j) He had a good relationship with the mother. Their relationship ended on good terms and they communicate.
(k) He has regular access unsupervised with two of his three children and they spend alternate weekends together. There may be occasions where there are four children in the home in addition to the child.
(l) The father acknowledged that he missed a number of access visits over the summer. He explained that it was due to problems with his car and that he was sick. He has since begun having regular access with the child.
(m) The father’s biggest support is his partner, T.S. T.S. has two children in her care and the father advises that she supports the child being placed in their home. She works from home and is able and willing to assist the father with the child’s day to day care.
(n) The father has no outstanding criminal matters. He acknowledged that he was involved in some domestic incidents in the past, but he hasn’t had any involvement with police in approximately 8 years.
(o) The father is prepared to care for the child full-time, he has obtained the necessary items for his home for the child and he is following the direction of the Society. He is agreeable to a supervision order with terms as set out in the Society’s material.
The Mother’s Position
[33] The mother’s position can be summarized as follows:
The Society must first consider the mother’s plan before turning its mind to any other plan as the child was removed from the mother’s care.
The Society is relying on historical concerns and their evidence is speculative rather than actual evidence.
The child was in the mother’s care following his birth until June 8, 2020 and there was no concern with the child’s health when he was removed from her care. The child was removed based on historical concerns and because the Society did not know where she was.
The mother does not agree with the Society’s characterization of her ability to parent. She is able to look after children.
The mother has secured appropriate accommodation for the child.
The mother has the support of her partner, B.M. B.M has a child in his care and there is no Society involvement.
The mother has attended her access visits and there have been no concerns noted.
Despite the concerns the Society has with the mother’s intellectual function, a court order was granted giving her joint custody of her other three children.
The mother’s home was noted to be appropriate by the Society worker when she attended the home. It was also noted that the snakes are docile.
The mother has remained in the same home with her current partner for months.
The mother will do what she thinks she must do, not what B.M. thinks she should do.
The mother is concerned about the father and does not support the child being placed in his care. He did not have an appropriate car seat for the child, and she is concerned that he is back using drugs and alcohol. She further indicates that communicate has been difficult between them as is demonstrated by text messages that she attached to her affidavit.
There is no evidence that B.M. and his 17 year old child would not be a support to her if the child were returned to her;
The Society’s Reply
[34] The Society’s concern is the power and control relationship that has been observed between the mother and B.M., as well as B.M.’s interaction with the Society workers. Ms. Bird has observed B.M. to be controlling towards the mother. When Ms. Bird asked B.M. to complete a criminal record check in order to consider him as part of the mother’s plan he refused. His lack of cooperation with the Society is a concern.
[35] The Society acknowledges that the mother can do rote tasks but the intellectual assessment provides detailed information on the mother’s limitations. She is unable to protect herself from unsafe relationships. She is vulnerable to exploitation without consistent support from services. The mother requires daily assistance if she were to be a full-time caregiver.
[36] The mother’s previous children were returned to her with very strict terms after being in care for some time. It is the historical concerns that are the most concerning and the best evidence to support a plan for the mother as a caregiver.
[37] The Society took a less intrusive approach with the mother when it learned that she was pregnant. A plan was made with the mother following the child’s birth for the child to remain in her care. The mother did not follow the plan. She disengaged and disappeared with the child such that the Society worker had to look for her. Once she was found she did not cooperate with the Society worker. The Society obtained and executed a warrant for the child to be removed from her care.
[38] The Society argues that history is the best predictor of the future and the Society has very serious concerns based on the mother’s past behaviors that support its position that the child cannot be returned to the mother’s care.
[39] The father has not had any recent involvement with the Society regarding his other children. On August 20, 2018, the Society terminated its involvement with the father’s older children. The mother of the older children obtained custody and the father has access.
[40] Any concerns related to the father’s care of the child can be addressed through a supervision order.
The Law
[41] The law to be applied during temporary care and custody hearings is set out in subsections 94(2), (4) and (5) of the Child, Youth and Family Services Act (the CYFSA):
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 the intervention under this Part;
b) Remain in or be returned to the care or 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.
[42] The criteria to be considered is set out in subsection 94(4) and provides the following:
94(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).
[43] Subsection 94(5) sets out the following:
94(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.
