WARNING

This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Family Services Act, 2017, which deals with the consequences of failure to comply, read as follows:

87(8) Prohibition re identifying child — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.

(9) Prohibition re identifying person charged — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

142(3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

COURT FILE NO.: FC-19-CP53

DATE: 2020/11/24

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

The Children’s Aid Society of Ottawa Applicant

– and –

S.D. Respondent

J.L. Co-Respondent

Counsel:

Deborah Souder for the Applicant

Kristen Robins for the Respondent

Cedric Nahum for the Co-Respondent

HEARD in Ottawa, November 16-20, 2020

REASONS FOR DECISION – NON-SUIT MOTION

O’BONSAWIN J.

Background

[1] The family consists of the mother Respondent, S.D., the father Co-Respondent, J.L. and their child B.L. (“child”), born on […], 2019. The child was apprehended pursuant to a warrant by the Society at birth. The Children’s Aid Society of Ottawa (“Society”) asks this court to find under Part V of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (“CYFSA”) that the child is in need of protection because of the following:

• there is a risk that he is likely to suffer physical harm by J.L.’s failure to care for, provide for, supervise or protect the child adequately or a pattern of neglect in care for, providing for, supervising or protecting the child;

• there is a risk that the child is likely to be sexually abused or sexually exploited by J.L.; and

• there is a risk that the child is likely to suffer emotional harm, demonstrated by serious anxiety, depression, withdrawal, self-destructive or aggressive behaviour or delayed development resulting from J.L.’s actions, failure to act or pattern of neglect.

The Society also seeks an Order that the child be placed in the extended society care of the Society.

[2] On the first day of trial, Minutes of Settlement were filed as per the parties’ request. S.D. is not presenting a plan to care for the child. She seeks an Order for access with the child. As per the Minutes, S.D. takes no position with regards to whether a finding should be made that the child is in need of protection and takes no position with respect to the ultimate disposition, except as it relates to her access with the child.

[3] J.L. does not consent to a finding that the child is in need of protection and seeks the dismissal of the Society’s Protection Application.

[4] The trial began on November 15, 2020 and the Society presented its evidence through seven witnesses: Ms. Stéphanie Bélanger, a child protection worker, Dr. Jonathan Gray, a forensic psychiatrist, Ms. Beverly Clarkson, a child protection worker, Ms. Karen Carkner, a child and youth counsellor, Mr. Jeff Bondy, the coordinator of New Directions and facilitator of Caring Dads, Ms. Karen Milner, a child and youth counsellor and Ms. Julie Wiggins, a child protection worker. The Society completed its case on November 19, 2020. J.L. did not present his evidence. Instead, on November 20, 2020, counsel for J.L. made an oral motion for a non-suit.

[5] Based on the reasons that follow, I dismiss J.L.’s motion for a non-suit.

Position of the Parties

[6] J.L. advises that this is a bifurcated process. First, the court must determine if the child is in need of protection. If the court makes such a determination, then the court must review what is in the child’s best interest as an outcome. The Society has the burden of proof. J.L. argues that the Society has failed in its evidence to establish a prima facie case. It has not established that, on a balance of probabilities, the child is in need of protection and therefore the Society’s Application must be dismissed.

[7] In addition, J.L. reminds this court that it must make its determination on the current situation of the child, and not his situation at the time of apprehension. J.L. notes that his circumstances have improved significantly since he worked with Dr. Gray and there is no evidence that he suffers from any psychiatric disorder or mental illness. He only has ADHD. J.L. submits that during his access visits with the child, the evidence supports that he puts hard feelings aside and has positive interactions with all. He remains child focused, attentive and capable of caring for the child. The Society has not expressed any concerns regarding his living arrangements, substance abuse or evidence of any kind of instability preventing him from caring for the child. Furthermore, the communication issues between J.L. and the Society workers have been resolved. He has attended all of his visits in the last six weeks, even with an increased access schedule. J.L. attended medical appointments for the child and the evidence supports that his interactions and the questions he asked were appropriate. It is J.L.’s position that the Society has prevented him from having the opportunity to parent the child on a full-time basis.

