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-14-1823-8
DATE: 2021/07/28
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 B.K.R. (DOB: […], 2015)
BETWEEN:
The Children’s Aid Society of Ottawa
Applicant
– and –
N.K. (Mother)
R.R. (Father)
Respondents
Victoria Dada, for the Applicant
Kristen Robins, for the Respondent Mother
Cedric Nahum, for the Respondent Father
HEARD: July 22, 2021
endorsement
engelking J.
[1] This is a C & C hearing with respect to the child, B.K.R., born on […], 2015.
[2] B. was brought to a place of safety on February 1, 2021. Prior to the intervention by the Children’s Aid Society (the “Society”), she was in the shared care of her parents on a 50/50 basis.
[3] On April 1, 2021, Justice Blishen granted a without prejudice order on consent placing B. in the care and custody of her mother, N.K., as of May 13, 2021, with access to her father, R.R. at the discretion of the Society with a minimum of twice weekly. An integration schedule into the care of Ms. K. was included in the order. B. has now been in the full-time care of Ms. K. since May 13, 2021.
[4] Mr. R. seeks an order today reinstating the 50/50 parenting regime that was in place at the time of the Society’s intervention without the necessity of Society supervision. Both Ms. K. and the Society oppose this. They seek simply to confirm Justice Blishen’s care and custody order on a with prejudice basis.
[5] Subsection 94(2) of the CYFSA provides 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, or open or secure custody.
[6] Ms. K. and Mr. R. clearly “had charge of the child immediately before the intervention under this part”.
[7] Subsection 94(4) of the Act provides: “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 the child cannot be protected adequately by an order under clause (2) (a) or (b).”
[8] On this motion, the Society and the mother seek an order returning B. to the care of one of the people who had charge of her at the time of the Society’s intervention, in other words, an order under subsection 94(2)(b). Mr. R. seeks an order under subsection 94(2)(a). Given that no order is sought under subsections 94(2)(c) or (d), the test set out in subsection 94(4) does not apply. The court has already determined that B. can be adequately protected under a supervision order, albeit on a without prejudice basis.
[9] No test is articulated in the CYFSA under subsections 94(2) (a) and (b); thus, I am of the view that the court can make a supervisory order so long as it supports the primary and secondary objectives of the Act as set out in section 1 and is the least disruptive order. I am satisfied by the evidence before me that the least disruptive order under the circumstances, which promotes the best interests, protection and well-being of B., is the order requested by the Society and the mother.[^1] Pursuant to subsection 94(6) of the CYFSA and Children’s Aid Society of Toronto v. T.-J.M., 2010 ONCJ 701, I must satisfy myself that the terms and conditions requested are reasonable. I am so satisfied.
[10] My reason for this is that there remain several concerns regarding Mr. R.
[11] The most significant is the allegation that Mr. R. is using and/or selling drugs from his apartment. Mr. R. adamantly denies that to be the case. He dismisses reports from one of his neighbors, Ms. C.L., as her having it out for him or them simply not getting along. He also dismisses or minimizes B.’s stated concerns about the people frequenting his apartment.
