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-19-CP68-1
DATE: 2021/11/04
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 S.H. (DOB: […]/[…]/2017)
BETWEEN:
Children’s Aid Society of Ottawa
Applicant
– and –
S.F. (Mother)
– and –
B.H. (Father)
– and –
V.G. (Maternal Grandmother)
– and –
M. H. (Paternal Grandmother)
Respondents
Lois Boateng Amirikah, for the Applicant
Self-Represented
Mellington Godoy for B.H.
Cedric Nahum for V.G.
Nevada Fenton for M.H.
HEARD: October 14, 2021
Reasons for decision
mackinnon j.
Introduction
[1] The paternal grandmother, M.H. brings a motion for a temporary order for alternate weekend access and specified holiday time with her four-year-old granddaughter S.H.
[2] The Children’s Aid Society agrees there is a meaningful relationship between M.H. and S.H. It supports an access order in preference to leaving it up to the maternal grandmother but is content to leave the terms to the court to decide. The maternal grandmother says she will provide continuing contact as she determines to be in the child’s best interests, including for special events, special days and holidays, but opposes an order being made. She made no submissions as to any specific terms of access were the court to decide to make an order.
[3] Neither parent has taken a position in this motion. Both have addiction issues and neither appears to have much if any contact with their child.
[4] The Final order dated October 21, 2020 was for a six-month supervision placement of S.H. with her maternal grandmother V.G. The current application is a Status Review in which the CAS and maternal grandmother propose to enter into a final order under Child Youth Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1, section 102 for the maternal grandmother to have custody of S.H. The paternal grandmother is not opposing that outcome but seeks an access order under CYFSA section 104 as part of the proposed final order.
Brief Background
[5] The paternal grandmother has always maintained regular contact with and played an active role in S.H.’s life. The record is less clear about whether she has cared for the child for extended periods. The paternal grandmother says she did at the parents’ request, which would have been before the child was removed from their care in November, 2019. The maternal grandmother says she is unaware of the paternal grandmother having the care of the child for more than two consecutive days. Since November 2019 that appears to have been the case.
[6] When S.H. came in to care in November 2019 she was initially placed in foster care, then moved to a kin placement with a paternal aunt and uncle. During the kin placement S.H. spent one weekend per month with her paternal grandmother. In September 2020, her placement changed to the maternal grandmother. The paternal grandmother then started having one overnight visit with S.H. every weekend. This was changed to alternate weekends at the maternal grandmother’s request. There was no court order, rather these arrangements were made between the grandmothers.
[7] In November 2020, S.H. made disclosures to her maternal grandmother that she had been sexually abused by the 18-year-old grandson of the paternal grandmother, who lives with her. The allegations were reported to the police and CAS in March 2021, as a result of which the paternal grandmother’s access was suspended pending investigation. Neither the police not the CAS verified any abuse. Visits were resumed in June starting with three hours on Saturdays, then changing to six hours on alternate Sundays. Despite the paternal grandmother’s requests, her contact with S.H. has not returned to the prior alternate weekend arrangement.
Applicable Statutory provisions
[8] Three sections of the CYFSA are engaged by the submissions made in this motion:
Access order
104 (1) The court may, in the child’s best interests,
(a) when making an order under this Part; or
(b) upon an application under subsection (2),
make, vary or terminate an order respecting a person’s access to the child or the child’s access to a person, and may impose such terms and conditions on the order as the court considers appropriate.
Who may apply?
(2) Where a child is in a society’s care and custody or supervision, the following may apply to the court at any time for an order under subsection (1):
The child.
Any other person, including a sibling of the child and, in the case of a First Nations, Inuk or Métis child, a representative chosen by each of the child’s bands and First Nations, Inuit or Métis communities.
The society.
Best interests of child
74 (3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall,
(a) consider the child’s views and wishes, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained;
(b) in the case of a First Nations, Inuk or Métis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Métis cultures, heritages and traditions, of preserving the child’s cultural identity and connection to community, in addition to the considerations under clauses (a) and (c); and
(c) consider any other circumstance of the case that the person considers relevant, including,
(i) the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs,
(ii) the child’s physical, mental and emotional level of development,
(iii) the child’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression,
(iv) the child’s cultural and linguistic heritage,
(v) the importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family,
(vi) the child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community,
(vii) the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity,
(viii) the merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent,
(ix) the effects on the child of delay in the disposition of the case,
(x) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent, and
(xi) the degree of risk, if any, that justified the finding that the child is in need of protection. 2017, c. 14, Sched. 1, s. 74 (3).
Status Review: Interim care and custody
113 (8) If an application is made under this section, the child shall remain in the care and custody of the person or society having charge of the child until the application is disposed of, unless the court is satisfied that the child’s best interests require a change in the child’s care and custody.
