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-20-CP-5
DATE: 2021/04/09
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017, S.O. 2017, c. 14, Sched. 1
AND IN THE MATTER OF: M.G. (DOB: […], 2020)
BETWEEN:
The Children’s Aid Society of Ottawa
Applicant
– and –
S.G. (“father”) &
K.D. (“mother”)
Respondents
Brian Fisher, for the Applicant
Dominque Smith, for the Respondent
HEARD: February 10, 11, 2021
REASONS FOR DECISION
Somji j.
[1] The child, M.G. (born […], 2020) (“child”), has been in the care of the Society since she was born a little over 14 months ago. The respondent mother, K.D. (“mother”), and father, S.G. (“father”), have brought a motion that the child be returned and placed in their care under a temporary supervision order with terms and conditions.
[2] The Children’s Aid Society (“Society”) opposes the motion and seeks a three month temporary with prejudice order placing the child in the temporary care and custody of the Society, with access to the parents at the discretion of the Society, pending the final disposition of this matter.
[3] The Society takes the position that the child is at risk of harm stemming from the parents’ history of alcohol addiction, domestic violence, and limited parenting abilities. The Society takes the position that the parents have not taken any steps to address these child protection concerns and that a supervision order with conditions would not suffice to protect the child from harm.
[4] The parents view the matter differently. They disagree with the child protection concerns identified by the Society and argue that the concerns identified by the Society could be addressed by way of a supervision order with terms and conditions that they are willing and able to abide by. They argue that they should be given, at minimum, an opportunity to demonstrate that the child is not at risk if placed in their care and that they are able to care for the child.
[5] The primary issues in this motion are whether the child would be at risk of harm if returned and placed in the care of the parents, and if so, whether that risk could be addressed by way of a temporary supervision order.
[6] In reviewing the facts of this case, I am acutely aware of the emotional impact both parents, but especially the mother who carried this child for nine months, would have experienced and likely continue to experience when their baby was taken away by the Society from the hospital almost immediately after she was born. However, the paramount purpose of the Child, Youth and Family Services Act, 2017, SO 2017, c 14, Sched 1 (“CYFSA”), as outlined at s. 1(1), is to promote the best interests, protection and well-being of children. The focus of the case and the decision must, as always, be on protecting and ensuring the bests interests of the child.
[7] Upon reviewing the evidence filed and considering the submissions of counsel, I find that the child would be at risk of harm if placed with the parents and that the risk cannot be managed by way of a supervision order. The child will remain under the care of the Society with access to the parents at the discretion of the Society. My reasons are set out below.
Evidence in these proceedings
[8] The Society relies on the following affidavits and supporting exhibits in this application:
➢ Affidavit of E. Rioux sworn January 14, 2020
➢ Affidavit of C. Rogers sworn on March 10, 2020
➢ Affidavit of K. Pulfer dated August 19, 2020
➢ Affidavit of C. Rogers dated November 2, 2020
➢ Affidavit of J. Campbell dated November 9, 2020
➢ Affidavit of M. Jacques dated November 9, 2020
➢ Affidavit of K. Pulfer sworn November 9, 2020
➢ Affidavit of K. Pulfer dated December 22, 2020
➢ Affidavit of J. Campbell dated December 23, 2020
➢ Affidavit of M. Jacques dated December 23, 2020
➢ Affidavit of K. Pulfer sworn on February 1, 2021
➢ Affidavit of J. Campbell dated February 1, 2021
➢ Affidavit of M. Jacques dated February 1, 2021
[9] In support of their position, the parents rely on the following affidavits:
➢ Affidavits of the father dated December 30, 2020 and February 5, 2021
➢ Affidavits of the mother dated December 30, 2020 and February 5, 2021
[10] I have also reviewed the following court judgments that address the parents’ child protection concerns vis-à-vis their previous child K.G:
➢ Judgment of the Honourable Justice Marie Pratte dated April 24, 2017
➢ Judgment of the Honourable Justice Sylvain Meunier dated March 20, 2018
➢ Final order of the Honourable Justice Pierre E. Roger dated September 2, 2020
Background facts and legal proceedings
[11] Both parents are originally from western Canada. They moved from British Columbia to Gatineau, Quebec shortly before the birth of their first child, K.G., in 2016.
[12] The mother reports growing up in B.C. She is presently 32 years old. Her only children are K.G., who is now adopted, and M.G., who is the subject of this ruling.
[13] The father is 53 years of age. He indicates he is originally from Alberta and has an ex-partner and child in Alberta. Little is known about them. In addition, the father has two other children from previous relationships: S.G., who is presently 21 years of age, and J.G., who is presently 25 years of age. The father reports that he has had positive relationships with his older children but has not had any recent contact with them.
[14] The parties do not identify as First Nations, Inuit or Metis.
[15] The parents’ previous child, K.G., is presently 4.5 years of age. In November 2016, he was taken from the parents’ care by the Director of Youth Protection (“DYP”) in Gatineau, Quebec. DYP is the child welfare authority in Quebec.
[16] DYP became involved with the parents on November 16, 2016 when the police observed the father walking down the street at 11 p.m. while heavily intoxicated, with an 11-week-old K.G. It was 2 degrees Celsius at the time. The police observed that K.G. was partially naked under the father’s coat. The police observed the father stumble several times “almost dumping the infant into the street”. He had a bottle of alcohol in his pocket. The mother was located at a friend’s house that night and found to be heavily intoxicated. The parents stated that they had an argument, during which time the father grabbed the mother by her shoulders and pushed her to the floor. The father then left with the partially naked child.
