COURT FILE NO.: FC-21-166

DATE: 2021/10/15

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.

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Family and Children’s Services of Renfrew County, Applicant

AND:

M.D., Respondent

BEFORE: The Honourable Justice M. Fraser

COUNSEL: Lauren Blanchet, Counsel for the Applicant

Therese Ferri, Counsel, for the Respondent

HEARD: October 13, 2021

ENDORSEMENT

[1] The Applicant (the “Society”) has brought a motion seeking an order that P.M.D., born […], 2021 (the “child”) be placed in the temporary care and custody of the Society, with access to the Respondent (the “mother”) being in the discretion of the Society.

[2] The mother opposes the society’s motion and seeks an order returning the child to her care pursuant to the supervision of the Society.

Legal considerations on temporary care and custody motion:

[3] The legal test for me to apply on this motion is set out in subsections 94 (2), (4), (5) and (6) of the Child, Youth and Family Services Act (the “Act”) that reads as follows:

Custody during adjournment

94(2) 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.

Criteria

(4) 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).

Placement with relative, etc.

(5) 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.

Terms and conditions in order

(6) A temporary order for care and custody of a child under clause (2) (b) or (c) may impose,

(a) reasonable terms and conditions relating to the child's care and supervision;

(b) reasonable terms and conditions on the child's parent, the person who will have care and custody of the child under the order, the child and any other person, other than a foster parent, who is putting forward a plan or who would participate in a plan for care and custody of or access to the child; and

(c) reasonable terms and conditions on the society that will supervise the placement, but shall not require the society to provide financial assistance or to purchase any goods or services.

[4] 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 respondents, it is more probable than not that he or she will suffer harm. The onus is on the Society to establish that the child cannot be adequately protected by terms of conditions of an interim supervision order. (See: Children's Aid Society of Ottawa-Carleton v. T. 2000 CanLII 21157 (ON SC), [2000] O.J. No. 2273 (Ont. Sup. Ct.)). Simply stated, this is a two-part test that the Society must meet.

[5] A court must choose the order that is the least disruptive placement consistent with adequate protection of the child (subsection 1(2) of the Act). (see: Children's Aid Society of Hamilton v. B.D. and F.T.M., 2012 ONSC 2448).

[6] 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. (See: CCAS of Toronto v. J.O.1, 2012 ONCJ 269).

[7] Subsection 94 (10) of the Act permits the court to admit and act on evidence that the court considers credible and trustworthy in the circumstance. 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: Family and Children's Service v. R.O., [2006] O.J. No. 969 (OCJ)).

[8] Section 93 of the Act permits the court to consider the past conduct of the person toward any child if that person is caring for or has access to or may care for or have access to a child who is the subject of the proceeding. Specifically, subsection 93(2) of the Act provides that any oral or written statement or report that the court considers relevant to the proceeding, including a transcript, exhibit or finding or the reasons for a decision in an earlier proceeding is admissible into evidence.

[9] Finally, 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. (See: L.D. v. Durham Children’s Aid Society and R.L. and M.L., 2005 CanLII 63827, 21 R.F.L. (6th) 252, [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. (See: CCAS of Toronto v. M.L.R. 2011 ONCJ 652).

[10] In making this determination I considered the following evidence:

a) Affidavit of Amanda Manning sworn June 11, 2021;

b) Affidavit of Kathy Thomas sworn June 10, 2021;

c) Affidavit of Kathy Thomas sworn September 24, 2021; and

d) Affidavit of the mother sworn August 3, 2021.

[11] The mother had been residing in Chalk River with her father and stepmother until she moved to Cardiff, Ontario with her boyfriend, LP. on July 13, 2021.

[12] The mother has been in a relationship with L.P. for approximately one year. He is not the biological father of the child.

[13] The mother has an older daughter, T.A. born […], 2002. T.A. was removed from the mother’s care when T.A. was 15 years old, in the Niagara region over neglect concerns, transience and an unwillingness to safety plan.

[14] The mother also has a son, K.M. born […], 2006 who lives in Hearst with his father. The mother has not seen K.M. for a while as he lives far away.

Events leading up to the child’s being brought to a place of safety:

[15] On May 14, 2021, the Society received a request for assistance from Kawartha-Haliburton Children’s Aid Society (KHVA). KHVA advised they had significant concerns respecting the mother and L.P. KHVA had determined that the mother and L.P. had been residing in a tent with the child for an extended period of time. In addition to their concern with respect to the adequacy of the living accommodations, there were used needles found in a tent beside theirs.