[8] For its part, the Society argues that it has presented more than enough evidence for the court to find that the child is in need of protection. The evidence supports that J.L. has had extensive prior involvement with the Society for at least three of J.L.’s children, M., A. and J. J.L. has developmental delay. From 2006-2015, J.L. was followed by Dr. Gray as per a court related order. The evidence supports that J.L. has ADHD and the greatest issue relates to his impulsivity.

[9] The Society submits that it can rely on evidence of J.L.’s past parenting. None of his children are in his care. M. has been adopted and A. and J. are in their mother’s care and J.L. does not even have an access relationship with them. With regards to this child, J.L. has not demonstrated that he has a sufficient understanding of parenting and he constantly puts his needs before that of his child. During the period of approximately sixteen months, there are significant periods of time when J.L. did not have access to the child.

[10] The Society submits that J.L. struggles to control himself and his emotions. There is a pattern when he is faced with conflict, he either overwhelms workers with messages or withdraws his consent and advises them not to speak to him and to others. He even stops attending access. When J.L. begins to re-attend access afterwards, the evidence supports that he is engaged and affectionate but that he has to relearn all of the parenting skills he developed. In addition, J.L. provides a litany of excuses when he cancels his access visits with the child. The evidence supports that he does not understand that his primary function, if the child were in his care, is to parent even when he is feeling unwell or has a bad night. It is the Society’s position that the child is not an experiment; he requires stable and consistent parenting that J.L. cannot provide.

[11] Furthermore, the Society argues that J.L. struggles to tell the truth. For example, a few weeks ago he told Mr. Bondy that his child resides with him half of the time and with his father W.L. the other half. Dr. Gray also testified that J.L. is not an accurate reporter of truth. When he was asked about the offence to which he pled guilty, he maintained that he was the victim and it was the other person that was responsible.

[12] J.L. is impulsive and has been aggressive towards Society staff. He has an extensive criminal record.

[13] In addition, the Society submits there have been several reports of domestic violence between the parents, with both S.D. and J.L. as aggressors. J.L. and S.D. cannot stay away from each other. Overall, the Society is worried that J.L.’s impulsivity and anger will pose a risk to the child’s physical and emotional safety.

Analysis

[14] In Catholic Children’s Aid Society of Metropolitan Toronto v. C.M., 1992 CanLII 7785 (Ont. C.J.), Bean J. noted that a child protection hearing is a bifurcated process. The first stage is the “adjudicative stage” where the court determines whether the child is in need of protection: at para. 15. The second stage is the “dispositional stage” where the court determines which, if any, of the orders set forth in s. 57 of the Child and Family Services Act, R.S.O. 1990, c. C-11[^1] should be made in the child’s best interests: at para. 15.

[15] Bean J. found that motions for non-suit are appropriate at the completion of the Children’s Aid Society’s case in the adjudicative stage of a protection application. With regards to the best interests of the child, Bean J. determined, at para. 16, as follows:

Until the court has found that the child “is in need of protection”, the “best interests of the child” are irrelevant, and the court has no jurisdiction to make any order except temporary orders for the care and custody of the child where a hearing is adjourned under subsection 51(2) C.F.S.A. and other interim and procedural orders as provided for in the C.F.S.A. and the rules of procedure of this court.

[16] Lastly, Bean J. noted that if the court makes a finding that the child is not in need of protection, an Order per s. 57 cannot be made and the protection application must be dismissed: at para. 16. Due to the nature of a child protection hearing, should the court dismiss a non-suit motion, the respondent is not precluded from calling evidence regarding the best interests of the child at the dispositional stage of the hearing.

[17] I turn to the burden of proof. The Society has the burden of proving, on a balance of probabilities, that the child is in need of protection. Part V of the CYFSA governs child protection proceedings. More specifically, s. 74(2) provides a long list of instances where a child is in need of protection. In this matter, it is alleged there is a risk the child is in need of protection because

• there is a risk that he is likely to suffer physical harm by J.L.’s failure to care for, provide for, supervise or protect the child adequately (CYFSA, s. 74(2)(b)(i)) or a pattern of neglect in care for, providing for, supervising or protecting the child (CYFSA, s. 74(2)(b)(ii));

• there is a risk that the child is likely to be sexually abused or sexually exploited by J.L. (CYFSA, s. 74(2)(d)); and

• there is a risk that the child is likely to suffer emotional harm, demonstrated by serious anxiety, depression, withdrawal, self-destructive or aggressive behaviour or delayed development resulting from J.L.’s actions, failure to act or pattern of neglect (CYFSA, s. 74(2)(h)).