[17] K.G. was then taken to a place of safety and subsequently placed in a foster home so that DYP could assess the parents’ capacity to care for the child, the home environment, and the concerns about alcohol use. The parents were permitted to access K.G. during this time.
[18] Ultimately, the parents were not able to address the child protection concerns identified by DYP. In March 2018, the Honourable Justice Sylvain Meunier of the Court of Quebec ordered that K.G. be placed in what is the equivalent to Ontario's Extended Society Care for the purposes of adoption. While K.G. was in foster care, the parents had access to him. However, on March 6, 2020, the Court of Quebec made a final order terminating access between the parents and K.G. The parents had legal representation for the Quebec court proceedings.
[19] The mother became pregnant with M.G. in 2019. The parents moved from Gatineau, Quebec to Ottawa, Ontario sometime in the fall of 2019.
[20] On December 20, 2019, about 20 days before the birth of M.G., the Society received a call from a child protection worker in Quebec, Andreane Dugas, reporting their concerns about the mother who was pregnant and scheduled to give birth in Ontario.
[21] This was followed by another call to the Society on […], 2020, from a triage nurse at the Ottawa Civic Hospital (“Civic”) in Ottawa, also expressing concerns about the family. The nurse indicated that the mother was due on December 26, 2019 and should have been induced. The nurse was concerned the mother was not being followed by medical personnel. The parents reported they had an obstetrician-gynecologist Dr. Helene Gagne. The parents claim they stopped seeing her because she had called child welfare authorities on them.
[22] The nurse reported that she was having trouble getting a clear history from the family. The father would not allow the mother to speak. The father stated they had another child who was anxious to be an older brother. The father stated they came to the Civic because they were being followed by the high-risk unit, which the nurse knew to be untrue. The father was unable to provide the name of their physician, stating the papers were at home. When asked about contacts, he stated they were on his phone, which he had lost, and that he did not have any contacts.
[23] The nurse contacted Dr. Gagne who confirmed the mother had not completed any testing and stopped seeing her in October 2019. Dr. Gagne reported to the nurse that the mother may have a delay. The nurse was also left with this impression from her dealings with the mother. This issue is addressed further below.
[24] The parents were assessed by two Society Workers. When asked if they had any family or trusted friends in the area that could support them, they replied they did not.
[25] M.G. was born on […], 2020. The following day, the Society obtained a warrant to take the baby to a place of safety. The parents were advised that the child was being placed in Society care until an assessment could be completed. In their initial assessment, the parents could not identify any family or trusted friends who could support them. Later, the father did name one person who could move in with them to help with childcare responsibilities, but the Society was unable to assess the person. Arrangements were made to permit the mother continued access so that she could breastfeed the child.
[26] On January 15, 2020, this Court made, on consent, a temporary without prejudice order placing the child in the care of the Society with access to the parents at the discretion of the Society. The parents were not supportive, but it took some time before they were able to get legal assistance to respond to the child’s apprehension. The matter was adjourned on January 30, February 24, and March 12, 2020, to permit the parents to obtain Legal Aid, retain counsel, and file their responses. In the spring of 2020, the COVID-19 pandemic was upon us, resulting in court closures and a further adjournment of the matter to July 2020.
[27] The parents were initially self-represented with some assistance by duty counsel. They filed a handwritten Answer and Plan of Care on March 2, 2020. By the summer of 2020, they had retained counsel and scheduled the matter for a temporary care and custody hearing (“custody hearing”) on September 2, 2020, pursuant to s. 94(2) of the CYFSA, pending final disposition of the case. The September hearing date was subsequently converted, on consent of the parties, to a hearing for production of third-party records, including records from DYP. The custody hearing was further adjourned to November 18, 2020.
[28] Much to the surprise of all the parties, the DYP did not comply with the third-party records request relating to the previous child K.G. The parents did not want to proceed with the custody hearing in the absence of a full evidentiary record. As a result, the hearing for a temporary custody order was further adjourned to January 6, 2021, and again to February 11, 2021.
Issues
[29] The issues in this case are as follows:
1. Are there reasonable grounds to believe that there is a risk the child is likely to suffer harm if placed with either parent?
2. If so, could the child be adequately protected by imposing a supervision order on the parents with terms and conditions?
Legal framework for assessing a temporary custody order
[30] The parents seek a temporary supervision order for care and custody pursuant to s. 94(2) of the CYFSA, pending final disposition of the matter.
[31] The purpose of a temporary care and custody hearing is to determine where a child should stay until the merits of a child protection case can be determined: Children’s Aid Society of Hamilton v. BD and FTM, 2012 ONSC 2448 at para 28.
[32] Section 94(2) of the CYFSA provides the court several options when making a temporary custody order. It can:
a) return the child to the person who had the child before the Society’s intervention, which in this case would be the parents;
b) return the child to the person who had the child before the Society’s intervention but under the Society’s supervision and with conditions;
c) place the child in the care of another person, upon their consent, and under supervision of the Society; or
d) keep the child where they are presently, which in this case is foster care.
