The Children’s Aid Society of the Niagara Region v. SG and ZL
COURT FILE NO.: 661/18
DATE: 2021-07-09
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
The Children’s Aid Society of the Niagara Region Applicant
– and –
SG and ZL -- and – AG -- and -- JL -- and – J-ML Respondents
COUNSEL: J. Farrer, Counsel, for the Applicant R. Bonin, Counsel, for the Respondents SG and ZL E. Gok, Counsel, for the Respondent AG
HEARD: March 15 – 26 and May 11, 2021
RESTRICTION ON PUBLICATION
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.
This judgment complies with this restriction so that it can be published.
Mr. Justice Robert B. Reid
DECISION ON STATUS REVIEW
Introduction:
[1] This matter involves a status review application pursuant to s. 114 of the Child, Youth and Family Services Act 2017[^1] (the "Act") by the Children’s Aid Society of the Niagara Region (the "Society") as to the order dated March 9, 2020. That order, made on consent, placed the child O in the care of O’s maternal grandmother. The order was for six months and was made subject to the supervision of the Society, with access to the parents as arranged by the Society and supervised in its discretion.
Family Constellation:
[2] SG (now known as SL) is the biological mother of O (born in early 2018) and of M (born in early 2019). SG is 24 years of age.
[3] ZL is the biological father of O and of M. He is also the biological father of X (born in fall 2013) from a previous relationship. ZL is 24 years of age.
[4] AG is the maternal grandmother of O.
[5] J-ML and JL are the paternal grandparents of O, M and X. They did not participate in the trial except that J-ML gave evidence supporting the position of the parents.
Positions of the parties:
[6] The initial position of the Society was that O should be placed in the custody of his maternal grandmother pursuant to s. 102 of the Act, subject to a supervised access plan for the parents. The application was amended dated December 21, 2020 based on the Society’s view of changes in the family’s dynamic to the effect that O should be placed with his paternal grandparents under a six-month supervision order with eventual reintegration of O into his parents’ care. By the time of the trial scheduling conference on February 8, 2021, the Society’s position had been revised again to that ultimately advanced at trial where it sought an order placing O in the care of his parents subject to Society supervision.
[7] The parents request a return of O to their care without supervision.
[8] The maternal grandmother requests an order that O be placed in her custody pursuant to s. 102 of the Act.
Statutory findings:
[9] By the order of Justice W. MacPherson dated November 20, 2019, on consent, statutory findings were made.
[10] There is no need to revisit the findings including the protection finding for the purposes of this decision with one exception.
[11] The order of Justice MacPherson found that O was not of First Nations, Métis or Inuit heritage. However, the evidence at trial was that SG has a First Nations background. Growing up, she was told of her Indigenous heritage and that her father lived on the Garden River First Nation reserve. She tried unsuccessfully to discover his band membership. There was no evidence to the contrary. I accept that evidence and find that O is of First Nations heritage with no identified band.
Background:
[12] It is important to understand the family history of the parties, especially because the initial protection findings and the risk of future harm to O relate primarily to the parents’ interactions with X in August 2018, and the potential for similar behavior directed by the parents toward O.
[13] As noted, ZL is the biological father of X from a previous relationship. X has been diagnosed with attention deficit/hyperactivity disorder. ZL has sole custody of X, although X is also the subject of an outstanding protection application by the Society. X’s mother has maintained contact through access visits.
[14] ZL and SG (the "parents") began dating in 2016. ZL and X had been living at ZL’s parents’ home and SG had been living at her mother’s home with three other siblings, who were approximately 16, 18, and 19 years of age at the time. In July 2018, ZL and SG decided to live together. Pending a search for independent accommodations, ZL and X moved into the home of AG with SG and her siblings.
[15] On August 2, 2018, concerns were reported to the Society by both the paternal grandfather and the maternal grandmother about SG’s behavior towards X including discipline through the use of physical force. Between August 11 and 15, 2018 incidents occurred at the home of the maternal grandmother involving the parents and X. The events were recorded on a nanny-cam video by the maternal grandmother in X’s bedroom. The details of the events were admitted by the parents at trial and are referred to below. As a result, the parents were requested by the Society to voluntarily vacate the home and leave O and X with the maternal grandmother. They did so. At the time, X was approaching five years of age and O was about eight months old. The parents had access visits with O and X under the supervision of the maternal grandmother.
[16] On September 6, 2018, SG was arrested and charged with aggravated assault based on the evidence disclosed in the videos. Her terms of release dated September 10, 2018 were that she was required to live with a friend who was her surety and she was prohibited from contact or communication with X and prohibited from being a caregiver of a person under the age of 16 years. She was to have access to her child or children as permitted by any family court order dated after September 10, 2018.
[17] O continued to reside with the maternal grandmother. X was moved to the home of the paternal grandparents on September 17, 2018 at the request of ZL.
