COURT FILE NO.: 21-134
DATE: 20210615
ONTARIO
SUPERIOR COURT OF JUSTICE
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 87(8) and 87(9) OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017
IN THE MATTER OF THE CHILD, YOUTH and FAMILY SERVICES ACT, S.O. 2017
and in the matter of
RE: Children’s Aid Society of the United Counties of Stormont, Dundas & Glengarry vs. J.V. and M.F
BEFORE: Madam Justice Hélène C. Desormeau
COUNSEL: Hayley Marrison-Shaw, counsel for the Applicant
J.V., for herself
Neha Chugh, counsel for the Respondent M.F.
Julie Bergeron, OCL
DATE HEARD: June 14, 2021
RULING ON TEMPORARY CARE AND CUSTODY HEARING
Justice Hélène C. Desormeau
[1] This ruling is in relation to a temporary care and custody hearing held June 14, 2021 with regard to the children B.C.V. who is 6 years old and Z.F., who is 8 years old.
[2] For the reasons set out below, the orders sought by the Children’s Aid Society that the children be placed in the temporary care of the Society is granted, with access at the discretion of the Society.
Materials reviewed
[3] The Court has reviewed and considered the following evidence filed for this motion:
(a) For the Society:
a. Notice of Motion, dated May 7, 2021
b. Affidavit of Gavin Fletcher, dated May 7, 2021;
c. Reply Affidavit of Cassondra Wheeler, dated June 2, 2021; and
d. Factum.
(b) For the Mother:
a. Affidavit dated May 28, 2021; 5 text messages provided June 4, 2021 regarding Mr. Fletcher, and “22-page Response to the new documents”, with the six pages of photographs attached thereto; and 9 pages of CPIN disclosure; and the letters from the Inspire Community Support Services and the Ministry of Children, Community and Social Services. The Response to the new documents and attachments mentioned herein were affirmed on the record on June 4, 2021.
(c) For the Father:
a. Affidavit of M.F., dated June 1, 2021.
Background
[4] The Society is seeking the following orders:
An order that B.C.V. and Z.F. (“the children”) be placed in the temporary care and custody of the Society pursuant to subsection 94(2)(d) of the CYFSA.
The Mother shall have access to the children at the discretion of the Society or its delegate. The Society shall have discretion with respect to location, duration, level of supervision and supervisor. The Mother shall have access with the children a minimum of twice per week. Should the Mother miss four access visits in a two- week period without reasonable excuse, access frequency shall revert to the Society’s discretion.
The Father shall have access to the children, B.C.V. and Z.F., at the discretion of the Society.
The children shall have access to their siblings, H.M. and N.M., as arranged by the Society and the siblings’ caregivers. Access may be virtual.
[5] The Mother opposes the Society’s motion and seeks an order returning the children to her immediate care.
[6] The Father is not arguing the temporary care and custody hearing today and is working with the Society to commence a graduated access plan with a view of having the children placed in his care.
[7] A brief overview of the history of this file shows that the Mother has four children, ages ranging from 14 years old to 6 years old. N. is 14 years old. H. is 13 years old. The younger two children, B.C.V. and Z.F. are the subject of this motion.
[8] The Society alleges 30 involvements with the family. I have read the affidavit filed by the Society, and for the purpose of this hearing, as discussed on June 4, 2021 with all parties, I have not considered any evidence or allegations pre-dating 2021.
[9] On May 5, 2021, the children B.C.V. and Z.F. were removed from the care of their Mother pursuant to a warrant, and placed in Society care. The Society alleges that their current involvement is due to escalating concerns with respect to the Mother’s mental health, including paranoid behaviour, the children being vulnerable and not visible within the community, repeated concerns about the Mother’s physical and verbal treatment of the children, concerns that the Mother may be using drugs, the Society’s inability to appropriately assess the situation and determine whether there is existing safety due to the Mother’s refusal to engage, the continued expressions of concerns by the professionals involved with the family who have a duty to report, and the Mother’s escalation with the same professionals.
[10] On May 10, 2021, the Court made a temporary, without prejudice order placing the children in the care of the Society.