[33] In this case, the child was with the parents at the hospital for a limited period of 24 hours before the Society’s apprehension. The child is presently under care of the Society and residing with a foster family. The Society requests the child remain in that placement.
[34] Section 94(4) of the CYFSA states that the court will not make an Order under s. 94(2)(c) or (d) unless it has reasonable grounds to believe that the child is likely to suffer harm if placed with either of the parents and, furthermore, that the child cannot be adequately protected by the terms and conditions of a temporary supervision order on the parents.
[35] Hence, the onus is on the Society to satisfy the court that there are reasonable grounds to believe that there is a risk that the child is likely to suffer harm if placed with the parents and that the child cannot be adequately protected by returning the child to parental care with or without an interim supervision order: Children’s Aid Society of Ottawa-Carleton v. T, 2000 CanLII 21157 (Ont SCJ), per Blishen J. at para 10.
[36] A court must choose the order that is the least disruptive placement consistent with the adequate protection of the child: subsection 1(2)(2) CYFSA; Children's Aid Society of Hamilton v. B.D. and F.T.M., 2012 ONSC 2448 at para 29.
[37] 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.1, 2012 ONCJ 269 at para 16.
[38] The burden of proof with respect to both these elements is on the Society. The Society must establish on credible and trustworthy evidence that there are reasonable grounds to believe that there is a real possibility that, if the child is returned to either parent, it is more probable than not that she will suffer harm, and further that the child cannot be adequately protected by terms and conditions of an interim supervision order to the parents: Children’s Aid Society of Ottawa-Carleton v. T, at para 10.
[39] The standard of proof for placing the child in the care of a third party is "a reasonable likelihood of risk.” It is something less than the ordinary civil standard of proof on a “balance of probabilities”: Children’s Aid Society of Waterloo (Regional Municipality) v. BA, 2004 CanLII 12742 (Ont SC) at para 52.
[40] 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 (ON SCDC), [2005] O.J. No. 5050 (Ont. Div. Ct.) at para 26. At this stage, the Society does not have the higher burden of 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. See also Children’s Aid Society of Oxford County v C.O. 2020 ONCJ 400 at para 12.
[41] Section 93 of the CYFSA provides that the court may consider the past conduct of a person toward any child if that person is caring for or will have access to a child who is the subject of the proceeding: CYFSA, supra, s 93(1)(a)(b).
[42] In assessing risk, the court is also entitled to consider the criminal history of the parents including evidence of violent conduct and the potential exposure of the children to violence: Children’s Aid Society of Oxford at para 10.
[43] Section 93 of the CYFSA is an important legal consideration in this case. Given that the child has not been in the parents’ care effectively since birth and their contact with her has been limited to access visits, there is no evidence before the court that the parents have ever hurt the child or placed her in harm’s way. The issue in this case is whether the child protection concerns that were first identified by DYP in relation to the child protection proceedings involving the previous child, K.G. continue to exist today and give rise to a risk of harm to M.G. if placed in parental care. If I am satisfied that there is a present risk of harm to M.G., I must consider whether that risk of harm can be addressed by way of a supervision order with conditions on the parents.
[44] Finally, and perhaps most importantly, the court must keep in mind the purpose of the CYFSA, which is to promote the best interests, protection and well-being of children. Accordingly, the focus of the case must be on the needs and interests of the child: CYFSA, supra, s 1.
Analysis
Issue 1: Are there reasonable grounds to believe that there is a risk the child is likely to suffer harm if placed with either parent?
[45] The Society takes the position that, based on their observations and dealings with the parents, both during and outside of access visits with M.G., the parents have not dealt with their child protection concerns, and, therefore, M.G. remains at risk of harm if returned to them.
[46] The Society’s protection concerns are as follows:
a) Significant and long-standing alcohol abuse by both parents;
b) Domestic violence and adult conflict between the parents; and,
c) The seemingly limited parenting capacity of both parents.
[47] I will first address the concerns about alcoholism and domestic violence together and will then proceed to the concern pertaining to parenting capacity.
Risks arising from parent’s history of alcoholism and domestic conflict
[48] The Society’s concerns around domestic violence and alcohol use are based, in part, on police reports. In addition to the incident of November 16-17, 2016 involving K.G., described earlier, there are multiple other police reports of intoxication and domestic violence involving the parents between December 2015 and March 2020. These reports are summarized in the Society Worker’s affidavit of November 9, 2020 and attached as exhibits. These reports are listed below.
a) December 21, 2015: Parents intoxicated & mother driving under influence;
b) January 3, 2016: Father intoxicated and found by the police;
c) January 13, 2016: Father called the police about his vehicle being stolen and when the police arrived, the vehicle was in the driveway;
e) November 19, 2016: Intoxicated and domestic violence;
f) December 19, 2016: Parents intoxicated & domestic violence;
g) July 5, 2017: Father intoxicated & driving under the influence; father was subsequently convicted of the driving offence;
h) August 5, 2017: Parents intoxicated & domestic violence;
i) November 14, 2018: Parents intoxicated & domestic violence;
j) November 2019: Father was involved in a hit and run accident and did not have a valid driver’s licence at the time; and
k) March 14, 2020: Parents intoxicated & domestic violence.