[44] In CAS v. L.L. and J.G., 2019 ONSC 853, 20 R.F.L. (8th) 48, Justice Bennett sets out the s.94 analysis at paragraphs 24-32:
[24] 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 or she will suffer harm. Further, the onus is on the Society to establish that the child cannot be adequately protected by terms or 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.). simply stated, this is a two-part test that the Society has to meet.
[25] A 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.
[26] The degree of intrusiveness of the Society's intervention and the interim protection ordered by the court should be proportional to the degree of risk: CCAS of Toronto v. J.O.., 2012 ONCJ 269.
[27] Subsection 94(10) of the act permits the Court to admit and act on evidence that the Court considers credible and trustworthy in the circumstance. In determining what evidence is credible and trustworthy, the evidence in its entirety must be viewed together. Evidence that may not be credible and trustworthy when viewed in isolation might reach that threshold when examined in the context of other evidence: Family and Children’s Services v. R.O. , [2006] O.J. No. 969 (OCJ).
[28] In assessing risk, the court should consider the criminal history of parents, including evidence of violent conduct and the potential exposure of the children to violence: Children’s Aid Society of Algoma v. B.W. and R.M., 2002 CarswellOnt 5500 (OCJ).
[29] 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).
[30] The act gives priority to the person who had charge of the child prior to society intervention underpart three of the act (subsection 51 (2) of the Act). There can be more than one person in charge of the children. See: Children’s Aid Society of Toronto v. A.(S.) and R.(M.) 2008 ONCJ 348 (OCJ).
[31] The Divisional Court has held that a Society seeking an order for temporary Society care at this early stage of a case has only to demonstrate that it has reasonable grounds to believe that there is a protection risk for the child that justifies Society intervention: L.D. v. Durham Children’s Aid Society and R.L. and M.L., 2005 CanLII 63827, 21 R.F.L. (6th) 252, [2005] O.J. No. 5050 (Ont. Div. Ct.). The Burden on the Society at this stage does not go as high as showing that on the balance of probabilities there is an actual risk to the child in the parent’s care: CCAS of Toronto v. M.L.R. 2011 ONCJ 652.
[32] It is important not to judge a parent by a middle-class yardstick, one that imposes unrealistic and unfair middle-class standards of childcare upon a young mother, provided that the standard used is not contrary to the child's best interests: Children’s Aid Society of Toronto v. B.H.(R.), 2006 ONCJ 515.
[45] The Society’s position is that there are reasonable grounds to believe that there is a protection risk for the child due to the mother’s pattern of rejecting supports, her lack of cooperation with the Society, her inability to follow through with any required medical care for the child, the nature of her relationship with her current partner (BJM) and her low intellectual functioning.
[46] The Society’s position regarding the father is that any risk he poses to the child due to his past or current involvement with the Society can be mitigated with a supervision order.
The Evidence
The Mother’s Plan
[47] In the Society’s affidavit of Catherine Bird sworn June 10, 2020 at paragraph 10 the Society has summarized its history of involvement with the mother.
[48] Most notably, Ms. Bird attests that the mother was involved with Guelph CAS from September 20, 2013 until May 15, 2018. On February 2, 2017 two of the mother’s children were found in need of protection. The protection finding was based on a Statement of Agreed Facts dated February 2, 2017. There were a number of themes set out in the Statement of Agreed Facts (SAF) that include: child transiency (one child had lived in 11 different residences with the mother while the other lived in three different residences); conflict with self-identified supports; chronic household conditions (animal feces on the floor, dirt on the floors, dirty dishes, indisposed garbage, difficulties maintaining heating); child care struggles (the mother self-identified that she had difficulty establishing an age appropriate eating and sleeping routine); choice of poor partners (at paragraphs 7 and 8 of the SAF the following is written):
On May 21, 2015, the Applicant received an allegation from the OPP, which T.C. later confirmed to child protection worker Amanda Bayer. It was alleged that Mr. C was in an altercation in front of Ms. Clemente’s home. She further stated that Mr. C. had been using drugs and drinking heavily. Mr. C. denies these allegations.
Mr. C. has a criminal record including 2012 drug possession convictions, the unauthorized possession of a firearm and the careless use of a firearm, weapon, prohibited device or ammunition. He has been vague with the Applicant regarding his criminal history and current status.
[49] On March 13, 2018 a further Statement of Agreed Facts was signed by the mother and filed with the court regarding her third child.