The Applicable Law
[11] The Child, Youth and Family Services Act (“CYFSA” or “Act”) promotes as its paramount purpose the best interests, protection, and wellbeing of children and recognizes the need for help to give support to the autonomy and integrity of the family unit. It also recognizes that the least disruptive course of action available and appropriate should be considered. It provides that services to children should respect the child’s need for continuity of care and for stable relationships within a family: Children’s Aid Society of Algoma v. T.W., 2018 ONCJ 451, at para. 28; also see preamble of CYFSA as well as s.1(1) and s.1(2) CYFSA.
[12] Section 74(3) CYFSA sets out the criteria the court must consider making an order or determination in the best interests of a child.
[13] Section 94(2) CYFSA states that where a hearing is adjourned, the court shall make a temporary order for care and custody providing that the child,
(a) remain in or be returned to the care and custody of the person who had charge of the child immediately before intervention under this Part;
(b) remain in or be returned to the care and custody of the person referred to in clause (a), subject to the society’s supervision and on such reasonable terms and conditions as the court considers appropriate;
(c) be placed in the care and custody of a person other than the person referred to in clause (a), with the consent of that other person, subject to the society’s supervision and on such reasonable terms and conditions as the court considers appropriate; or
(d) remain or be placed in the care and custody of the society, but not be placed in a place of temporary detention, of open or of secure custody.
[14] Section 94(4) CYFSA states that the court shall not make an order under clause (2) (c) or (d) unless the court is satisfied that there are reasonable grounds to believe that there is a risk that the child is likely to suffer harm and that the child cannot be protected adequately by an order under clause (2) (a) or (b).
[15] Section 94(5) CYFSA goes on to state that before making a temporary order for care and custody under clause (2) (d), the court shall consider whether it is in the child’s best interests to make an order under clause (2) (c) to place the child in the care and custody of a person who is a relative of the child or a member of the child’s extended family or community.
[16] Where the Court makes a temporary order under section 94(2)(b) or (c) CYFSA, section 94(6) CYFSA permits the Court to impose reasonable terms and conditions relating to the child(ren)’s care and supervision on the parent or the person who will have care and custody of the child under the order, other than a foster parent, who is putting forward a plan or who will participate in a plan for care and custody of, or access to the child(ren). It also allows the Court to impose reasonable terms and conditions on the Society that will supervise the placement. If the Court makes an order pursuant to 94(2)(d) CYFSA, section 110 CYFSA applies with the necessary modifications.
[17] The legislation creates a hierarchy of the choices available to the Court, starting with the least intrusive option at s. 94(2)(a) CYFSA.
[18] Before making an order under s.94(2) CYFSA, the Court shall take into consideration the child’s views and wishes, given the due weight in accordance with the child’s age and maturity, unless they cannot be ascertained: See s.94(11) CYFSA. In this case, the OCL is able to present the children’s views and wishes.
[19] At a temporary care and custody hearing, the onus is on the Society to establish, on credible and trustworthy evidence, that there are reasonable grounds to believe that there is a real possibility that if a child is returned to the Respondent Mother, it is more probable than not that he or she will suffer harm. Further, the onus is on the Society to establish that the child cannot be adequately protected by terms and conditions of an interim supervision order. See: Children's Aid Society of Ottawa-Carleton v. T. 2000 CanLII 21157 (ON SC), 2000 CarswellOnt 2156 (Ont. S.C.J.) at para. 6. Simply stated, this is a two-part test that the Society has to meet.
[20] The Court must choose the order that is the least disruptive placement consistent with adequate protection of the child (subsection 1 (2) CYFSA): Children's Aid Society of Hamilton v. B.D. and F.T.M., 2012 ONSC 2448, at para 29; CAS of the Regional Municipality of Waterloo v. S.S.H. and S.T.E., 2019 ONSC 5365, at para. 39; also see s.94(2) CYFSA.
[21] Terms and conditions relating to the children's care and supervision must be reasonable and proportionate to the specific risks highlighted by the evidence: CAS of the Regional Municipality of Waterloo v. S.S.H. and S.T.E., supra, at para. 40.
[22] 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.). The burden on the Society at this stage does not go as high as showing that, on the balance of probabilities, there is an actual risk to the child in the parent’s care: CCAS of Toronto v. M.L.R., 2011 ONCJ 652.