[49] A few of these incidents are described as follows. On November 19, 2016, the police responded to a report of domestic violence at the parents’ home. The condition of the home suggested a physical altercation had taken place as there were decorations strewn about and bottles of hard liquor on the living room table. The police reported both parents were intoxicated, and they observed injuries on the mother. The father was arrested, but the mother refused to press charges.
[50] The mother admitted she was heavily intoxicated and explained the injuries were from falling and hitting her head. The father admitted they were both drinking heavily and that, “at most,” he had restrained her.
[51] The police were called again on December 19, 2016. They observed that the mother was intoxicated. She explained that she and the father had been drinking and, when they drink, they fight. The father was unconscious and appeared intoxicated. The mother does not dispute the events as reported by the police. The father states he does not recall the events of the night, but denies he was intoxicated or that a fight occurred.
[52] The following summer, on August 5, 2017, the police were called to the house for another incident of domestic violence. They observed the mother with black eyes and a bruised and swelling cheek. The mother stated she and the father had gotten into a dispute, and he hit her in the face. The father told the police the mother had consented to violent sex and presented a letter to them signed by the mother. When further questioned the mother changed her story and said the father had been teaching her karate. Both parents were observed to be intoxicated.
[53] In their affidavits, the parents provide different accounts of what happened. The father states he was teaching the mother karate earlier in the day and that the mother only had minor red marks on her face. He also reiterated that she consented to violent sex. The mother simply acknowledges she was intoxicated and that the father was teaching her karate. She states the father did not hit her and provides no explanation for the injuries observed on her face.
[54] On November 14, 2018, the mother and father were drinking at a club in the Ottawa Byward Market. The father became upset with the mother and was observed to push her into the front window of a business on the street. The mother screamed for help and the father continued to take her to the ground. Several witnesses observed the assault including a plain clothes RCMP officer. 911 was called. The father was arrested for assault. At the time, he told the police the mother was under the influence of drugs, and he was attempting to restrain her from assaulting him. The father explains in his affidavit that the mother was hitting him with bags, and he restrained her, but she fell. The mother admits to being intoxicated and to hitting the father. She claims that she tripped and fell.
[55] On March 14, 2020, the police responded to another incident of domestic violence. They observed that the mother was extremely intoxicated and unable to stand or compose full sentences. They observed open alcohol, spilt beer, and drinking glasses on the floor. There were dirty dishes on the counter tops and sink, a dustpan full of cigarette butts, and the dwelling looked like it had not been cleaned in a long time.
[56] The father does not address this incident in his affidavit. The mother admits she was intoxicated and was yelling. She confirmed the officers’ observations about the state of the home.
[57] Four of the five incidents described above and reported by the police occurred before M.G. was born, but after the birth of the parents’ other child, K.G., and while he was in foster care. The more recent incident of March 14, 2020 occurred after M.G.’s birth and suggests that the parents’ issues with alcohol and domestic violence have not abated and are cause for continuing concern.
[58] Unfortunately, neither parent has seriously addressed or engaged in programming to deal with their alcohol addiction.
[59] According to the Society, the mother did acknowledge at one stage that she had an alcohol problem, but now states she no longer does. However, the police and medical reports suggest this is not the case.
[60] First, the mother was convicted in 2015 for drinking and driving. The father was also in the vehicle and was heavily intoxicated.
[61] Second, in August 2016, the mother was admitted to hospital to give birth to K.G. At that time, she admitted to having 14 drinks a week and both parents admitted they were not ready to have a child. The father was also observed with a nearly empty bottle of alcohol.
[62] Third, in the two police reports of November 2018 and March 2020 described above, the mother is observed intoxicated during the incidents.
[63] Fourth, in the mother’s medical record, dated September 2, 2020, Dr. Cherinet Seid lists “alcohol use disorder” as one of the mother’s medical issues.
[64] Fifth, and perhaps most concerning, on July 2, 2020, about five months after M.G. was born, the mother attended the emergency department of the Civic for substance misuse and intoxication. The mother reported to the medical team that she has an alcohol addiction where she has been drinking daily for the past 12 years and up to 6-7 drinks per day. The mother admitted that, on this day, she had consumed 10-12 bottles of beer as well as a bottle of wine, with her last drink having been approximately four hours prior to attending the hospital. The mother wanted help to detox from alcohol and to do in-person rehabilitation. I find that this event not only confirms the mother’s on-going alcohol addiction, but constitutes, notably, a cry for help.
[65] The mother states in her affidavit that she has addressed her alcohol issues. She states she attended counselling for alcohol abuse in Gatineau but has not provided any evidence supporting this claim nor has the Society been able to verify it. The mother also claims she is on medication (naltrexone) which prevents her from drinking but has not provided any medical evidence to support this prescription or this course of medical treatment. Furthermore, the medical records obtained by the Society via the third-party production order do not indicate that the mother was prescribed any such drug.
[66] The mother claims that she attended a parenting class called “Positive Discipline” through Family Services in Ottawa. She claims that the parents attended eight of fifteen classes before the pandemic struck and classes were suspended. No supporting documentation was filed to support this claim.
[67] Counsel for the parents highlights the fact that the mother has a three-year card which indicates that she achieved a three-year period of “total abstinence”. This card was attached to the mother’s affidavit. However, little weight can be placed on the card as it is not dated. Moreover, the police and medical reports described above clearly indicate she has a serious and ongoing addiction to alcohol which she herself admitted in July 2020 when she attended the Civic seeking help for precisely this issue.