[18] On October 17, 2018, the parents revoked their consent to placement of O and X with grandparents and as a result, on October 17, 2018, the children were removed from the parents’ care by the Society. X remained in the care of the paternal grandparents and O was removed from the home of the maternal grandmother to a foster home since the maternal grandmother had not been assessed as a designated place of safety by the Society. On October 22, 2018, by court order, X was formally placed in the temporary care and custody of the paternal grandparents and O was formally placed back into the temporary care and custody of the maternal grandmother. The two children have remained in those kinship placements to the date of trial.
[19] M was born in February 2019. Following his birth, he was placed in the care of a family friend and then by order dated October 26, 2020 was placed in the temporary care of the paternal grandparents. By order dated February 16, 2021, M was placed in the temporary care of the parents subject to Society supervision.
[20] On September 17, 2019, SG pleaded guilty to assault under s. 266 of the Criminal Code. She received a one-year conditional sentence pursuant to which she was to live under house arrest in the home of a friend followed by three years probation. The terms of probation prohibited contact with X, M, or O, except pursuant to a family court order or with the written permission of the Society. She was not to be a caregiver for any person under the age of 16 and was required to attend and actively participate in such assessments, counselling or rehabilitative programs as might be directed by the probation officer including parenting, psychiatric or psychological issues, life skills and any other issues as identified by the probation officer. The house arrest ended in September 2020.
[21] In October 2019, during her period of house arrest, SG married ZL. Since the end of the house arrest, they have lived together in stable supportive housing provided under the auspices of Bethlehem Housing and Support Services. Currently, they occupy a three-bedroom apartment which is suitable for themselves as well as O and M.
[22] The parents have had supervised access to O which increased over time from once per week to three to four times per week, and then to six times per week. As of January 24, 2021, they have had unsupervised access seven times per week.
[23] The parents had access to M four times per week. As of October 2020 when M moved to the paternal grandparents, the parents saw M on a daily basis. That continued until February 16, 2021 when the parents received an order for temporary care of M. Before October 2020, access was arranged so that M and O could be together on Fridays. From February 16, 2021, there has been frequent contact between M and O during access visits.
Circumstances leading to original protection concerns:
[24] The nanny-cam videos made between August 11 and August 15, 2018 by the maternal grandmother were provided by her to the Society and to the Niagara Regional Police.
[25] The content of the videos was described in detail in the affidavit of child protection worker Michelle Menhennet as part of Exhibit 1. They showed both parents yelling and screaming at X, repeatedly directing him back to his room or onto his bed over the course of several hours. The parents could be seen using threats and belittling language. Lengthy "timeouts" were given to X during which he was not permitted to leave his room.
[26] SG was shown using an accelerated countdown system within which X was to follow her directions, but without allowing a reasonable time for compliance. Various consequences for misbehavior were threatened including forbidding sleepovers with the paternal grandparents and sleeping outside.
[27] SG was observed on one occasion to grab X by the head and face and lift him off the floor, then to throw him onto the top bunk of the bed. On another occasion, SG was observed to grab X by the foot and ankle and pull him roughly as he resisted coming off the bed. There were multiple times where X was handled roughly and, based on his reaction, physically hurt by SG.
[28] ZL was at least complicit in the behavior of SG in that he did not intervene and on occasions screamed at X and refused X’s requests to be tucked into bed. These actions appear to have been forms of discipline for failures by X to follow his parents’ directions.
[29] The videos did not show any tenderness or offer of emotional support by the parents to O.
[30] In all, there were 58 video clips which were provided by the maternal grandmother.
[31] The content of the videos, as well as the observations of the paternal grandfather and maternal grandmother showed serious abusive behavior by SG and the lack of a protective response by ZL. The evidence was sufficient to support the removal of X from his parents and for the temporary care and custody order of October 22, 2018. They were also reviewed in the Ontario Court of Justice and were relied on in SG’s assault conviction and sentencing on September 17, 2019.
The Law:
[32] In this status review application, s. 114 of the Act mandates that the court consider the available options based on the child’s best interests. This is consistent with the paramount purpose of the Act set out in s. 1(1) which is "to promote the best interests, protection and well-being of children". "Best interests" are defined in s. 74(3) of the Act.