[18] When the court evaluates the standard of parenting, it must be cognizant that it is not one of perfection and care must be taken to not impose middle class values: Children’s Aid Society of Hamilton v. M.C., 2009 CanLII 35731 (Ont. S.C.), at para. 82. When looking at the risk of harm, the court must determine that the risk of harm is real and not speculative: N.V.C. v. Catholic Children’s Aid Society of Toronto, 2017 ONSC 796, at para. 77.

[19] J.L. argues that the Society bears the onus of proving the risk exists at the time of the hearing, not at the time of the apprehension. He relies on two cases to support this position: N.V.C. v. Catholic Children’s Aid Society of Toronto, 2017 ONSC 796 and Halton Children’s Aid Society v. J.T., 2017 ONCJ 267. The court in N.V.C. found that the finding of risk of harm, and therefore of the child’s need for protection, must be determined at the time of the hearing, not the date of the apprehension. This reasoning was followed in Halton. I disagree. I prefer to follow the approach taken in Children’s Aid Society of Toronto v. S.A., 2017 ONCJ 366, which followed Children’s Aid Society of Hamilton-Wentworth v. K.R., [2001] O.J. No. 5754. The issue before Pawagi J. was the protection finding and whether the relevant time was as of the date of the apprehension or as of the date of the protection hearing. In part, Pawagi J. relied on Czutrin J.’s decision in Children’s Aid Society of Hamilton-Wentworth v. K.R., [2001] O.J. No. 5754, at para. 50, where he stated:

I have come to the conclusion that the court should be free to consider whether the child is in need of protection at the commencement of the proceedings or at the hearing date, or for that matter some other date, depending on the circumstances. There cannot be an absolute rule as to the relevant date. This is consistent with the Act and certainly consistent with the Supreme Court of Canada decision.

[20] Pawagi J. found that a protection finding can be made based on the circumstances as of the date of apprehension. She noted that Ontario’s legislation did not restrict the timing of finding in any way. More specifically, Pawagi J. concluded as follows:

24. A restrictive approach focusing only on the circumstances as of the date of the protection hearing based on the present tense wording of the finding provision in the CFSA (whether the child “is” at risk), is inconsistent with the purpose of the Act as a whole, the provisions of which cannot be considered in isolation but rather as part of a legislative framework to promote the best interests, protection and well being of the child.

25. To hold otherwise would make subsection 57(9) of the Ontario Act superfluous. If the only time that the court could consider for a protection finding was the time of the hearing there would never be a need to utilize subsection 57(9) which is for circumstances where the concerns relating to the finding no longer exist and thus no disposition order is required.

(9) Where no court order necessary. — Where the court finds that a child is in need of protection but is not satisfied that a court order is necessary to protect the child in the future, the court shall order that the child remain with or be returned to the person who had charge of the child immediately before intervention under this Part.

[21] The same approach was taken by O’Connell J. in Children’s Aid Society of Toronto v. S.M.T., 2018 ONCJ 540 and by Paulseth J. in Children’s Aid Society of Toronto v. R.M., 2018 ONCJ 690.

[22] I turn to the Society’s evidence. I summarize the evidence of the Society’s witnesses as follows:

• This is not the first time that the Society has been involved with J.L.’s children. Previously, J.L’s child M. was made a Crown ward and J.L.’s children A. and J. live with their mother and J.L. does not have access to them.

• Dr. Gray is a forensic psychiatrist at the Royal Ottawa Health Care Group (“Royal”). As a condition of his release related to a sexual offence, J.L. was ordered to attend the Sexual Behaviours Clinic at the Royal. Dr. Gray was assigned as J.L.’s psychiatrist and worked with him from 2006-2015. Dr. Gray is of the view that J.L. lacked insight into his role in the sexual offence. J.L.’s self-report was not reliable: the facts were not as he presented them. For the most part, J.L. did not listen to Dr. Gray’s advice. J.L. admitted to being impulsive and making poor decisions. At that time, J.L. was on Ritalin to treat his ADHD. When asked to scale J.L. on a scale of 1-10 with 0 meaning J.L. was at the same place as in 2006 and 10 meaning that at the end of 2013 he was less impulsive, Dr. Gray assessed him as a 3/10.