[12] The problem with Mr. R.’s position is that his blanket denial does not account for the numerous reports which have been made to the Society from various sources, including B., about this concern. They are as follows:
October of 2020, the Society was made aware (possibly by Ms. K.) of concerns related to Mr. R.’s drug use and selling of drugs, which it did not verify;
January 4, 2021, the Society receives a report from Ottawa Community Housing with concerns of possible drug sales occurring in the apartment of Mr. R. with B. present. Ten people were reported to attend his unit on that day, with several other people loitering in the stairwell or the floor of his apartment;
January 5, 2021, Child Protection Worker (“CPW”) Arkorful attends Mr. R.’s apartment and encounters a man named “James.”, who tells her Mr. R. is allowing him to stay there;
On January 8, 2021, CPW Gionet witnessed two people, a male and a female who were described to her by another (male) tenant at the apartment building as “druggies” and homeless, attend Mr. R.’s unit;
January 27, 2021, CPW Gionet received information from a CPW for a child of a Mr. James S., who was referred to as a known drug dealer with extensive police involvement, that Mr. S. was living with Mr. R.;
January 28, 2021, in a private interview with CPW Gionet, B., who is almost six, shared that she does not like when her father’s friends are over because they break things, they steal stuff and make a lot of noise. She also shared that she has asked her father to stop having friends over, but he did not, and that they make a lot of noise when she goes to bed, which does not stop even when she tells them to “shhhhh”;
January 28, 2021, CPW Gionet receives an email from Ottawa Police Constable Raymond Tucker-Peel advising her that the police received two complaints from residents at the apartment building “regarding high levels of traffic to apartment 309”, including that residents are rung at all hours by people seeking entrance to the building and that drugs are being consumed in the stairwell. Police Occurrence Report numbers of 20-817434 from November of 2020 and 21-21064 from January 27, 2021 were provided;
February 23, 2021, B. spoke to her father in the presence of the access supervisor, Jennifer Campbell, about friends Mr. R. had in the home and how she dislikes them. B. made statements such as that Mr. R. should make new friends and “replace all the bad people”, “I told you not [sic] have friends like that and you didn’t listen to me one bit” and yelled “CALL THE COPS ON THEM…sore losers.” B. also spoke about Mr. R.’s friends stealing to which he responded: “sometimes it gets rowdy, but everyone fights sometimes…what do you expect from a bunch of boys?”;
February 24, 2021, Mr. R. admitted to CPW Said that “there is traffic in his apartment but denied using drugs”;
April 29, 2021, Ms. K. advises CPW Said that Mr. R. struggled with addiction and was selling drugs and providing diluted urine samples for tests when they lived together;
May 15, 2021, CPW Said receives a report from C.L. that a number of adults and children were living with Mr. R., that there is a lot of traffic with heavy drugs and that Mr. R. threatened to kill her 30 minutes before and he continues to sell drugs. Ms. L. provided CPW Said with a Police Occurrence Report #21-121799;
May 17, 2021, Ms. K. advises CPW Said that when she and Mr. R. lived together, he crushed pills to use in a syringe and inject into his arm;
May 18, 2021, B. asks Ms. C. why Mr. R. sleeps so much and shares that he may be tired from having lots of people at his house;
May 28, 2021, Mr. R. states to CPW Said that he recently had “dirty drug screens” as he had used speed (amphetamines);
June 1, 2021, a neighbor of Mr. R. calls CPW Said to advise that someone C.G. was released from jail and is living with Mr. R.;
June 16, 2021, CPW Said had a private interview with B., from which he noted the following: “B. stated to me that people think she is afraid to go to her dad’s home and that she is “pretty sure that dad told I want to go to his house”. B. added that she is pretty sure that her dad misses her, that bad people are gone now that dad got rid of them and that they are not there anymore and she doesn’t know how. B. further added that dad has a girlfriend. B. referred to the persons frequenting her dad’s residence and said “they poo at his door”, that they left chicken bones and that police tried to arrest dad but he never did anything bad. B. stated that one window was broken by someone in dad’s house and there were a lot of people on the balcony. B. said dad’s place is safe now and that they [sic] already gone and that dad thinks things are going good”. B. said her wish is to go back to her dad’s as “bad people are gone”;
June 14, 2021, Mr. R. asks B. at an access visit if she is scared at his place, to which she replies “no”. Mr. R. then asks if she is nervous at his place with people there, to which she replies “yes”. B. talked about times when she was in bed and could hear people in the home and says that she will come over if he has no one over anymore. At the end of the visit, B. states to Mr. R.: “Bye Dad…don’t have any friends over ok? They just steal your stuff. Be careful!”; and,
July 5, 2021, B. states to Ms. Campbell., while walking to the car, that she likes visiting “here” (at the CAS) because none of Mr. R.’s friends are at the visit to bother them.
[13] Mr. R.’s answer to this is simply to deny that he is selling drugs from his apartment. Mr. R. states that the people who attend his apartment are friends who are there to watch UFC or play poker, notwithstanding that for much of the period referenced (and particularly when B. would have been in his care), Ottawa was in total lockdown due to the COVID-19 pandemic.
[14] Mr. R. states that James S. was not staying with him “when I had my daughter”, which contradicts other parts of his evidence, in which he states he had Br. in his care “24/7” after her mother was admitted to the hospital. He also indicated that Mr. G. did visit him when he was released from jail, but it was a very brief visit. His girlfriend and her daughter also visit from time to time, but do not live with him.