[50] Ms. Bird attests that the mother provided the Society with a copy of an Intellectual Assessment Report from 2006, Adaptive Behavior Assessment Report from 2007 and an Assessor Summary Report completed by DSO Southwest Region in 2016. Paragraphs 11–22 of Ms. Bird’s affidavit summarizes the concerns the Society has with the mother’s ability intellectual ability and her struggles. At paragraph 21 Ms. Bird attests the following:
- Overall, the mother’s support needs are greatest in the areas of community living (2nd percentile as compared to others with this disability), home living (5th percentile as compared to others with this disability) and health and safety (5th percentile as compared to others with this disability). These areas of weakness pose a significant risk to the mother personally if she is not well-supported, and does not support her ability to parent on her own safely.
[51] The mother filed affidavit material in support of her plan. In her affidavit sworn August 6, 2020 she admits that she left the home where she had agreed to live because she was not getting along with the two people in that home. She attests at paragraph 7 of that same affidavit that, “I did not inform the Children’s Aid Society where I was living but I had intended to. When I was presented with the warrant for apprehension, I complied”.
[52] The mother attests in her affidavits filed that she does not support the child being placed in the father’s care. She attests that he has been verbally abusive towards her and that he drinks alcohol and uses drugs. For those reasons the mother is not agreeable to the child being placed with the father.
[53] The mother has attended her access visits regularly with the child and no concerns were noted in the evidence before me regarding the mother’s supervised access with the child. One concern that was raised was whether or not the child’s visits could continue at the same frequency with the mother if he was to be placed in the care of the father.
[54] Three of the mother’s non-subject children currently reside in the care of another person with whom the mother shares custody. The mother has access with those children but is not permitted to be in a sole caregiving role for them. The mother did not address the Society’s concerns regarding her other children in her affidavit material.
[55] The Society made a family plan for the mother to parent this child with supports. The mother did not follow the plan. The mother left the home and has been uncooperative with the Society. The mother’s current partner cannot be assessed to determine if he is a support as he will not cooperate with the Society.
[56] I agree with the Society that history is a good predictor of the future. The mother has had a substantial history with child protection agencies and has had three other children removed from her care previously. Although she shares joint custody of those children, if she does not reside with the person with whom she shares custody, the children are to remain with that caregiver not the mother. The mother left the home where her three non-subject children are and is not currently caring for them.
[57] Based on the mother’s history with the Society and her lack of cooperation in following the family plan constructed to keep the child in her care, I agree with the Society that there are reasonable grounds to believe that there is a real possibility that if the child is returned to the care of the mother it is more probable than not that he will suffer harm.
[58] The Society developed a safety plan with the mother to keep the child in her care following his birth. The mother did not follow the plan and moved out of the home where she was to reside with the child and her supports. No one knew where she went with the child and a warrant was obtained in order to locate and apprehend the child from the mother’s care.
[59] In Catherine Bird’s affidavit sworn August 13, 2020, she notes concerns with the mother’s partner, B.M., and at paragraph 16 she writes the following:
- The support person asked a question about the mother’s disability assessment and the mother became upset and started crying. B.M. became increasingly aggressive with his tone and body language, while denying that he was being aggressive. The support person asked him to stop being so aggressive. He stood in front of the mother and crossed his arms and raised his voice so that I could not speak directly to the mother. I tried to steer the conversation to leave things on a more positive note but it was not successful. we excused ourselves and Christian Appleton noted he would follow up with the family from there.
[60] I am not satisfied based on the evidence filed that if the child was returned to the care of the mother that he could be adequately protected by terms of a supervision order. This is an infant child and he cannot participate in a safety plan which therefore makes him more vulnerable. The mother’s current partner has chosen not to cooperate with the Society which therefore makes her plan more difficult to assess. The mother has had three of her previous children removed from her care and they are being raised by someone else. The mother’s previous assessments also indicate that she is unable to care for a child without strong supports in place. When the Society put a plan in place the mother did not follow it.
[61] For these reasons, I am not prepared to return the child to the care of the mother.
The Father’s Plan
[62] In Ms. Bird’s affidavits she sets out the Society’s history with the father. The concerns date back to 2007 and include concerns related to police involvement, criminal charges, domestic disputes, drug use, alcohol use, and neglect of the children’s needs. There are also concerns with the father’s partner, T.S.