[23] The temporary care and custody proceeding, though governed by a self-contained code of procedure contained in the Act and the Rules, will follow the normal principles of evidence except that the interests of the children are not to be thwarted by an over-rigid application of the rules of evidence or procedure. However, the interests of the child will always require that the truth be established and the rules of evidence and procedure followed: Family and Children’s Services of Guelph and Wellington County v. O.-D.B. and D.B., 2019 ONCJ 961, at para. 47.
[24] Subsection 94 (10) CYFSA permits the Court to admit and act on evidence that the Court considers credible and trustworthy in the circumstances. In determining what evidence is credible and trustworthy, the evidence in its entirety must be viewed together. Evidence that may not be credible and trustworthy when viewed in isolation might reach that threshold when examined in the context of other evidence. See: Jewish Child and Family Services of Toronto v. A.K., 2014 ONCJ 227 at paragraph 18; CAS of the Regional Municipality of Waterloo v. S.S.H. and S.T.E., supra at para. 38.
[25] Evidence is not to be excluded solely on the basis that it is hearsay evidence and it follows that any party can lead evidence of statements made which are either not repeated or denied in court. This is particularly pertinent in relation to statements made by the children to social workers or their own counsel concerning how he or she has been treated: Family and Children’s Services of Guelph and Wellington County v. O.-D.B. and D.B., supra, at para. 51.
[26] As Caspers J. states in O.-D.B. and D.B., supra, the fundamental principle is succinctly articulated by Justice Katarynych in her decision in Children's Aid Society of Toronto v. M. (A.), 2002 CanLII 45665 (ON CJ), [2002] O.J. No. 1432 (Ont. C.J.) at paragraphs 69 and 70,
Just dealing requires a respect for the rules of evidence. At the risk of stating the obvious, what is evaluated in this motion, as in any other motion, is evidence. Supposition, conjecture, speculation, leaps of hyperbole, innuendo, gossip, unqualified opinion where qualified opinion is required - all have no place in an affidavit. If the decision-making in the motion is to be just, counsel must ensure that the affidavits are stripped of this sort of material before they are filed in the motion record.
At this early stage, the evidentiary case can be expected to include information obtained from others that is then advanced through the vehicle of a social worker's affidavit as "credible and trustworthy" evidence. The information must rise to the level of evidence....
[emphasis in original]
Analysis
[27] Based on evidence which I must find to be credible and trustworthy, it is the Society’s onus to satisfy the Court that (a) there are reasonable grounds to believe that there is a risk that the children are likely to suffer harm and that (b) the children cannot be adequately protected by an order returning the children to the Mother, with or without a supervision order. The burden of proof on the Society at this stage is something less than proof on a balance of probabilities.
[28] If the Society discharges its burden of proof under s.94(2)(a) and (b) CYFSA, such that the children cannot be returned to the care of the Mother, I would then evaluate the alternate plan proposed by any parties to determine if placement, subject to the Society’s supervision, does not place the children at risk. While there was mention of the children’s maternal grandmother putting forward a kin plan, at this motion, no such plan is in evidence.
[29] I must consider the least restrictive order available and appropriate in the circumstances of this case, which is consistent with the best interests, protection and well being of the children in question: Children’s Aid Society of Halton (Region) v. A.(J.), 2011 ONCJ 624, at para. 43.
[30] At this hearing, the children were represented by OCL. I must consider the children’s wishes, given due weight in accordance with their ages and maturity. Though the OCL is new to the file and has only met with Z.F. once, she has been the OCL on the family law file involving N. since 2016, and therefore has insight into the family.
[31] The OCL expresses that the children love their mother very much, and they know she loves them too. However, the OCL advises that you can see that the children are exhausted and tired, and from what Z.F. indicates, she knows mom is tired too. Z.F. is happy seeing both her Mother and her Father, and of course she wants to go home, but right now she is okay where she is. She is happy right now seeing her Mother twice per week, as well as having access with her siblings. Ultimately, the children want the Mother to get better, to address her ongoing challenges, because they are all tired. Hopefully the Mother is able to focus her energy to get help for herself and the children.
[32] I have also considered the evidence provided by both the Society and the Mother about the children’s views and wishes.
[33] Having considered the circumstances of this case, at this early and interim stage of the child protection proceedings, I conclude that the children cannot be returned to the Mother’s care, with or without a supervision order for the following reasons.
[34] I accept that the Mother called the Society in March 2021 for help and support for the family when she and her daughter N. were having conflict, which ultimately led N. to go to the maternal grandmothers, and then N.’s father’s (R.M.) home.