[15] Mr. R. states that he has nothing to do with people loitering in the halls of his apartment building or using drugs in the stairwell. He also states he is seeking new accommodations which are suitable to his and B.’s needs but cannot receive the necessary financial assistance from CMHA unless B. is in his care. In the same breath, Mr. R. states that his building is safe as several children live there, and that his apartment is sufficient for him and B.
[16] Mr. R. insists that Mr. Said’s concern is with traffic to his building, where, in fact, for all referents, Child Protections Workers and B., the concern is with traffic to his apartment specifically. If this is indeed indicative of Mr. R.’s lifestyle, whether or not he is selling drugs, a change of location will not fix it.
[17] Mr. R. also denies drug use, but for a relapse a few weeks before he swore his affidavit of June 2, 2021, when he had a slip and used one amphetamine pill. In that same affidavit at paragraph 49, Mr. R. states: “I had not used for several months before that”. He does not specify what he means by that or when, specifically, he last used prior to the admitted “slip”.
[18] Mr. R. admits to being an addict and states that he sees a doctor at Recovery Ottawa every week, and is to be starting a new program that only requires him to attend once a month. However, Mr. R. has refused to provide consent to CPW Said to receive any information from his doctor prior to May 31, 2021, or indeed, any information at all
[19] Whether or not Mr. R. is using drugs, frankly remains a question which is unanswered. As I have indicated above, Mr. R. admitted using an amphetamine on one occasion sometime shortly before June 2, 2021, and to last using some unspecified time months before that. Additionally, in a discussion with Ms. Campbell about an audio recording Mr. R. sent her, wherein she believed she heard a reference to fentanyl, Ms. Campbell reminded Mr. R. that he had told her sometime prior to July 13, 2021, that he had tested positive for cocaine and fentanyl. Despite this, he adamantly denies he is using drugs. As indicated, he refuses to permit CPW Said to communicate with his doctor.
[20] Ms. K., who is familiar with Mr. R.’s patterns and behaviors while using from when they lived together, fears that he is again abusing substances. While she admits to not having any personal contact with Mr. R., she indicated in her affidavit sworn on March 24, 2021, that she had “ongoing worries about Mr. R.’s sobriety due to information [she] was receiving from friend/acquaintances, and from the things that B. would say when she returned to my home.” She is of the view that it would not be safe to return B. to the care of Mr. R. at this time, though she does not oppose a return to a 50/50 schedule when it is safe to do so.
[21] There are other indicators which suggest Mr. R. may be struggling with sobriety. They are his inconsistency in attending visits or attending them on time, his preponderance to fall asleep during visits with B. and some of his indecipherable communications with the Society, particularly with Ms. Campbell.
[22] Ms. Campbell provided several examples in her affidavits of March 24, 2021, June 1, 2021, and July 19, 2021 of challenging, sometimes vulgar and ofttimes incomprehensible communications with Mr. R. Mr. R. blames the latter on dental work he had, and the fact that he uses voice recognition texting, which he asserts does not understand his speech. That may be the case, which Ms. Campbell acknowledges in paragraph 72 of her July 19, 2021 affidavit, for some of his communications, but possibly not all, particularly those in which he was swearing and disparaging Ms. K. and B.’s former foster parents.
[23] Ms. Campbell also observed Mr. R. to fall asleep during visits with B., sometimes while doing an activity such as reading, coloring or watching a movie. Her observations of this phenomenon are as follows:
February 25, 2021 – Mr. R. appeared to be falling asleep throughout the visit;
March 8, 2021 – Mr. R. fell asleep throughout the visit and B. had to wake him up;
March 12, 2021 – Mr. R. was observed to fall asleep while engaging with B., who called him repeatedly before he awoke;
March 19, 2021 – Mr. R. fell asleep throughout the visit, and on one occasion only awoke after Ms. Campbell loudly cued B. to get down from a bookshelf she climbed onto;
April 9, 2021 – Mr. R. appeared to fall asleep while doing activities with B., who repeatedly woke him up by telling him “No sleeping!”;
April 26, 2021 – Mr. R. fell asleep “often” during the visit, while engaging with activities with B.;
May 18, 2021 – Mr. R. appeared to nod off and B. often calls to wake him up;
June 28, 2021 – Mr. R. appeared to fall asleep during the visit;
July 5, 2021 – Mr. R. struggled to remain awake throughout the visit; and,
July 14, 2021 – Mr. R. struggled to remain alert in the visit and was often nodding off.