[63] The Society has been involved with the father and his current partner dating back to 2016 and some concerns include alcohol use and the children’s lack of supervision.
[64] The mother raised concerns with the Society about the father’s current drug use and domestic violence. In its own material the Society attests, “…the father’s lack of honesty…” makes it challenging to explore whether there are concerns. At paragraph 91 of Ms. Bird’s June 10, 2020 affidavit she attests that “there are verified historical concerns regarding the father’s anger, partner violence, alcohol use, neglect, etc. as described above, in addition to concerns with T.S., history of neglect concerns regarding her own children, and also issues within her relationship with the father that would need to be explored in the context of their plan to parent the child together.”
[65] Ms. Bird swore an affidavit July 23, 2020 in support of placement of the child in the care of the father. In Ms. Bird’s affidavit she sets out meetings that she has had with both the father and his partner (T.S.) and the discussions she had with them about their plan for the child to reside in their home. Ms. Bird attests in her affidavit that the couple report having a good relationship.
[66] One concern noted is that the father missed some visits over the summer with the child. At paragraphs 31-33 of Ms. Bird’s affidavit the following is written:
On July 13, 2020 an email was sent to me by the Family Visiting Program staff while I was on vacation. I retrieved this email on July 20th, 2020. I learned that the father had missed three consecutive visits due to car trouble. The email also said that the mother asked if she could have the father's visit time if he did not attend.
On July 20th, 2020 I spoke to the child's foster parent and she told me that the father had not been consistent in attending recently and did not come to the visit earlier that day. The foster parent advised that on Friday she thought the father was “a little spacey and shaky”. She said he was “sort of standoffish and stayed on the other side of the room”. He didn't pick the child up and let him sleep in the car seat the whole time. He also wore track pants to the visit and it was 37 degrees. The foster parent said the father told her he didn't have time to change and just rolled out of bed prior to the visit time. The foster parent shared with the father that the child woke up at 6:00 AM that morning and the father gave her a look of disbelief.
On July 21, 2020 I spoke to the father about his access attendance. He told me that he finally fixed his vehicle on his own, so it should no longer be a barrier to attending access. He also told me that he started feeling unwell over the weekend and was still experiencing some flu like symptoms he planned to get tested for Covid 19 if he did not begin to feel better in the next couple of days.
[67] The Society attached a copy of the significant event report setting out the visits that had been scheduled for the father at the Society’s access center. In that report, it is noted that the father attended 2 out of 14 visits scheduled from July 8, 2020 up until August 20, 2020. The father’s explanation for missing the visits included car troubles and feeling unwell. The father did not call the Society for some of the missed visits and instead just did not attend. The father’s actions resulted in the child being at the Society without a caregiver. This is concerning. The father was not able to problem solve his circumstances and instead did not visit the child. The father did not telephone the Society to advise that he was going to miss some of the visits. He advised that he had car trouble for three of the visits and was unable to make alternate arrangements in advance to ensure that his visit occurred.
[68] The father attended two out of fourteen visits in a two-week period with the child who was then approximately three to four months old. It was noted by the worker that these absences had an impact on the child. This lack of problem solving and commitment to the child is very concerning to the court.
[69] Despite the father’s lack of follow through on visits in July and August 2020, the father submitted that an increase in access in his home was arranged for the week of August 14, 2020.
[70] No update has been filed regarding the child’s access with the father in his home from the Society. Submissions were made by Society counsel at the temporary care and custody hearing that there were no concerns noted.
[71] The father filed two affidavits in support of his position. In his material he attests that he is prepared to stay at home full-time if the child is placed in his care. Once the child is settled in the home, the father attests that he will look for employment. He is in a relationship with T.S. and she supports this decision and is willing to assist him in the care of the child.
[72] The father’s partner has two children who live with them. The father also has two children from another relationship with whom he has access on alternate weekends. If this child is placed in the care of the father there will be occasions where there are five children in the home. The father’s plan is that the child will not be impacted as he will sleep in the room with the father and his partner.
[73] The father addresses his history with the Society by admitting that he had been involved in two incidents of domestic violence – not seven as the Society suggests in its materials. The father attests that those incidents were approximately eight years ago. The father attests that he has been in his current relationship for five years and it is close and positive.
[74] The father does not provide any explanation for the history of the Society’s involvement as set out in Ms. Bird’s affidavits other than the explanation of the domestic violence incidents.