• On March 22, 2018, J.L. was ordered by the court to attend the New Directions Program (The Partner Assault Response Program - anger management). Mr. Bondy completed a Discharge Report dated April 1, 2019. He noted that J.L.

indicated his ex-partner lied to the police, claiming that he broke into her home and was standing over her while she lay in her bed. Despite the numerous allegations of unwanted contact and threats from [J.L.], he denied that he ever contacted his partner when asked not or that he threatened her in any way. In completing the Abusive and Controlling Behaviour Inventory, he admitted to some forms of abuse in relationships, including: insulting, swearing, name calling, slamming doors when angry, ignoring a partner, accusing a partner of cheating, yelling, threatening to call child protective services on partner, threatening to take the children away from a partner, having an affair, throwing, kicking or breaking things when angry, punching a wall/table/door and stopping a partner from leaving the home, car, etc. [J.L.] explained that he gets “mad fast” and that he hopes the program would help him manage his anger and be a “better boyfriend” ... [J.L.] acknowledged that his actions were wrong, but seemed to have limited insight into the effects of his behaviour … He also disclosed that his current partner was at times violent with him and that he has not been violent in response.

• In June 2019, J.L. was charged with assaulting S.D. Ms. Bélanger testified that J.L. had over fifty contacts with police within the last five years.

• The child was born on […], 2019 and he was apprehended at birth with a warrant by the Society.

• Ms. Bélanger first met with J.L. on July 24, 2019. She recommended a series of programs such as Caring Dads Program, Family Services Ottawa, the ADR Program and the Circle of Care at Wabano. J.L. disclosed that he has indigenous heritage and that his uncle is Cree. He was not able to provide further information about his heritage. J.L. also began having weekly one-hour access visits with the child.

• In August 2019, J.L.’s access visits with the child were increased to two times per week for one hour. In August, Ms. Bélanger saw J.L.s Facebook posts showing photos of his and S.D.’s individual access visits with the child. At that time, there was a no communication order in place between the two, due to the outstanding charges against J.L. When questioned by Ms. Bélanger, J.L. stated that S.D. stole his Facebook password and that she posted the photos. Ms. Bélanger did not accept this explanation. Later that evening, J.L. posted that it was funny that the Society was asking him about his posts and that it “could not prove shit, stop looking at my Facebook you pieces of shit”. Ms. Bélanger attempted to meet with J.L. to discuss a service plan. After having received no response, she was finally able to meet with him briefly on August 26, just prior to his access visit at the Society site. During a telephone call between Ms. Bélanger and J.L., he advised her that he was connected to Odawa through the Bail Bond Program but that he did not have any involvement with Wabano. He also indicated that his father and stepmother were supports. He also was supported by Mr. Griffin, an OCAP worker. In addition, in August, Ms. Milne saw J.L. and S.D. together at a cheese festival. J.L. did not attend all of his scheduled access visits.

• On September 11, 2019, Ms. Bélanger met with J.L. and they discussed the service plan with goals. She recommended that he register for the Caring Dads Program.[^2] J.L. indicated that he had an appointment with them at the end of September.[^3] He also advised Ms. Bélanger that he had completed the New Directions Program regarding anger management in March 2019. J.L. also complained that the child had bruises and marks. When Ms. Bélanger was advised of J.L.’s complaint, she immediately telephoned J.L. and asked him for further details. She arranged to meet the child to see if he had any injuries. Ms. Bélanger observed that the child had baby acne and had scratches on his face caused by his own nails. There were no bruises. On September 27, Ms. Bélanger saw S.D. leaving J.L.’s apartment building. J.L.’s access visits were increased to two times per week for three hours.