[68] While the father admits to drinking during some of the incidents reported by the police, he does not admit that he has an alcohol problem requiring treatment. However, there is considerable evidence, in addition to the police reports described above, indicating the father also has a long-standing alcohol problem which has not been successfully addressed.
a) August 2016 – The father attended the hospital for the birth of K.G. and was observed to have a nearly empty bottle of alcohol.
b) April 12, 2017 – The father attended the emergency department in a hospital in Gatineau complaining of flu-like symptoms. He admitted to drinking beers and shooters prior to arriving. While in the hospital, he was aggressive and uncooperative. He left before being examined.
c) May 2017 – The father was involved with the Centre d’Intervention de prévention en Toxicomanie de l’Outaouais, at which point it was noted that the father was in control of his alcohol consumption. A follow-up was suggested which the father declined because he felt he was not in need of treatment or services.
d) April 10, 2019 – Approximately three months after the birth of M.G. the father attended a colonoscopy. He was flagged as an at-risk patient requiring surveillance due to arriving for the appointment intoxicated.
e) October 19, 2019 – The father was brought to the Civic by ambulance due to a persistent cough and congestion. He admitted to drinking vodka that evening to help him sleep.
f) January 22, 2020 – The father attended the Civic for unspecified chest pain. He stated that he had a heart attack in 2019 but there was no record of this on file. The father reported drinking 2-3 beers a day. Concerns of alcohol abuse were noted.
g) June 26, 2020 – The father was diagnosed with mild to moderate reduced left ventricle function, possibly due to alcohol use. Concerns were identified with respect to his liver. The father was told to abstain from alcohol.
h) July 7, 2020 – The father was taken by ambulance to the Ottawa Heart Institute. He admitted to drinking 53 ml of alcohol per week.
i) July 22, 2020 – The father was scheduled for a follow-up call from a doctor at the Heart Institute. When the doctor reached him, the father was at a bar. The doctor advised him of the importance of staying smoke-free and avoiding alcohol. The doctor also noted that the father’s reports of his symptoms over the past three years were not consistent with the medical history he provided at the time of his admission. The Society Worker K. Pulfer also spoke to the father on this date and reported he sounded very intoxicated during their conversation. The father reported to her that he was out having beers with a friend.
[69] In addition to the above-noted reports, Justice Meunier stated in his March 2018 decision, that the father had attended two access visits with his son K.G. in August 2017 smelling of alcohol. During the legal proceedings involving K.G. in Gatineau, the Court of Quebec recommended that both parents undertake treatment for alcohol and that the father participate in an anger management program. The Society reports that neither has been done.
[70] Justice Meunier indicated in his January 19, 2020 decision, in relation to the proceedings involving K.G. in Quebec, that neither the mother nor the father have utilized the services available to deal with their child protection concerns. This decision would have been rendered about ten days after the birth of M.G. in Ottawa, making it abundantly clear to the parents the significant consequences of not taking steps to address their addiction issues.
[71] The Society Workers have also had an opportunity to observe the parents since the child’s apprehension. The Society Workers express concerns that the parents continue to drink. For example, during a virtual meeting on June 19, 2020, both parents sounded intoxicated and were late to sign in. When concerns were raised the father became enraged denying any alcohol use. The father said that “they” would not do any assessments or any programs or going to do anything. Both parents deny they were drinking on this occasion.
[72] The Society reports that it has been challenging to address the allegations of drinking and domestic violence with the father. The Society Worker attempted to discuss the police reports with the father in a meeting on November 11, 2020. The father’s response was that all the police reports were a lie. When pressed, he denied the mother called 911 for assistance or that the police attended the home. He said it had all been fabricated. The father used derogatory language when referring to the DYP worker and with the Society worker.
[73] On November 16, 2020, when asked by a different Society Worker about the breathalyzer he was supposed to take as part of a check in before seeing the child, the father said he smashed it and would buy a new one.
[74] The Society reports that the father also fails to recall conversations he has had with Society Workers in relation to his alcohol consumption, some of which would have occurred while he was or appeared to be intoxicated.
[75] The father denies in his affidavits that he has an alcohol addiction.
[76] In addition, the father refers to his other medical conditions, including prostate and rectal cancer and heart attacks, none of which is supported by the medical records that were produced for the Society. This misinformation is corroborated by the medical doctors and nurses who have also indicated that the father’s reports are sometimes inconsistent with his earlier reporting and medical history. In one instance, for example, when speaking to a doctor from the Heart Institute, he reported to her that he was a licensed dietician.
[77] The Society also reports instances of the father providing incorrect or misleading information. For example, the father provided false information to the Society Workers who initially met with him at the Civic in January 2020 about his involvement with the police, alcohol issues, and relationship with his previous child. Another Society Worker reported the more recent challenges with communicating with the father over access visits. The father would claim the receptionist was informed he had arrived for visits which the receptionist would explain did not happen. The father sometimes make non-sensical claims that he attends Ottawa Police meetings or is being head-hunted for high-paying jobs but the Society’s involvement is preventing his hire.
[78] The father refuses to take a psychological assessment claiming it is unnecessary because of his high IQ. When he was told by a Society Worker that this was a recommendation of the Social Worker that met him at the Ottawa Civic Hospital, he denied that this meeting was in relation to his intelligence or mental health.