[35] The Society does not dispute that their most recent involvement on March 22, 2021 stemmed from concerns raised due to N. leaving the Mother’s home. However, at the same time, there were numerous profession reports made concerning J.V. and the children. The information received by the Society as their initial investigation commenced became more concerning with regard to the younger children in the home.
[36] The Society expressed concern about the children not attending school or being seen in the community. B.C.V. is autistic and non-verbal. Reports from professionals raised concerns about the Mother’s mental health and the effect it was having on the children. Collaterals reported, and the Society worker was able to observe, the Mother’s escalating behaviour to which the children were exposed.
[37] Setting aside for now the history outlined in Child Protection Worker (“CPW”) Fletcher’s affidavit, the evidence provided from 2021 onward includes professionals with a duty to report being concerned about the Mother’s paranoia about fires and about being watched. Three professionals provided evidence about the persistent and improperly treated head lice issues with the children, which has been ongoing for over a year. Two professionals provided evidence of the Mother having what appear to be flea bites all over her body. There was evidence that there are nine cats in the home and there was one room that always had cat feces on the floor and wall.
[38] The undisputed evidence was that N. and Z.F. were parentified.
[39] There was evidence from professionals who have a duty to report regarding concerns about the children’s hair being pulled, that B.V.C. would often have bug-bites all over her, that Z.F. would have posted a video online where she stated that her Mother put her in her bedroom and told her she was leaving, where the 8 year old would be home alone (possibly with B.V.C.). The video was verified by the worker.
[40] Professionals also reported that the children were not attending school. This is not denied by the Mother, who indicates it was due to their head lice issue. B.C.V.’s service provider suggests it is due to the Mother’s paranoia that someone would take the children from school.
[41] Concerns were reported about the Mother’s mental health, such as hearing the Mother having screaming matches to her deceased father.
[42] The Mother did not deny the assertion that when she was bored, she would go into B.C.V.’s room, when the child’s worker was present, and say “watch this”, and proceeded to scream loudly, which triggered B.C.V. to scream as she does not like loud sounds.
[43] Concerns were reported about the children having restrictions on attending the kitchen and getting access to food.
[44] Service providers were asked by the Mother to lie, including to lie to the police about the children’s maternal grandmother allegedly assaulting the Mother.
[45] The uncontested evidence was, and I accept, that the Mother made a false report to the Cornwall Police Services alleging that N. was a threat to herself and others and requested police assistance. After the police attended, they discovered the Mother had sent them to N.’s fathers’ home. After they checked the home, it was found that the Mother’s claims were all false.
[46] I accept the worker’s uncontested evidence that the Mother was verbally aggressive, hostile and swearing at him when N. was not removed from her father’s home and not returned to the Mother. I accept the worker’s uncontested evidence that the Mother told him that if he would ever go near her house again that she would assault him.
[47] Concerns were noted about the Mother having locks on all of the children’s doors, and N.’s statements that the children were locked in their rooms until the Mother got up. The responsibility fell to N. to get the children up, and make sure they ate. One of B.C.V.’s service providers gave evidence that upon arrival at the home, B.C.V. was often in her room with the latch on the door. B.C.V. was not allowed to go outside and was stuck in her room with her service providers when they attended. This limitation restricted the services that could be offered to B.C.V., which, coupled with the Mother’s heightened behaviour and threats, caused the service provider to put services on hold on or about April 19, 2021.
[48] Due to all of these reports, on April 22, 2021 CPW Fletcher tried to discuss with the Society’s concerns with Mother. The Society offered to work with the Mother on a voluntary basis in an attempt to mitigate the concerns. The Mother was not open to engage with the Society, and blamed them for what was happening. She told the worker not to come to her house unless he had a Court order, and threatened to sue the Society.
[49] On April 23, 2021, the Society obtained a warrant to take the children to a place of safety. When they attempted to execute the warrant, with police involvement, the Mother barricaded herself and the children in the home. She yelled to the police that they would have to shoot her if they entered the house. She brought the girls to the window and told them that the Society was trying to take them away. Both of the girls’ faces were against the window, and at one point Z.F. started to swear at the police.