[16] Additionally, KHVA reported concern with respect to a potential risk to the child presented by her being in the company of L.P. L.P. was and is presently subject to criminal charges respecting the alleged abuse and neglect of his own children. Those criminal charges have not yet been tried.

[17] The Society worked out a safety plan with the mother which entailed the child not being in the presence of L.P.

[18] On June 8, 2021, the mother asked for some respite care for the child so that she could spend time with L.P. who she anticipated might be incarcerated in the near future. The Society agreed to arrange this.

[19] On June 9, 2021, the mother advised that her plans had changed and that she no longer required the respite care. On that date it came to the Society’s attention that the mother had gone to L.P.’s home with the child. KHVA attended at the home but the mother and L.P. (and the child) were not there.

[20] The Society later received information that the mother and L.P. were staying in a motel in Apsley. When the worker with KHVA arrived, the mother and the child were there. The mother informed the worker that L.P. had been arrested.

[21] The child was brought to a place of safety.

[22] The Society’s protection concerns are:

a) The mother has demonstrated an inability to protect or follow through with safety planning.

b) The mother denies the truth of the allegations against L.P. and is therefore demonstrating an inability to protect the child against the potential risk L.P. could pose to the child.

c) The Society is concerned with the mother’s decision to reside with the child and L.P. in a tent for an extended period of time, particular given the worker found used needles in the tent next in the yard (belonging to L.P.’s brother).

d) An anonymous call had been received asserting that L.P. had physically assaulted the child. A medical examination of the child did not verify this. The Society asserts that the child demonstrates fear when she is around men.

e) While the mother has been cooperative with the Society for the most part, she has been untruthful with the Society as evidenced by her bringing the child to stay with the mother and L.P. when the Society’s expectations that this not happen were clear.

Conclusion:

[23] The focus in this case must, as always, be on the needs and interest of the child. The paramount purpose of the Act as outlined under subsection 1(1) is to promote the best interest, protection and well-being of children.

[24] It is undisputed that the mother in this instance has much to offer the child. The undisputed evidence confirms that the child is happy, healthy, well nourished and clean and that the mother’s care for the child has been loving and appropriate.

[25] Until the child was removed from the care of her mother on June 9, 2021, she was in the mother’s uninterrupted care from birth. It has been observed that the mother and the child have a strong attachment.

[26] That stated, I am satisfied that the Society has provided evidence which is credible and trustworthy that the child was placed at risk of suffering physical harm as result of the mother residing in a tent where there were used needles nearby, and of greater concern, with L.P., particularly given the mother denies the truth of the allegations made against L.P.

[27] While the mother takes the position that that substantive evidence pointing to L.P.’s guilt has not been led, I note that no substantive evidence was produced to suggest that the allegations are false either. The KHCAS had verified these allegations and criminal charges were laid against L.P. and are presently outstanding. I consider their existence and the fact that there has yet to be a determination of the charges to be sufficient to conclude that L.P.’s presence in the child’s daily life could place her at risk of suffering physical or emotional harm.

[28] Therefore I conclude that the Society has established, based on credible and trustworthy evidence that there are reasonable grounds to believe that it is a real possibility that, if the child were returned to the mother’s interim care, the child would more probably than not suffer harm.

[29] Further, I am satisfied, based upon the evidence before me, that the child could not be adequately protected by terms and conditions of an interim supervision order to the mother given that the mother is not prepared to exclude L.P. from the child’s life and proposes to continue to reside with L.P. if the child is returned to her care. I conclude that a supervision order, even if it might be the least disruptive option, is therefore not a sufficient safety plan. There are no terms of supervision in such circumstances which would adequately protect the child in my view.

[30] There are presently no kin options which are being presented although it is noted that the Society has been exploring the viability of certain kin placements.

[31] As such there will be a temporary order as follows:

[1] The child shall be placed in the temporary care of the Family and Children’s Service of Renfrew County;

[2] Access to the mother shall be a minimum of one (1) time a week at the discretion of the Society in terms of location, frequency, duration, and level of supervision. If the mother is able to facilitate transportation to visits, then a greater number of access visits should occur, including extended unsupervised visits in the event the Society is satisfied that L.P. will not be present for such extended unsupervised visits.

[32] This matter is adjourned to at 10:00 am by Zoom videoconference.

M. Fraser J.

Date: October 15, 2021