[79] I find that the reliability of the father’s claims and affidavit evidence is undermined by the fact that he has trouble recalling information and has a pattern of providing misleading information to medical staff and the Society. Whether this conduct of providing misinformation is intentional or a simply a consequence of limited cognitive recall arising from alcohol consumption at the time remains unclear.
[80] The father filed a letter dated January 20, 2020 from Mario Viens from Centre d’Intervention et de Prevention en Toxicomanie de l’Outaouais to the father’s former counsel Émile Laplante. In the letter, there is reference to a meeting held with the father in January 2017 about his alcohol issues and a recommendation for follow-up. Mr. Viens reports the father returned to him in May 2019 for the purpose of obtaining the letter and a short evaluation. Mr. Viens concludes that the father is on the right path. While the letter is positive, it provides no information about what in fact the father did in those two years to address his alcohol addiction issues. If the father did undergo treatment, it is difficult to understand why it would not have been addressed or acknowledged in the Quebec judicial decisions. Furthermore, much of the letter appears to be based on the father’s own self-reporting of his condition. In the absence of additional evidence, I find the letter does not establish that the father has addressed his alcohol-addiction issues.
[81] Upon review of the evidence filed by both parties, I find that the mother and father have a serious on-going issue with alcohol addiction. There is no evidence that either parent has undertaken any course of medical or other treatment to address their addiction. I find that, if the child were placed with the parents, she would be exposed to the parents’ alcohol addiction and would be at risk of harm from either neglect or exposure to domestic violence.
Risk arising from parenting capacity
[82] In assessing the mother and father’s fitness to parent, the Society relies not only on the reported conduct of the parents vis-à-vis their previous child K.G., but also their own observations of the parents during access visits.
[83] The parents have had the opportunity to visit with M.G. every month since her birth. The Society reports the access has been as follows:
a) January – The parents attended 6 of 7 visits.
b) February –The father attended 8 of 13 visits and the mother all 13 visits.
c) March – The mother attended all 7 visits and the father attended 5 of 7.
d) April – The parents were offered 7 virtual visits due to COVID-19. The mother attended all the visits and the father 6 of 7.
e) May – The parents were offered 11 virtual visits, but half did not take place because of technical difficulties with the parents’ computer or internet connection. The Society then provided a laptop to facilitate future visits.
f) June – The parents attended 7 virtual calls and resumed in-person visits starting on June 17, 2020.
g) July – The parents were offered 3 virtual calls and 15 face to face visits. The mother missed one in-person visit in early July and replaced it with a virtual call. The parents attended all 9 in-person visits in the latter part of July 2020.
h) August – The parents were offered 5 virtual visits and 13 in-person visits. They attended 10 visits.
i) September – The parents attended 15 of 17 in-person visits and 1 virtual call.
j) October – The parents attended 6 of 9 in-person visits and 5 of 7 virtual visits.
k) November – The parents were offered 10 in-person visits and 3 video calls. The parents cancelled 7 visits.
l) December 2020 – It is unclear how many visits were offered, but the parents cancelled 5 visits and two visits within a two-week period resulting in the access schedule returning to the Society’s discretion.
m) January 2021 – On January 20, only the mother attended the visit as the father was ill. On January 21, the parents had a virtual visit while awaiting a COVID-19 test result. On January 25, only the mother attended the visit as the father was ill. On January 26, only the mother attended the visit as the father was ill. On January 28, only the mother attended the visit as the father advised he was meeting with his lawyer.
[84] The Society acknowledged that there were occasions when the cancellations were beyond the parents’ control, such as awaiting COVID-19 test results, being sick, and in some cases the father having to go to work. The father has been working in the food and beverage industry for the past year, but states most recently in his affidavit that he is presently unemployed. The mother states she has been on maternity leave.
[85] The Society noted there were many visits cancelled because the parents did not check in with the Society before the visit. The parents claim to have sent messages for the check-in, but the Society states they did no not received them.
[86] I do not find the parents’ failure to attend all the access visits is necessarily determinative of their parenting capacity. I also note that the past year was particularly challenging due to COVID-19, and caution had to be taken before visiting anyone if you were not feeling well. Having said this, it is difficult to understand why the mother would miss any visits outside of illness given she has been on maternity leave this past year and was not working.
[87] The Society Workers reported positive progress during the access visits in 2020. The parents were polite and respectful. They were open to learning how to do things. For example, they did not initially know how to tighten the car seat straps but were able to do so after being shown. They were caring towards one another during the visits and quiet and calm with the child. In February 2020, the parents expressed an interest in taking a parenting program called parenting through Positive Discipline. It is unclear if this course was completed. In-person visits became more challenging after the onset of COVID-19, but the parents did continue with virtual visits and eventually resumed in-person visits.
[88] The Society reports that the parents were able to make progress in several areas such as ability to properly change diapers, prepare bottles, maintain good eye to eye and facial contact with the child, timely attendance for visits, openness to responding to cues from the Child Youth Counsellor (CYC) and to using a communication book.
[89] The Society does, however, identify continued concerns with respect to the parenting capacity of both parents. First, the Society Workers reported in their November and December 2020 affidavits that they observed that the mother had very limited interaction with the child and when she did, she had difficulty engaging with the child. They observed she struggled when left alone with the child and hardly held or cuddled the child.