• In October 2019, J.L. attended less of his scheduled access visits with the child: he only attended two to three times. J.L. and Ms. Bélanger attended the child’s medical appointment with Dr. Bana at Wabano. J.L. cancelled two meetings with Ms. Bélanger. They were to review the service plan, discuss the Society’s protection concerns and how they could be addressed. At the end of October, Ms. Bélanger was finally able to meet J.L. She advised him that he had not made much progress and encouraged him to meet with her on a monthly basis. They discussed that he had not attended the programming they had discussed, and she encouraged him to attend his access visits with the child.

• In November 2019, J.L. missed four access visits in a row. Ms. Bélanger asked J.L. to provide a physician note to support his absences to his access visits with the child. He did not do so. Ms. Bélanger sent Mr. Griffin an email to discuss J.L.’s thumb injury. Mr. Griffin advised her that J.L. had instructed him not to provide her with any information. At a meeting in mid-November, Ms. Bélanger advised J.L. that the Society could not increase his access visits with the child because of his missed visits. J.L. was upset and withdrew all consents. The Society tried to establish a new call-in procedure for J.L.’s access visits to the child. He refused. When J.L. did not attend two of his access visits and Ms. Bélanger did not hear from him, she asked the police to perform a wellness check on him. J.L. was very upset and told her he no longer wanted to work with her and called her a “dumb bitch”, withdrew his consents and did not want her to speak to any of his supports. On November 19, J.L. did not attend his intake meeting for the Circle of Care. At the end of November, Ms. Bélanger met with J.L. and he advised that his father and step mother were planning to move to Carleton Place and that his father was very busy with work.

• Ms. Bélanger organized a meeting for December 4, 2019 with J.L., his OCAP worker and anyone he felt was a support for him. He responded that he agreed and then later cancelled the meeting. The Society instituted a one-hour pre-check-in for J.L.’s access visits. J.L. texted Ms. Bélanger and advised that he wanted her to prepare documents because he wanted to sign over the child to the Society. After she received the text message, Ms. Bélanger attempted to get hold of him via text. On December 20, they finally met and discussed the issue. J.L. told her that she misunderstood his text and he wanted to move things along with the court process. They also discussed J.L.’s lack of progress and she encouraged him to connect with the appropriate services in order to assist him with his parenting skills and develop a skill set to meet his child’s needs. They reviewed the service plan and established goals for J.L. On December 23, Ms. Clarkson attended the child’s appointment with Dr. Garrity, a geneticist at CHEO. J.L. was invited but did not attend.

• In January 2020, J.L.’s access visits were once per week. He missed his second intake appointment for the Circle of Care. He withdrew his consent.

• In February 2020, the court made an Order providing J.L. with access visits two times per week. On February 5, the child had his six-month wellness baby check up and flu shot at Wabano. J.L. attended with Ms. Clarkson. Ms. Wiggins was assigned to the child’s file. J.L. began attending the Caring Dads Program. He also started attending the parenting program with Ms. Carkner and she noted J.L.’s comment to her that “some of the things [the child] does are so cute I can’t get mad at him” and she testified that she did not understand why J.L. would get mad at a child of that age.

• On March 5, 2020, the child had an appointment at Wabano and J.L. did not attend. On March 9, Ms. Wiggins and Ms. Clarkson attended J.L’s home. J.L. shared with them his concerns with respect to Ms. Bélanger raising his status as a sex offender, indicating that she continued to raise it even though he is not on the sex offender registry. Ms. Wiggins talked to J.L. about the core plan of care and the expectations. Ms. Wiggins asked him to take the New Directions Program again. He refused because he had already taken it and he was concerned that it would trigger him. J.L. was not able to identify family supports. Since J.L. had missed two access visits in a row, the visits reverted back to the Society’s discretion. Ms. Wiggins advised him that in order for access visits to move into his home, he had to have consistent access visits with the child. During the March 17 access visit, Ms. Carkner noted that, at one point, the child was excited, animated and banging in the high chair. J.L. responded by asking him “why are you so angry?” Ms. Carkner testified that she was surprised by his comment and explained to J.L. that the child was not showing anger but that he was just excited, and that this was typical for a child of his age. Ms. Carkner also noted that J.L. struggled to change the child’s diaper. COVID-19 occurred. Ms. Carkner contacted all of the participants to advise them that the program was postponed due to COVID-19.