[24] Mr. R.’s response is, again, to simply deny this is happening. In his affidavit sworn on June 2, 2021, Mr. R. acknowledged that he did fall asleep “very briefly” at one visit due to a change of medication, stating that it has not been an issue since he changed the dosage. This is contrary to Ms. Campbell’s above-noted evidence, and frankly, I find it hard to comprehend why an access supervisor would note something he or she is observing in his or her observation reports if he or she is not observing it.
[25] Mr. R. also complained that the access visits are boring, being three hours in length at the Society. He submitted that Ms. Campbell does not like or permit his access to take place outside, which is also contrary to Ms. Campbell’s evidence. In her June 1, 2021 affidavit, Ms. Campbell indicated that she advised Mr. R. on April 7, 2021 of the time and date of the next scheduled visit and stated that she had reserved the park for two half hour slots. In paragraph 29 of the same affidavit, Ms. Campbell indicates that when Mr. R. complained of the environment at the agency on April 12, 2021, she asked what she could do to help, reminding him that she “brought him and B. many toys and activities and that [she has] continued to book them the playground.” On May 14, 2021, they took pictures outside with B. for Mr. R.’s birthday, and on June 28, 2021, she agreed to go outside briefly despite the heat warning. On July 16, 2021, they played outside in the park.
[26] Finally, Mr. R.’s attendance at access, in person and by phone, has been inconsistent. Mr. R. blames the Society for this, saying they change the times and/or do not remind him of visit dates and times. Mr. R. suffers from learning disabilities and ADHD which he states makes it difficult for him to keep things straight, especially if they are not on a consistent day and time. While this may be, Ms. Campbell’s affidavits are replete with her texting Mr. R. with reminders and/or confirmation of the dates and times for scheduled visits and phone calls, many of which were on consistent days and times. When a change was required, due, for example, to the agency not being open, B. and Mr. R. both requiring COVID-19 tests at different times and the foster home being in isolation, they were communicated to Mr. R., sometimes more than once. Mr. R. also reported losing his phone on one occasion, indicated he had no time on his phone, and asked for messages to be texted to his girlfriend’s phone, which Ms. Campbell did when asked.
[27] While Mr. R. may struggle with certain tasks, his approach, frankly, is to take no responsibility for anything that is occurring or problematic. Rather, he blames the Society, his neighbour, Ms. C.L., Ms. K. or even B. for the situation in which he finds himself. Mr. R.’s position that a five-year old child should not be in a position to dictate with whom he spends his time, moreover, ignores B.’s state of mind, and the fact that she has clearly expressed, including directly to him, that she does not feel comfortable, or perhaps even safe, at his home in the presence of those people whom she describes as his friends.
[28] The Society’s position, with which I agree, is that there will have to be improvements to Mr. R.’s attendance to and alertness at access before any changes can be made to it. Additionally, Mr. R. will need to permit CPW Said to speak to his doctor at Recovery Ottawa, so that the Society can satisfy itself that he is indeed “not using”. If Mr. R. does these things, a move of access to his home may be contemplatable. Once access does or can move to Mr. R.’s home, he will also have to commit to exercising it in the absence of any person not approved in advance by the Society.
[29] All parties should be working towards a resumption of the 50/50 parenting regime, but, based on all of the above, this is not the time for that to happen.
[30] There shall, therefore, be a with prejudice temporary care and custody order as per the Society’s Notice of Motion dated July 13, 2021.
Engelking J.
Released: July 28, 2021
COURT FILE NO.: FC-14-1823-8
DATE: 2021/07/28
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 B.K.R. (DOB: […], 2015)
BETWEEN:
The Children’s Aid Society of Ottawa
Applicant
– and –
N.K. (Mother)
R.R. (Father)
Respondents
Endorsement
Engelking J.
Released: July 28, 2021
[^1]: See Children’s Aid Society of Toronto v. M. (D.), 2003 CanLII 64412 (ON CJ), [2003] O.J. No. 1947, 37 R. F.L. (5th) 280 (Ont. C.J.) on a variation