[50] Due to the level of trauma to which the children were being exposed, the Society and the Mother agreed to the children’s maternal grandmother staying with the family to ensure their safety until the following Monday. The Mother thereafter refused to allow the worker to attend, and stated that there was a cease and desist order on CAS, and that if they were to attend the home the worker would be arrested. The Court has no proof of this alleged order.
[51] On May 5, 2021, with the assistance of the police, the children were brought to a place of safety.
[52] At the five day return, on May 10, 2021, and in her Affidavit, the Mother indicates she has Borderline Personality Disorder (“BPD”), with antisocial threats [sic] and had been up for two days due to her autistic child and not sleeping due to lack of information about N. She states that N.’s father used to abuse her physically and would not take her calls. She was tired of not being heard and asked to be forgiven for her behaviour at the five day return.
[53] She provides a description of paranoid personality disorder, impulsive and risky behaviours which she states are common for those with BPD. She says intense mood swings and explosive anger are also a common symptom of BPD. She says this explains her behaviour since March 22, 2021.
[54] Her evidence is that on March 22, 2021, the Mother tried to reach R.M. with regard to their child N., who she believed was at her mother’s home. He went behind her back, called the police, and brought N. from the maternal grandmother’s home to his home instead of bringing her home to the Mother. This was after not seeing the child for a significant amount of time and a failed attempt to reinstate parenting time in July 2020. Since that time, R.M. has posted on social media about N., and did not send her to school knowing that the Mother could pick her up. The Mother alleges R.M. has kept N. “captive”.
[55] She provides information responding to R.M’s affidavit (N.’s father), which is not before the Court on this file, and their mutual children do not form part of these proceedings. While I do not reiterate the allegations herein, where relevant to the assertions made by the Society and the Mother’s position, they have been considered by the Court. The Mother does assert that R.M. made false allegations to the Society against her, such as her being mentally ill and back on drugs.
[56] She states that P.W., who is the father to one of N.’s friends, is a drug addict and alcoholic. She would not allow N. to attend that residence due to her concerns. She would like his phone records and for him to be summonsed to verify his claims.
[57] The Mother asserts that CPW Fletcher has a personal vendetta against her, and he did not do his job properly, that he has yet to speak to anyone when contacted, apart by text message. Had he done his job, he would have seen that she has a very large four-bedroom home, with a large fenced-in back yard and a lot of food in the home. She also takes the children to every medical appointment.
[58] She states the only reason she kept the children inside as she was fearful they would be injured by anybody outside as B.C.V. is a runner. She stated at the hearing “if I let go of her hand she will die”. The home has a full security system, with an alarm for every door and window. She denies there being locks on the doors.
[59] The Mother’s evidence is that she has been a victim of domestic violence by N.’s father and by M.F. She alleges the CPW Fletcher did not conduct a proper investigation. She is the one who called the domestic violence unit several times for help. She claims having been victim of a malicious prosecution by N.’s father, Ottawa CAS and the judicial system, as well as the Cornwall Police.
[60] She indicates that the children were not going to school because R.M.’s home is four houses down, and they were afraid they would be taken like N. She also indicates they did not attend school because of the head lice.
[61] She states that the reason the children do not leave their room is because of B.C.V.’s head lice. They do not go downstairs because it smells like cat urine due to the cat spraying the walls.
[62] She agrees that her son H. is autistic, as is B.C.V. Her evidence is she has custody of H., but he sleeps at the maternal grandmother’s home.
[63] With regard to M.F., the Mother alleges that he failed to comply with the motion he brought to court on April 23, 2019. A Court order provided him dates for access with B.C.V. and Z.F., but the last time the girls saw their father was October 2019 at Z.F.’s birthday party. Since they have not seen or heard from him, they did not receive money or gifts at Christmas. Instead, he called the police on the Mother to have her stop calling him over child support owed by him. He did not even bother checking in on the girls once Covid hit. She had to call M.F.’s mother to have M.F. contact them. There are very few phone calls made by him, and usually it is only following prompting. Z.F. spends countless days crying about not seeing or talking to her father, which is hard to see, especially due to the pandemic.
[64] She has been clean since July 11, 2011, apart from occasionally smoking marijuana. She has taken anger management.
[65] She is working with victims’ services to provide a safety plan for her and the children and is in contact with her ASAP worker regarding ongoing trauma by N.’s father.