Does section 104 or 113(8) govern this motion?
[9] I do not agree with the maternal grandmother that section 113(8) applies. That provision addresses the child’s placement pursuant to a Final order under review. It reflects the general policy of the law against unnecessary temporary changes to a child’s placement. No such change is requested here.
[10] In contrast, section 104 specifically addresses access. Subsection (2) clearly states that when a child is under a society’s supervision any person may apply at any time for an access order. Accordingly, the child’s best interest is the applicable test.
Should the paternal grandmother’s access be ordered?
[11] I conclude that the answer to this question is yes. There is tension, edging towards animosity, between the grandmothers, which is likely to worsen if the terms of the paternal grandmother’s contact with S.H. are left in the discretion of the maternal grandmother. Although they were able to agree to arrangements in the past, this is not the case now. A court order will forestall future disagreements, thereby reducing chances the child will be exposed to conflict around the issue of her ongoing contact with her paternal grandmother.
What should the terms of the paternal grandmother’s access be?
[12] The paternal grandmother wants to return to the status quo alternate weekend schedule. She emphasizes the importance to the child of their relationship, and the fact that it also keeps the child in touch with her extended paternal family. She submits that neither her grandson nor her son, who also lives with her, pose a risk to the child. She says she has and will continue to ensure that her son is not present during visits.
[13] The maternal grandmother does not agree that this amount of time is appropriate. She believes it would interfere with the weekend extra curricular activities she arranges for the child. She has concerns that both the father and grandson pose some level of risk to the child. She submits that the paternal grandmother has been less than forthright, that the father has been present during visits, and is using again in her home. She also submits that the lack of trust and confidence the paternal grandmother has in her would undermine her own relationship with the child, contrary to the child’s best interests.
[14] I find that restoring the alternate weekend visits is in the best interests of S.H. at this time, but that the additional time requested by the paternal grandmother ought not to be ordered as asked having regard to the child’s young age and limited experience with extended visits.
[15] My reasons follow.
Allegations Re: Grandson
[16] The disclosures of sexual contact were serious if true, and clearly worthy of investigation. I have concluded that despite the allegations the best interests of the child are met by restoring overnight access with her paternal grandmother, rather than restricting their contact to daytime hours whether inside or outside her apartment. This conclusion is based primarily on the following findings.
[17] First, the CAS and police investigations did not verify any abuse. The paternal grandmother denied the allegations. S.H. did not repeat any of her statements to the police or CAS authorities. A medical examination revealed no physical injuries or signs of abuse. Charges were not laid against the grandson. The CAS found no protection concerns regarding the paternal grandmother. According to a maternal aunt in close contact with S.H., no disclosures have been made since the matter was reported.
[18] Second, the paternal grandmother’s access had been suspended during the investigation. Even before it was complete the three-hour visits were restored between the paternal grandmother and S.H. Two paragraphs in the maternal grandmother’s affidavit indicate that she herself was ready to restore the alternate weekend access after the investigation was closed. In paragraph 47 she states: “ When we were first able to start expanding access, I thought we would return to [paternal grandmother’s] every second weekend but I learned through my daughter that [the father] had relapsed and was using in his mother’s home.” In paragraph 54 the maternal grandmother states, “I have not been able to increase the amount of time they have because [the paternal grandmother] is not protective of S.H. when it comes to her biological father, her son.” It seems clear from these statements that despite her lingering concerns about the grandson they were not such that she would not have restored the alternate weekend access.
[19] The allegations were and remain an important and divisive issue between the grandmothers. For that reason, although perhaps not necessary to my decision, they warrant further discussion.
[20] In November 2020, S. H. told her maternal grandmother that the grandson sometimes ate her bum. She demonstrated how he did this, making a licking motion. Around that time the maternal grandmother told her son and daughter in-law what S.H. had said. Then in December she asked S.H. to tell them too. In her affidavit, the daughter in-law states that S.H. told the exact same story that the maternal grandmother had told them, and then laughed. S.H. answered questions, including that her paternal grandmother was there, called him a bad boy, and said don’t do that. S.H. laughed again. In answer to another question she said this happened at a museum, and other people were there.
[21] Later, in February 2021, the maternal grandmother made a video of S.H. retelling her story by answering questions asked of her. The video was not in evidence. It was shown to the paternal aunt who describes it in an exhibit to her affidavit. According to her description the maternal grandmother asked leading questions, including when he eats your bum what does he do? And how come he doesn’t do it anymore? Did he get caught? In response S.H. said yes. The maternal grandmother then asked, [caught] by the paternal grandmother? To which S.H. also answered yes.
[22] The maternal grandmother reported the disclosures to the police and the CAS in March 2021. As already noted, S.H. did not repeat any of her disclosures to either the police or the CAS.