• On April 7, 2020, Ms. Wiggins sent J.L. an invite to attend a virtual meeting with Ms. Milne to discuss virtual access and touch based regarding expectations and areas where J.L. would require support. J.L. did not attend. On April 14, J.L. raised concerns with Ms. Wiggins about Ms. Milne’s attendance. Ms. Wiggins advised him that it was important because Mr. Milne would set up his virtual access visits. Ms. Wiggins also talked to him about Family Finding. He shared with her that there had been a meeting with him, his father and Ms. Bélanger. He thought that his father had a plan for the child but due to his new business, he could not present one. On April 15, Ms. Wiggins had a meeting with J.L. They discussed access and his concerns about having Ms. Milne present. He told Ms. Wiggins that he can be manipulative and that if he did not get what he wanted with one worker, he called another. Ms. Wiggins offered J.L. the Circle of Care program in order for him to engage with his Indigenous background and he declined. Ms. Milne was present for part of the meeting and she explained the virtual access visits to him. On April 22, Ms. Wiggins had a conversation with J.L. to discuss the Society’s protection concerns and she advised him that there were concerns about his relationship with S.D. They discussed the New Directions Program. Face to face access visits were not taking place in April. This upset J.L. At the end of April, Ms. Wiggins offered to meet with J.L. weekly to touch base to see how he was reaching his goals. She then sent him the simplified plan.

• In May 2020, J.L. missed a few virtual access visits. On May 14, Ms. Wiggins discussed the simplified plan with J.L. He declined the Circle of Care again. She also talked to him about getting an updated psychiatric assessment. J.L. advised that he was no longer a client at the Royal. At this time, there was no one that was able to put forward a plan for the child and J.L. advised Ms. Wiggins that he did not trust anyone in his family.

• On June 3, 2020, Ms. Wiggins telephoned J.L and he asked her about face to face visits because he had heard there were visits occurring. She responded that was not her understanding and that the Society was consulting with Ottawa Public Health in order to figure out how to resume face to face access visits safely. He agreed that he would wear a mask, bring a change of clothing and use sanitizer since he was anxious to see his child. Ms. Wiggins asked him again about obtaining a new psychiatric assessment. She offered to write a letter that she later provided. They discussed further programing. On either June 8 or 9, Ms. Wiggins sent J.L. a text message to see how his surgery went. He asked her about home visits. She advised him that she was not sure when they would resume. J.L. was upset and advised Ms. Wiggins that she did not have permission to speak with anyone. He also told her to stop getting in touch with him, that she should erase his telephone number and email address. J.L. cancelled his access visit with the child. At that time, the Society had to call and speak to the visiting parent and foster family in order to do the COVID-19 screening questions, and again the next day before the visit, prior to the access visit taking place. Once their responses were received and no issues were noted, the access visit could take place. During the access visit, the protocol called for all to wear a mask. J.L.’s first in person access visit took place during the week of June 15. J.L., Ms. Wiggins and the foster mother brought the child for a walk outside in his stroller. A second outside visit also took place. On June 20, Ms. Wiggins had a conversation with J.L. He asked her if the foster family was interested in adopting the child and she responded that he was not available for adoption, but she could ask Ms. Clarkson. They discussed openness and photos. Ms. Wiggins discussed it with counsel because she was not familiar with adoption. Discussions took place between the Society’s counsel and J.L.’s counsel. Afterwards, J.L. texted Ms. Wiggins and told her she put words in his mouth, called her a “liar” and indicated that he revoked his consent and he no longer wanted to speak to her. Ms. Wiggins attempted to set up a meeting to discuss the miscommunication and J.L.’s counsel declined the meeting.