[66] She provides text messages about her finances and the financial effect on her with the children being outside of her care. The text messages, and the Mother’s evidence, is that it is detrimental to a child’s development to be outside of her care because they think they did something wrong or bad to end up in foster care. She indicates that they told her they were sorry, that they think they are being punished, that they are bad, and that they are not loved. She has been with them all for their entire lives, and this is very hard on them.
[67] The Mother provides a letter regarding Special Services at Home (SSAH) through the Ministry of Children, Community and Social Services, which confirms funding for B.C.V.
[68] The Mother also relies on the May 10, 2021 letter from Inspire Community Support Services, which confirms their involvement with B.C.V. and the level of services provided to her, such as in-home respite support/programming for B.C.V. The Mother advised Inspire that she wished to pursue a different respite programming service, and was referred to Sparks Lifecare. According to her affidavit, Sparks is able to provide respite service five days per week for B.C.V. She also has a night nanny who will assist.
[69] She provides a snippet of the Ontario Human Rights Code, and the mandated protection from discrimination.
[70] The Mother’s evidence was that she was going to cooperate with the Society if CPW Fletcher was removed from the file. She is a victim of domestic violence and therefore she does not work well with a man.
[71] She indicated in October 2020 she had a mental breakdown, where she went five days without any sleep. At that time, the CAS did not intervene to take the children away from her.
[72] She cites information taken from online sites or textbooks on how to handle harassment from a co-parent, what the test is for best interest pursuant to the Children’s Law Reform Act, how to manage anxiety in children with autism, information about Ontario’s child welfare system, etc. The Mother provides CPIN disclosure from the Society which pre-dates 2021.
[73] The Mother addresses relief sought in the family court file, including permission to obtain a passport, custody and child support. While not before me, where relevant to these proceedings, I have considered the Mother’s position and assertions.
[74] The Mother indicates that with everything the Society has said, she is not even going to dignify it with a response because she does not need to.
[75] Ultimately, the Mother’s position is that just because she has a disorder does not mean that she cannot raise her children. I agree that mental health issues do not prevent someone from being able to raise their children. However, the children’s right to be protected from harm or risk of harm is the issue for today’s court appearance.
[76] The Mother asks that the Society’s Application be dismissed, and the children be returned to her care. She agrees to work with the Society for 2 months, who may stop in any time. She indicates that the warrants were not produced, that the Society did not know her mother’s address, did not walk through her home, and failed to follow proper mandated rules.
[77] She is also seeking $500,000 for pain and suffering, and requests “a cease and desist document to be made that unless [she] is present in a court room with [CAS] prior to any new opening to see if it’s deemed fit or more harassment.”
[78] She indicates that she has a civil lawsuit against the CAS, and one will be commenced against the Cornwall police and the “Supreme Court of Justice Ontario”.
[79] M.F. is not presenting a request for the placement of the children in his immediate care, he has provided evidence in response to the Mother’s allegations. He is opposed to the children being returned to the Mother’s care. He indicates that his access was suppressed by the Mother to the children, so he had no idea what was going with their care while in the Mother’s home.
[80] M.F. denies any allegations of domestic violence. He was never arrested or charged. Due to false accusations made by the Mother against him, he contacted the police and had her removed from his home.
[81] When he speaks to the girls in the foster home, they are happy, healthy and active. He ultimately wants the girls placed in his care, but wishes to work with the Society for a slow reintegration to occur.
[82] On the evidence which I find credible and trustworthy in the circumstances, I have no difficulty in finding that the Society has met the first part of the two-part tests to keep the children in care. There are reasonable grounds to believe that there is a risk that, if the children are returned to the Mother, that the children are likely to suffer physical or emotional harm.
[83] I accept that the Mother loves the children with all of her heart. However, I have legitimate concerns about her behaviour, her ability to meet the children’s needs, and the children not being seen in the community.
[84] I have also considered the children’s views and wishes as articulated by the OCL, the Mother and by the Society. I have considered the Mother’s evidence that the children cry every time they see her or speak to her, and that they think they were bad and they have now lost everything.
[85] I have considered that the Mother is prepared to allow the Cornwall Society to conduct a two-month investigation provided the children are returned to her care. She states they can stop by any day of the week.
[86] At the hearing, the Mother stated “so what, I barricaded myself in the house. What did they expect, here you go, take my kids? I am suing them because of the turmoil they put me through.” What the Mother fails to recognize is the trauma and turmoil she put the children through by her own actions at the time of the taking to place of safety and since at least March 2021.