[23] A number of problems would arise were a court relying on this evidence to determine as a fact whether the grandson had sexually abused S.H. There is a lengthy gap between November 2020 when the disclosure was made and March 2021 when the matter was reported. During that interval the child was asked to retell what happened to her aunt and uncle and did so in the exact language of the maternal grandmother. She did not appear to be upset, she was questioned at that time and provided answers, and questioned again in February 2021 in a very leading manner for the purpose of making the video. Some of her answers seem improbable.
[24] The delay, the questioning, the retelling in the exact words, these are all factors that could lead a court to the conclusion that the child had been coached and/or led into saying what she said. Conversely the delay may have impacted the child’s ability to recall when she was finally interviewed professionally in the spring of 2021. Either way the ability of a court to find as a fact on balance of probability that the abuse occurred as disclosed is compromised.
[25] The maternal grandmother also relied on information provided to her by her daughter in support of her lingering concerns. In paragraph 17 she says; “We had strong concerns regarding S.’s placement with the paternal Aunt and Uncle as we were aware that the Uncle had close ties to a known pedophile and my daughter had reported to me that both Mr. H. [S.’s father] and [his son, the grandson] had suffered from sexual abuse as a child.”
[26] Much was made of this statement and the fact that the paternal grandmother did not refute it in her reply affidavit. My own view is that no weight should be placed on such vague information, based at best on double hearsay, with no explanation given for why the biological mother did not provide her own affidavit evidence. Nor was there any evidence before the court as to how this information if true should factor into the court’s decision as to the paternal grandmother’s access to S.H.
Allegations Re: Biological Father
[27] The child’s biological father (son of paternal grandmother) has lived with his mother since he was released on bail pending a number of criminal charges in 2019 . His mother was his surety at that time. The maternal grandmother alleged that the surety provision was still in effect, that therefore the father could not legally absent himself when S.H. was there for visits, and that the paternal grandmother had failed in her duty to report her son’s breach of his conditions.
[28] I conclude that the surety did not carry forward after the criminal charges were determined and sentence imposed. The father did provide her address as his place of residence in the probation documents. I was not shown any document to support the allegation that because of this she had a duty to report him to the probation officer or that he could not absent himself from her home when S.H. was there. The paternal grandmother says she insists on her son leaving and he complies. It is up to the father to clear this with his probation officer if needs be.
[29] The maternal grandmother also challenged the paternal grandmother’s reliability because she referred to a Certificate of Default in relation to the question of when she withdrew as surety. The submission was there was no such document. However, there is a document under that title included in the maternal grandmother’s exhibits.
[30] On three occasions the CAS looked into allegations that the father was present in the paternal grandmother’s home during S.H.’s access. On each occasion, the CAS actually verified that he could not have been there because he was verifiably incarcerated or present at an outpatient treatment centre.
[31] The maternal grandmother submitted that in about September 2021 the father relapsed, was using at the paternal grandmother’s home, and that she either knew he was or was reckless in her disregard. Her submissions are based on audio recordings of conversations between her daughter and the father, that her daughter gave her. Neither recording was made available to the court. Instead the maternal grandmother describes what her daughter told her the father said. In paragraph 48 of her affidavit she states: “My daughter provided me with audio recordings of her conversations with Mr.[H]. from early September 2021 where she and Mr.[H] discuss Ms.[H] bringing Mr.[H] to see my daughter where he obtained drugs from her. He described getting high and then injuring his head when he was going through withdrawal at his mother’s residence. This was consistent with Mr. [H’s] having a bruise on his face at the last court appearance.”
[32] On its face the statement does not establish that the paternal grandmother knowingly drove her son for the purpose of getting drugs, that she was present when he got high, where he got high, whether at her home or elsewhere, nor whether she was home when he was withdrawing and injured himself. It does not support a finding that the father was using in his mother’s home, that she knew he was and still allowed him to live with her. The audio recordings were not produced, with no explanation given. Although the court may receive hearsay evidence, in this case the court has a description of what was said, not the actual words spoken, and without the actual recordings the reliability of the information in the affidavit cannot be adequately assessed.
[33] The paternal grandmother’s reliability and ability to be protective of S.H.in relation to her father were also called into question by reference to a statement in her affidavit that her son had completed a treatment program, whereas the maternal grandmother says he was expelled from it prior to completion because of a relapse. Her counsel advised that the basis of this knowledge was information provided by the father’s counsel to court. In her reply affidavit the paternal grandmother explains that her son did in fact complete his 90-day rehabilitation program but was asked to leave the residence post completion because he had breached a condition of the post rehabilitation program. In the absence of any documentary proof one way or the other, I accept this explanation.