[90] Second, the Society reports that the mother has difficulty caring for the child independently of the father. She did not take initiative to care for the child herself and did what she was told to by the father. The mother had difficulty soothing the child when she cried and comprehending the child’s cues, particularly when she was tired and hungry. The Society Worker reported, for example, that on December 16, 2020, the child cried for one and a half hours of the two-hour visit.
[91] Third, the Society reported in the November and December 2020 affidavits that the father often had difficulty coping with the child’s crying, would get frustrated, and had difficulty soothing the child.
[92] It is important to note that many of these observations are observed by not just one, but several Society Workers, and as recently as February 2021. These observations are made during two-hours visits. Parenting is a 24/7 job particularly for an infant. It is necessary to ensure that the child can be adequately cared for by each parent at all times if placed in their care.
[93] The Society reports that the parents lack insight into child development and the need for consistency, structure, and routine for the child. The parents struggled with following the directions of the foster parents and child and youth counsellor with respect feeding and nap times for the child. The parents struggle with letting M.G. be active and curious. They would often let her play rather than letting the child nap. They had difficulty with letting the child be active and curious and often held her or had her sit in the car rather than have tummy time. However, in more recent affidavits, the Society has indicated that the mother has been able to make progress in several areas.
[94] The parents take issue with many of the claims by the Society. They provide different explanations for many of the incidents and concerns described by each of the Society Workers.
[95] While the mother does dispute many of the Society’s claims in her affidavits, she does acknowledge that she is a new mom and at the outset of the access visits, she was learning to do things and needed additional help. This is consistent with the evidence of the Society Workers who noted that both parents were amenable to instruction and did make progress with various parenting skills. She states that she took some of the sessions of the parenting course recommended when dealing with the proceedings related to her previous child but discontinued the sessions as she did not feel what she was learning was appropriate for her situation and the age of the child at the time.
[96] In the affidavits and supporting exhibits filed, there were several references as to whether the mother has a developmental delay. Dr. Gagne, the triage nurse at the Civic, the DYP worker, and the present Society Worker have expressed concerns about the mother having a delay. The mother denies in her affidavit that she has a developmental delay.
[97] Another concern identified by the Society is that the father often speaks for the mother. Several medical staff at the Civic, the Social Worker at the Civic, the DYP Worker, the mother’s recent physician Dr. Seid, and several Society Workers report that the father does not allow the mother to speak. Much of the information about the mother provided to the professionals comes from the father. The Society Worker reported that the father will speak for the mother in every meeting even when questions are directly asked to the mother. In some meetings, the father directs the mother what to say and when asked to let the mother speak, the father will not do so and speak over her and answer for her. The father even answers her cell phone and email inquiries. The Society also reports that the mother often refuses to attend for visits or meetings without the father.
[98] The mother takes the position that the father is not speaking for her and that they operate as a team. The father states that the mother is quiet during the meetings with the Society because she is upset and frustrated with the child protection case. He denies that he prevents mother from speaking and if he does, he claims it is because he is protecting her from the Society using her words against them.
[99] Whether this behavior of speaking for the mother is a consequence of the father’s controlling character or because the father is attempting to compensate for the mother’s cognitive challenges is unclear. Professionals have ordered psychological assessments for both parents which do not appear to have been completed. The father explains that the challenge has been, in part, the costs of the assessments which I concede is a legitimate concern given the financial means of the parties.
[100] Considering this information, I would recommend that the mother obtain a psychological or medical assessment. This will assist the Society in determining what type of supports she may need to develop her parenting skills. It will also provide the court with a better understanding of the mother’s situation and her parenting capacity independent of the father.
[101] It is also recommended that the Society continue to assess the parents’ capacity and fitness to parent independently of each other. To this end, I would recommend that some of the visits are done with mom alone to properly observe and assess the concerns about her ability to engage with the child independent of the father.
[102] Finally, the parents’ information with respect to residency is unclear. The parents were residing in Ottawa, Ontario when the child was born in […] 2020. However, they reported to the court in their pleadings that, as of December 16, 2020, they were living in Quebec. If that is the case, they have not reported to the Society an official change in address nor has anyone from the Society had an opportunity to visits the Quebec home. It is recommended that the parents provide their proper addresses to the Society and allow the Society Workers to observe the condition of the home.
[103] Based on the evidence filed, I find that the parents have made sincere efforts to improve their parenting skills and have made considerable progress in developing their parenting capacity. Nonetheless, I find that both parents would benefit from additional training in parenting. The more recent affidavits suggest that there are still some visits where the parents, particularly the mother, is not entirely engaged with the child. Consistency of visits also continues to be an issue. Furthermore, the parents have changed residences several times in the past year and the Society has not been able to confirm or assess the most recent residence to ensure that it is a safe and nurturing environment. For all these reasons, I find that the child would be at risk of harm if placed in the care of the parents.
Issue 2: If there is a risk of harm to the child, can the child be adequately protected by imposing a supervision order on the parents with terms and conditions?
[104] In making a temporary custody order, a court must choose the order that is the least disruptive placement consistent with adequate protection of the child: CYFSA, supra, s 1(2); Children 's Aid Society of Hamilton v. BD and FTM, at para 29.
Placement with parents
[105] In this case, the Society takes the view that there is no less intrusive disposition for the temporary care and custody of M.G. other than keeping her in Society care.