[87] I accept the Society’s evidence, despite the Mother disputing same, that the children were exposed to the incident at the first attempt to take them to a place of safety. I accept that there were latches on the children’s door. I accept that the children are vulnerable and were not visible in the community. I accept that the Mother was struggling to manage the children’s needs, and her escalating behaviours puts them at risk of harm.
[88] I accept that the Mother refused to cooperate with the Society, which by working voluntarily with them would have likely staved off more intrusive measures.
[89] I find that supervision terms would be inadequate to protect the children if they were placed in the temporary care of the Mother. In the circumstances, when the Society attempted to address the concerns, and later when they tried to take the children to a place of safety, the Mother refused to cooperate or allow the police or the workers in the home despite a warrant.
[90] Based on the evidence that I have before me, I am concerned that the Mother will not abide by any conditions provided for in a supervision order.
[91] The denial of the Mother’s request leads me to the next step, to determine whether it is in the children’s best interest to make an order placing them in the care and custody of a relative or a member of the children’s extended family or community. At this time, no such plan is offered.
[92] Based on the foregoing, I find that the least disruptive placement for these children at this time is continued placement in care.
[93] This is also the placement that is consistent with the children’s best interests, having regard to the factors set out in section 74 CYFSA.
Access
[94] I turn now to the issue of interim access, which is governed by s.94(8) CYFSA, which states that an order made under clause 94(2)(c) or (d) CYFSA may contain provisions regarding any person’s right of access to the child on such terms and conditions the Court considers appropriate.
[95] In determining what order is appropriate, the Court should consider the paramount purpose of the Act, being the best interests, protection and well-being of children and the secondary purposes of maintaining the integrity of the family unit, assisting families in caring for their children and recognizing the least disruptive action consistent with the best interests of the children (subsections 1 (1) and (2) of the Act). In assessing best interests, the Court should consider the relevant factors set out in subsection 74 (3) of the Act: [Jewish Family and Child Services of Greater Toronto v. S.(H.B.),[2012] O.J. No. 5055 (Ont. C.J.)]; Children’s Aid Society of Oxford County v. C.O., 2020 ONCJ 400, at para. 15.
[96] The Society’s position is that access should be at their discretion, with the Mother having access with the children a minimum of twice per week. However, should the Mother miss four access visits in a two-week period without reasonable excuse, access frequency shall revert to the Society’s discretion.
[97] The Society’s position with regard to the Father’s access is to also have it at the discretion of the Society.
[98] The Mother wishes the children to be immediately returned to her care.
[99] I have considered the evidence presented with regard to the children’s views and wishes as set out above and within the materials filed by the parties. I have considered that based on the OCL representations, the children are happy seeing their Mother twice per week, seeing their siblings, and seeing their Father.
[100] The Mother has always been a central part of these children’s lives. I find that it is important for her to continue to be a constant part of their lives.
[101] The evidence informs the Court that it is in the children’s best interest to increase the Mother’s access as she continues to engage in services. At this stage, I find the Society’s proposal regarding access is acceptable. I find that discretion is required to permit a trajectory to be built and complied with as the Mother continues to make gains.
[102] As for the Father, I again agree that discretion is required for the Society to be able to properly assess his plan.
[103] Ultimately, I am persuaded that access to the children should be at the discretion of the Society.
Disposition
[104] Therefore, temporary order to go as follows:
The claims for relief sought by the Mother which have no bearing on the temporary care and custody hearing are disregarded. The order sought by the Mother for the return of the children is dismissed without prejudice.
B.C.V. and Z.F. are placed in the temporary care and custody of the Society pursuant to subsection 94(2)(d) of the CYFSA.
The Mother shall have access to the children at the discretion of the Society or its delegate. The Society shall have discretion with respect to location, duration, level of supervision and supervisor. The Mother shall have access with the children a minimum of twice per week. Should the Mother miss four access visits in a two-week period without reasonable excuse, access frequency shall revert to the Society’s discretion.
The Father shall have access to the children, B.C.V. and Z.F., at the discretion of the Society.
The children shall have access to their siblings, H.M. and N.M., as arranged by the Society and the siblings’ caregivers. Access may be virtual.
Madam Justice Hélène C. Desormeau
Released: June 15, 2021