[34] For these reasons, I conclude that the paternal grandmother has not permitted her son to be present during her visits with S.H. I accept her evidence that to her knowledge he has not seen S.H. since October or November 2019. I am satisfied she will continue to ensure that he is not present when S.H. is visiting her.
Is the paternal grandmother undermining the child’s placement?
[35] The maternal grandmother produced an audio recording made of a CAS planning meeting on July 28, 2020 which was attended by both grandmothers. The purpose of the recording was to show that the paternal grandmother was not supportive of the maternal grandmother having primary care of S.H. and considered adoption a better plan for S.H. at that time. I agree the recording does show this, but overall, I do not find the contents of the recording helpful to the determination of what S.H.’s current access with the paternal grandmother should be. The paternal grandmother’s views may reflect the fact that the maternal grandmother’s first kin placement application had been rejected in February 2020, a second assessment was underway and placement with the maternal grandmother was not approved until August 2020, after this meeting was held.
[36] The audio of the July meeting also records comments back and forth between the grandmothers which are indicative of a competitive relationship between them in relation to their granddaughter, but which did not prevent the paternal grandmother from providing helpful information to assist in the child’s transition to her maternal grandmother’s home, nor prevent them from agreeing on the paternal grandmother’s access to S.H., including to successfully changing it from time to time.
[37] It is true that the paternal grandmother has expressed scepticism about the times when visits were cancelled because S.H. and her maternal grandmother had to self isolate during the pandemic. She has also suggested that the maternal grandmother has interrogated the child after access visits, even to the point of influencing her to make the disclosures giving rise to the police and CAS investigation. I am not persuaded that the paternal grandmother’s views of the maternal grandmother rise to the level of undermining S.H.’s placement; she does not oppose the placement now in any event.
[38] It is also true that the maternal grandmother has cast aspersions on the reliability and credibility of the paternal grandmother and has called into question her ability to put the child’s best interests first. On the totality of the evidence I am satisfied that the tension between the grandmothers can be managed by a court order setting out the terms of the paternal grandmother’s access with the child, and is not of such a nature as to undermine the child’s primary placement with the maternal grandmother.
Conclusion
[39] The access order made is based on consideration of the best interests of the child in accordance with section 74(3) of the CYFSA set out earlier in these reasons. I have considered all of the factors and find the provisions subsections (3)(c) (i)(ii)(v)(vi) and (vii) to be of particular importance here.
[40] I order that the paternal grandmother shall have alternate weekend access with S.H. commencing from Friday after school, to be picked up by the paternal grandmother, until Sunday when she shall return her to the maternal grandmother by 4 p.m. When school is not in session the Friday pick up time shall be 4 p.m.
[41] The paternal grandmother shall ensure that S.H. attends her regularly scheduled extracurricular activities on the Saturdays when S.H. is with her.
[42] If the paternal grandmother’s regularly scheduled weekend falls on a long weekend, her weekend access will be extended to commence on Thursday from school if Friday is the holiday, and to end on Monday at 4 p.m. if Monday is the holiday.
[43] Having regard to S.H.’s age and development and the temporary nature of this order the following additional provisions are made for access between her and her paternal grandmother:
i. In each of July and August, one of her weekends will be extended to be a three-day weekend i.e. from Friday afternoon to Monday evening, and this shall not include any weekends that would already have been extended by virtue of paragraph [42] above.
ii. During the annual school break in December, an additional visit with S.H. on December 26 from 4 p.m. overnight to December 27 at 4 p.m.
iii. If S.H.’s birthday does not fall within a regular weekend for the paternal grandmother then there shall be a birthday visit with S.H.to be scheduled for two hours if on a weekday, or three hours if during a weekend, to take place within four days of S.H.’s birthday.
iv. The paternal grandmother may attend any school special event at which parents are welcome, and she may attend special events associated with S.H.’s extracurricular activities, such as for example, a year end recital or performance whether or not that special event takes place on her regular weekend.
[44] Both grandmothers should expect that changes to these special days and holidays may well be appropriate as S.H. grows older. If they cannot agree on changes the court may be called upon to determine such issues down the road.
[45] A condition of all of the paternal grandmother’s access to S.H. is that the biological father is not present at anytime during the visits, and that S.H. is not left alone with the paternal grandmother’s grandson.
Mackinnon J.
Released: November 4, 2021
COURT FILE NO.: FC-19-CP68-1
DATE: 2021/11/04
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 S.I. (DOB: S.H. Born […]/[…]/2017)
BETWEEN:
Children’s Aid Society of Ottawa
Applicant
– and –
S.F.
– and –
B.H.
– and –
V.G.
– and –
M.H. Respondents
reasons for decision
Mackinnon J.
Released: November 4, 2021