[33] It is not necessary for me to review the original order, for example as to the protection findings, since it is assumed to be correct. However, as determined by the Supreme Court of Canada in Catholic Children’s Aid Society of Metropolitan Toronto v. M. (C.), 1994 CanLII 83 (SCC), [1994] 2 SCR 165, the court on a status review application must determine whether there is a need for an order for protection for the future based on the evolving circumstances including the child’s needs. On a status review, the court can consider whether the grounds which prompted the original order (in this case dated March 9, 2020) still exist and whether the child continues to be in need of state protection. The Supreme Court went on to say at page 168 that:
A twofold examination must be undertaken on a status review. The first is concerned with whether the child continues to be in need of protection and, as a consequence, requires a court order for his or her protection. Regardless of the conclusion reached at this first stage, the need for continued protection encompasses more than the examination of the events that triggered the intervention of the state in the first place. The court must look at the child’s best interests. This flexible approach is in line with the objectives of the Act, as it seeks to balance the best interests of children with the need to prevent indeterminate state intervention, while at the same time recognizing that the best interests of the child must always prevail. In determining what is in the child’s best interest, the Act provides extensive guidance. Notwithstanding the specific provisions of the Act, however, traditional discussions with respect to best interests remain highly relevant. The wide focus of the best interests test encompasses an examination of the entirety of the situation and thus includes concerns arising from emotional harm, psychological bonding and the child’s desires, which the Act contemplates as well.
[34] The Supreme Court required that the factors relating to the need for protection as defined by s.74(2) of the Act be considered in a broader context which could include protection from the emotional harm arising from removing the child from caregivers to whom the child has become attached.
[35] If in all the circumstances the child is found to be in need of protection, the court must decide which of the available range of orders under ss. 101 or 102 of the Act is most appropriate in the child’s best interest.
Analysis:
[36] Despite the 11-day duration of the trial, there was little disagreement about much of the evidence. The appropriate implications to be drawn from the evidence was where the parties significantly parted company.
[37] In broad terms, the two options presented to the court for consideration were: (a) a return of O to his parents, with or without Society involvement, or (b) custody of O to the maternal grandmother.
[38] Stability and the continuity of O’s care support the position of the maternal grandmother. O has lived in her home since the summer of 2018 to date and under her care since September 2018. That period is a significant portion of O’s life.
[39] The maternal grandmother is acknowledged by the Society to be an appropriate caregiver for O and there can be no doubt that some disruption will occur if O’s residence is changed to that of his parents as both the Society and the parents request.
[40] The maternal grandmother is very skeptical of the parents’ ability to care for O. This is understandable based on her initial observations of the parents’ involvement with X. She has concerns that a continuing risk of such conduct exists as to O because, despite the apparent best intentions of the parents, to quote the maternal grandmother, "no one can see what goes on behind closed doors". In effect, she does not trust that the parents have made sufficient changes in their lives to mitigate the risk that O will suffer physical and psychological harm.
[41] The maternal grandmother has been very quick to report any possible concerns to the Society and has frequently taken O for medical examinations in response to minor bruising or other issues. None of the bruising or other physical health issues caused concern for the Society or the medical professionals involved. AG was very critical of the fact that on one occasion in January 2020, ZL neglected to administer one dose of an inhaler medication which is typically taken by O on a regular basis. I do not find that a single missed dose is a significant indicator of poor parenting. On another occasion, AG went so far as to make a video of O when he retreated under a table, resisting a transfer to the parents for a scheduled access visit. It is not at all unusual for a young child to find transitions between caregivers to be difficult. This is not necessarily a sign of poor parenting on the part of the receiving caregiver. The parents testified that similar behaviour was exhibited when O transferred back to AG. Regardless of her motivation, AG’s hypervigilance is troubling.
[42] My assessment of those actions on the part of the maternal grandmother, in total, leads me to conclude that there is a significant risk that AG would not foster a healthy ongoing relationship between O, his parents and his siblings if O continues in her care. As such, there is a risk of emotional harm arising from the potential for future conflict between the parents and AG.
[43] It was suggested on behalf of the parents that the maternal grandmother has a financial motive for her request that O remain living with her as regards the receipt of child tax benefits or in order to justify her continued occupation of a multi-bedroom subsidized housing unit. On the evidence, I do not attribute those ulterior motives to the maternal grandmother and note that her initial, well-justified concerns about the parents’ treatment of X in or about August 2018 were supported by the paternal grandfather as well as by the video evidence.
[44] The proposal by the Society and that of the parents to relocate O to the parents would be initially disruptive. As noted, however, substantial time has been spent by O with the parents and M for many months over many hundreds of hours and therefore any change would not be to an unknown situation. In addition, the evidence was clear that O enjoys the company of his parents and of M and looks forward to their being physically together.
[45] I accept the evidence of the parents and other witnesses that they appear to have a strong bond with O and that during the duration of the current order under review, have been parenting appropriately, using non-physical discipline.
[46] SG, who identified as having First Nations ancestry, has been involved in Native cultural activities with O and is supported by members of the Indigenous community including a child and family advocate who testified at trial. SG gave evidence that Indigenous heritage is important to her and that it should be shared with her children. Although the maternal grandmother was not opposed to connecting O with his Indigenous background, she was not a strong supporter of that aspect of O’s heritage.
[47] The most significant potential risk to placement of O with his parents relates back to the initial protection concerns for X and the possibility of recurrence as regards O.