[75] The father filed an affidavit sworn August 18, 2020 wherein he attests that the expansion of access between him and the child has been going well. He had a visit on August 15, 2020 from 12 noon to 4 p.m., August 16, 2020 at 4:00 p.m. overnight to Monday, August 17, 2020 at 10:00 a.m. and another visit at his home on August 18, 2020 from 12 noon until 4:00 p.m. At paragraph 7 (a) the father attests, “…the access visit with the child in my home went very well. My partner, T.S., was also present. She also spent time with the child, but I was the child’s primary care provider.”
[76] The Society has had concerns with the father’s honesty as well as the father’s use of alcohol. In the father’s affidavit he attests the following at paragraph 10 of his affidavit sworn July 30, 2020:
- I do not use illegal drugs and I do not smoke marijuana. I do drink alcohol on occasion, but I am only drinking it moderately and not to the point of excess or intoxication. I recognize that if I did so that it would harm my relationship with T.S. and set a bad example for her children. T.S. does not normally consume alcohol and does not want any over consumption of it in our home.
[77] In Ms. Bird’s affidavit sworn June 10, 2020 at paragraph 9 the history of concerns with the father is set out. Specifically at 9 (i) the following is written:
(i) In 2017, the kin caregiver for the father’s children reported concerns that the father had been drinking while caring for the children. He said that he had but asked someone else to pick up the children as a result. He denied drug use. The father still struggled to maintain an address and employment. A new referral was received regarding the father and his partner, T.S. drinking together in a caregiving role. The father told the worker he is an alcoholic and that his body is no longer able to manage. His doctor advised him to stop drinking. The children’s school reported concerns of neglect and the file was opened to ongoing. The father’s visits were changed to be supervised by his mother at his mother’s home.
[78] In Ms. Bird’s affidavit she attests that in November 2019 concerns of neglect were still being reporting by the school.
[79] Although it appears from the evidence that the father has begun to work with the Society to address the concerns, I am not convinced based on the evidence before me that the child would be safe in the care of the father.
[80] In July and August 2020, the father did not regularly attend his access at the Society’s offices. He missed 12 out of 14 visits from July 8, 2020 to August 20, 2020. His explanation was that he had car troubles and had fallen ill. He did not call the Society to advise that he would not be attending some of his visits which resulted in the child being transported to the Society without a caregiver during those 12 missed visits.
[81] The father’s inability to problem solve and as a result his missed visits has had an impact on the child as noted in the significant event report of Ms. Innanen.
[82] This is a very young child – on October 11, 2020 he will be six months of age. The Society has had concerns with the father which date back to 2007 until present. They have had concerns with the father and this partner from 2016 until present, with a specific report from the school regarding neglect of a child in the care of the father and his partner, T.S., occurring in November 2019.
[83] Of further note is that this past summer the father missed a substantial number of his visits with the child. There were also concerns noted during the supervised visits. The father had an explanation for missing the visits and he has been cooperating with the Society since that time. He attests that his visits have been going so well that the Society has moved them to his home and have begun increasing his time to include over night visits. I would expect the father to report that the visits have been going well. I do not have any evidence from the Society to confirm if that is the case. The last affidavit the Society filed was August 13, 2020 which was before the visits to the father were expanded. Included in that affidavit was the evidence of the father’s missed visits in July and August 2020.
[84] I am not satisfied based on the evidence filed that if the child was returned to the care of the father that he could be adequately protected by terms of a supervision order. This is an infant child and he cannot participate in a safety plan which therefore makes him more vulnerable. The father as recently as July and August 2020 could not regularly attend access visits at the Society’s office. He also did not communicate with the Society worker that he had a problem, which resulted in the child being transported on multiple occasions to a visit without the father. The mother attests that the father continues to use drugs and alcohol which concerns her as that was a problem when they were involved. The father admits to continued alcohol use despite his previous admission to the Society worker that alcohol is a problem for him. The Society’s records indicate that they are unable to determine whether the father is being honest with them and much of what the Society has relied upon in its recent material is the father’s own reporting.
[85] For these reasons, I am not prepared to return the child to the care of the father.
Orders Granted
[86] This court orders the following:
The Society’s motion to place the child with the father is dismissed.
The existing order shall continue.
Matter adjourned to October 8, 2020 at 2:00 p.m. for a Settlement Conference.
J.D. Walters J
Released: October 7, 2020