• The first week of July 2020, Ms. Wiggins tried to organize J.L.’s access visit at a splash pad to celebrate the child’s birthday. Unfortunately, Ms. Wiggins answered “yes” to one of the screening questions the morning of the splash pad visit and she had to cancel the visit. J.L. was upset and believed that the foster parents answered “yes” to a screening question because they were hungover because of July 1^st festivities. The next day, Ms. Wiggins was able to answer “no” to all screening questions and J.L.’s access visit with the child took place at the splash pad. J.L was unable to change the child into his swimwear and the foster mother did so. J.L. expressed concerns that the child was heavy when he carried him. J.L. advised that he was nervous about changing the child. Afterwards, with the assistance of the foster mother, J.L. was able to change the child’s diaper and dress him. Otherwise, the visit went well. On July 8, J.L. expressed to Ms. Wiggins that he had concerns about seeing the foster mother kiss the child on the lips and tell him she loved him. This occurred at the child’s medical appointment. Ms. Wiggins responded that the foster mother was wearing a mask and it was not uncommon for foster parents to tell a child they love the child. He understood. Ms. Wiggins scheduled an in-person meeting with J.L. and Ms. Milne for July 13 to discuss the plan but it had to be cancelled because J.L. responded “yes” to a pre-screening question. Consequently, Ms. Wiggins advised J.L. that they could not meet, and he was upset. He again revoked his consent. The Society could not communicate with anyone, including his counsel. On July 16, J.L. telephoned Ms. Wiggins to advise that the domestic charges with S.D. were going to be dropped. She responded to him that it was still the Society’s expectation that J.L. complete the Caring Dads Program. He also refused to tell her why he had to answer “yes” to a pre-screening question. He just said that he had a doctor’s note but Ms. Wiggins did not receive a copy of the note. There was an increase to J.L.’s access visits to two times per week for one and a half hours. J.L. missed a few visits. Towards the end of July, Ms. Wiggins suggested the use of a group email in order to assist with communication issues with J.L. but his counsel did not agree.

• In early August 2020, the Society suggested a group text to assist in the communication with J.L. It worked for a while. J.L. expressed that he wanted a new worker assigned to his file. J.L. did not attend any access visits with the child in August.

• On September 14, 2020, the child had an appointment with Dr. Keyes. J.L. was supposed to call in and he did not. A meeting between Ms. Wiggins, Ms. Milne and J.L. was set up for September 15 and he did not attend. J.L. advised that his mother would attend trial and present a plan.[^4] His mother did not contact the Society to indicate that she wanted to put forward a plan for the child. With regards to J.L.’s request for a new worker, Ms. Wiggins discussed it with her supervisor and with counsel and it was agreed that a new worker would be assigned to J.L. Ms. Wiggins organized a transfer meeting in order to introduce J.L. to his new worker, which was scheduled for September 17. On September 15, J.L. confirmed that he would attend the meeting. Ms. Wiggins sent him a reminder of the meeting on September 16. J.L. did not attend the meeting. On September 22, Ms. Wiggins asked him why he did not attend his access visit and he responded that he and his counsel would rather take the matter to court. Ms. Wiggins asked him about his mother’s plan, and he responded that she would bring it to court. He was also concerned that he only had access visits for one and a half hours and wanted to bring toys for the child. Ms. Wiggins responded that he had to attend the access visits for there to be an increase in time. She recommended that he could attend the Crossroads program in October. She discussed with Crossroads and was advised that he was registered for the program. Given that J.L. did not attend the transfer meeting, it was decided that Ms. Wiggins would remain as his worker since the trial was scheduled for November.

• On October 13, 2020, the Society received the court Order regarding J.L.’s access. He could have access visits for one hour and a half. On October 16, J.L. called Ms. Wiggins to discuss his access. He advised Ms. Wiggins that he could not attend his access visit since he was in court for his matter with the Society. Ms. Wiggins was confused because the matter with the Society took place earlier. In October, Ms. Clarkson saw J.L. and S.D. together at the mall. In October, the child had surgery to descend one of his testicles.

• On November 2, 2020, Ms. Wiggins spoke to Mr. Bondy. She advised him that she did not have J.L.’s consent to speak to him. Mr. Bondy advised her that J.L. told him that he had the child in his care half of the time and that his father had the child in his care for the other half. On that same date, Ms. Wiggins spoke to J.L. about how his courses were going and he responded that he was advised not to discuss that with her. On November 4, Ms. Wiggins and Ms. Milne visited J.L.’s home. All was appropriate. J.L.’s first home visit with the child took place on November 6. J.L.’s access visits were three times per week for three hours. During the week of November 9, two visits took place at the Society’s location and one visit at J.L’s home. During the first week of the trial, J.L. was late for the second visit in his home.