[48] At trial, the content of the August 2018 video clips was described and reviewed with the parents in detail. They acknowledged and accepted the impropriety of their conduct as regards X. Neither of them attempted to minimize the concerns. ZL testified that, on reflection, he was "disgusted" by his inappropriate behavior in disciplining X and failing to intervene on his behalf. He described in detail how he behaves differently now. SG echoed those comments and called her behavior very inappropriate and disturbing. She reflected on how ineffective her parenting had been as regards X and how different her behavior is today as a parent. All the evidence of recent interactions between the parents and O including their parenting techniques as observed by Society workers was positive. The parents have demonstrated a loving and playful relationship with no sign of physical discipline.
[49] Although SG has a diploma in early childhood education, it appears that she and ZL misunderstood or misapplied parenting techniques that they had been taught prior to August 2018. As well, they appear not to have recognized X’s ADHD and the impact of that condition on his behavior.
[50] Both gave extensive evidence about the various parenting courses they have taken since August 2018 including Anger Solutions, The Good Grief Group, Triple P Online Positive Parenting Program, Strengthening Families for the Future Program, Caring Dads, Road to Empowerment, Mindfulness, and Childhood Trauma: Finding a Way Through. Beyond attending and completing recommended programs, they accessed additional programs and materials found online. In testimony, they were able to articulate principles learned through the various programs and to demonstrate how they apply those techniques in parenting their children. Having acknowledged the seriousness of the initial conduct on their part, it is hard to imagine how they could have done more to educate and redirect themselves toward better outcomes.
[51] Tom Anderson, an outreach worker from the Niagara Falls Community Help Center testified to his experience with the parents through various courses in which they participated. He felt that they grasped and adopted the concepts taught. He observed interactions between the parents and O in a social setting over meals and saw no cause for concern.
[52] In addition to the course work to which I have referred, SG attended a series of about 24 counselling sessions with John McLachlan, a highly experienced family counsellor, working through the Society’s Family Counselling Centre between November 2019 and December 2020. He testified that she worked hard in the sessions and showed insight into the Society’s protection concerns. She was able to articulate to him what she would do differently as a parent based on her subsequent learning. His expertise and experience led him to opine that she was honest and sincere in her acceptance of responsibility and in her determination to behave differently in the future.
[53] I was impressed by the parents’ evidence about the efforts they have made to be more effective caregivers for their children including O based on what they have learned about themselves and about proper parenting techniques. All the evidence of their involvement with their children of recent date confirms that significant changes have been made since the events of August 2018.
[54] Regardless of how successful the parents appear to have been in moving forward from the problems of August 2018, it is difficult to understand how that serious situation could have occurred in the first place. As a result, it is not possible to be assured that risks have been fully mitigated.
Conclusion:
[55] In keeping with the paramount purpose of the Act, the best interests of O must be the main focus of this decision.
[56] Moving O into the care and custody of his parents will support the autonomy and integrity of the family unit, especially in that O will be in the regular company of his brother M and have opportunity to interact with his half-brother X.
[57] Similarly, O’s connection with his Indigenous heritage will be preserved if he lives with his parents, based on their commitment to maintain and enhance that connection.
[58] The extensive contact that has been occurring between O and his parents and siblings will minimize the disruption of continuity to him that will inevitably occur with a change of residence.
[59] It is desirable that O not lose his connection with AG who has been a significant presence during most of his short life. In my view, there will be more chance for O to continue to have a positive relationship with AG facilitated by the parents than vice versa, based on the ongoing and unabated hypervigilance that I have identified on the part of AG.
[60] The parents are to be commended for the significant demonstrated efforts made by them to change their parenting behaviors from those that existed in August 2018. However, those behaviors, albeit directed toward X not O, were serious and have not been conclusively explained such that there is no risk to O. There is a continuing need for protection for O even though the risk of harm has been minimized. The supervision of the Society is needed to further mitigate the risk. It may well be that the need for Society involvement will disappear over time as the parents demonstrate their ongoing ability to parent their children appropriately.
[61] Based on the foregoing, there will be an order as follows:
a. That the child O be returned to ZL and SG, subject to the supervision of the Society, for a period of six months, with liberal access by AG to the child as arranged by the Society and supervised in its discretion.
b. That ZL and SG shall permit Society workers to attend at their home on a scheduled and unscheduled basis.
c. That ZL and SG shall allow Society workers to meet with the child privately.
d. That ZL and SG shall sign releases of information permitting the Society to exchange information with service providers for themselves and the child, as requested by the Society.
e. That ZL and SG shall ensure that the child attends regular doctor and dentist appointments and shall follow the doctors’ and dentists’ recommendations.
f. That ZL and SG participate in any support services or programs recommended by the Society.
Reid J.
Released: July 9, 2021