[106] The Society takes the position that the parents have a history of not respecting court orders. The Society is not confident that they will abide by the terms of a supervision order. In this regard, the Society points to the various orders imposed by the Quebec courts during the custody proceedings involving the parents’ other child, K.G., in the last few years.
[107] Counsel for the parents takes the position that it is very difficult to prove that a supervision order would not address the child protection concerns without a history that the parents have not respected court orders in the past. Counsel argues the parents should be given a chance to parent.
[108] I agree with the Society. I do not find that the child can be protected by way of a supervision order for several reasons. First and foremost, the parents do not acknowledge their alcohol addiction issues and there is evidence as discussed above that they continue to drink. Given their long-standing alcohol addiction, I am not satisfied that they are able to abstain from consumption of alcohol to properly care for the child simply because such a term is imposed by this Court.
[109] Second, while the parents have made considerable progress in their parenting capacity during the access visits, I am not satisfied based on the materials filed, and the observations of the Society Workers over the course of the last 14 months, that the parents are presently fit to care for this infant even under a supervision order.
[110] Third, the affidavits of the Society Workers indicate the challenges they have had with communicating and dealing with both parents for different reasons. The mother is not communicative, and the father has often been disrespectful and easily angered. I am not confident that the parents would be amenable to direction and supervision by the Society. In fact, the Society reports the parents have recently stopped meeting with their assigned Society Worker altogether.
[111] Fourth, the parents have no support network and have not presented a plan of care that ensures the child could be adequately cared for. They have neither confirmed their residence nor arranged for the Society Workers to attend their latest home to ensure it is a safe and appropriate environment for the child.
[112] Finally, the parents were on previous court orders issued by several judges in Quebec during child protection proceedings involving their previous child and did not follow through with the recommendations made in those court orders. The mother and father were to follow-up and apply the recommendations of professionals on issues of anger management, domestic violence, alcohol addiction, and parenting skills. They have not filed any evidence to demonstrate that they followed through on any of these recommendations that were court ordered for the specific purpose of addressing child protection concerns.
[113] Similarly, the parents were provided with the Society’s Plan of Care in […] 2020 after the child was born and apprehended outlining the Society’s expectations of them going forward. The Society reports that they have not followed through significantly on those conditions either.
[114] For all these reasons, I am not satisfied that the child could be adequately protected against the current risk of harm by imposing a supervision order with terms and conditions.
Flight risk
[115] The Society is also concerned that should the child be returned to the parents under a supervision order, the parents would flee the province with the child. In November 2020, the father told the Society Worker that he was planning on moving to Calgary by the end of November. However, after the care and custody hearing was adjourned to January 2021, the father informed the counsellors that the parents had agreed with their legal counsel to postpone their plans until after the rescheduled motion.
[116] While I acknowledge that on several occasions in 2020, the father told the Society Workers that he and the mother were planning to leave the province and, in some instances, the country, it is unclear how much weight should be placed on the father’s remarks. The father acknowledges he made the remarks about moving out of frustration. He states that while things have been difficult for him and the mother since coming out east, the parents intend to remain in the jurisdiction until these proceedings are completed.
Alternative placements
[117] Currently, the Society has very limited knowledge about the parents' family, friends or support network. It appears that the parents’ supports are quite limited or non-existent in the Ottawa area. The father identified three supports in his affidavit. The parents report all their friends and family are residing out West. Little is also known about the family network out west.
[118] The parents had suggested one friend to possibly care for the child, but when the Society followed up with him, he indicated he was only willing to support the parents and had not intended to present a plan for the care of the child.
[119] In short, while the Society continues to support and assess any kin placement suggested by the parents, there are currently no kin placements available for the child.
Conclusion and Order
[120] The focus in this case must, as always, be on the needs and the best interests of the child. At this point in time, I find that the Society has established the child would be at risk if placed under the parent’s care and that this risk cannot be addressed by way of a supervision order with conditions. There are also presently no options for a kin placement. Therefore, I find the least disruptive option is to have the child remain in Society care. Pursuant to s. 94(2) CYFSA, there will be a three month temporary with prejudice order as follows:
A. The child will remain in the temporary care and custody of the Society pending disposition of the application.
B. Access to the parents shall be at the discretion of the Society with respect to location, frequency, duration, and level of supervision, but subject to a minimum of four times a week for two hours. If either parent misses two visits in a row in a two-week period without valid justification, then access for the concerned parents(s) shall revert to the Society’s strict discretion.
[121] The parents continue to deny they have an alcohol addiction. However, there is overwhelming evidence from multiple sources discussed above that the parents have a long-standing alcohol addiction which gives rise to the present child-protection concerns identified by the Society. This is a temporary order. If the parents wish to have the child returned to their care, they must work cooperatively with the Society in building their parenting capacity and obtain the assessments, supports and services they need to alleviate the present risk of harm to the child.
Somji J
Released: April 9, 2021
COURT FILE NO.: FC-20-CP-5
DATE: 2021/04/09
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017, S.O. 2017, c. 14, Sched. 1
AND IN THE MATTER OF M.G. (DOB: […], 2020)
BETWEEN:
The Children’s Aid Society of Ottawa
Applicant
– and –
S.G. (“father”) &
K.D. (“mother”)
Respondents
REASONS FOR DECISION
SOMJI J.
Released: April 9, 2021