• During the course of J.L.’s access visits with the child, when he provided reasons for cancelling a visit, he provided a series of different reasons: he was sick, he had an upset stomach, he had a headache, he was having chemotherapy, he was hit by a car, he had IT issues, he was up late and throughout the night, there was an incident in his apartment building, he had to stay home for a detector inspection and he was in court.[^5]

• At times, J.L. called the police when S.D. attended his apartment.

• When J.L. does not get his way with the Society workers, he either calls or texts them numerous times.

[23] I begin by finding that there is no evidence to support that the child is at risk and is likely to be sexually abused or sexually exploited by J.L.

[24] I do find, however, that the child is in need of protection because there is a risk that he is likely to suffer physical harm by J.L.’s failure to care for, provide for, supervise or protect the child adequately or a pattern of neglect in care for, providing for, supervising or protecting the child. I find that there is a risk that the child is likely to suffer emotional harm resulting from J.L.’s actions.

[25] It is clear from the evidence that J.L. and S.D. cannot stay away from each other. They have been seen together by different Society workers since the child’s birth and as recently as October 2020. There is evidence that they have volatile relationship. In addition, J.L. has self-reported a history of some forms of abuse in his relationships. He also self-reported that he has triggers. There is no evidence to support that his behaviour has improved.

[26] I agree with the Society that J.L. struggles to control himself and his emotions. J.L. has impulsivity issues that existed from 2006-2015 when he was Dr. Gray’s patient and these issues remain today. The evidence supports that when he does not get his way with the Society, he either calls or texts the workers incessantly, at times, acts aggressively towards the workers, he does not attend his access visits with the child, he withdraws his consent as he has done on numerous occasions and stonewalls the Society’s attempts to communicate with him and others.

[27] There is evidence regarding J.L.’s past parenting capabilities. It is noteworthy that his children are not in his care. M. has been adopted and A. and J. are in their mother’s care and J.L. does not have an access relationship with them.

[28] A review of the evidence indicates that during the period of approximately sixteen months, there are periods of time when J.L. did not have access to the child. These missed access visits with the child were largely caused by J.L.’s actions. In addition, J.L. has issues with lying. This issue dates back to when he was Dr. Gray’s patient. Dr. Gray testified that he questioned J.L.’s self-report. The evidence regarding his Facebook account is also difficult to believe. What is most concerning is that J.L. lied very recently to Mr. Bondy about having the child in his care half of the time. Furthermore, I question some of the excuses that he provided for missing his access visits.

[29] I also question J.L.’s parenting skills. J.L. has a history of having some access visits but then cutting them off. Overall, he is not consistent with his access visits. When he begins to re-attend access after he stops them, the evidence supports that he is engaged and affectionate but that he has to relearn all of the parenting skills he developed. The fact that he has been attending more access visits in the past month prior to trial is insufficient to demonstrate that he has had consistent access visits with his child. A child requires stable and consistent parenting and the evidence supports that J.L. cannot provide such parenting.

[30] It is real and likely that J.L.’s behaviour and/or the conflict in his life will cause a risk to the child and that he will likely suffer physical harm or a pattern of neglect and emotional harm if he were to be placed in his care.

Conclusion

[31] For the reasons noted above, I dismiss J.L.’s motion for a non-suit. I have concluded in the adjudicative stage that the child is in need of protection. The dispositional stage may now proceed where the court will determine which, if any, of the orders listed in s. 101 of the CYFSA should be made in the child’s best interests.

Justice M. O’Bonsawin

Released: November 24, 2020

COURT FILE NO.: FC-19-CP53

DATE: 2020/11/24

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

The Children’s Aid Society of Ottawa Applicant

– and –

S.D. and J.L. Respondents

REASONS FOR DECISION – NON-SUIT MOTION

O’Bonsawin J.

Released: November 24, 2020

[^1]: Currently s. 101 of the CYFSA. [^2]: A program to assist participants to break the cycle of violence, discuss how abuse is passed down and the effect of abusive behaviour on partners and children. [^3]: J.L. did not attend the intake appointment for the Caring Dads Program. [^4]: J.L. did not have contact with his mother since he was twelve years old. He only recently started having contact with her. [^5]: This is not an exhaustive list.