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-21-061

DATE: 2021/11/08

SUPERIOR COURT OF JUSTICE - ONTARIO

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

AND:

J.L.S., D.D.J., J.M.L., Respondents

BEFORE: Justice Mary Fraser

COUNSEL: Anais Lussier-Labelle, Counsel for the Applicant Francois Kasenda Kabemba, Counsel for the Respondent J.L.S. Duncan Crosby, Counsel for the Respondent D.D.J. Elizabeth Amy Sheppard, Counsel for the Respondent J.M.L.

HEARD: August 30, 2021

ENDORSEMENT

[1] The Applicant, Family and Children’s Services of Renfrew County (the “FCSRC”) and the Respondent mother, J.L.S. have each brought a motion to address the temporary care and custody of the children. On March 1, 2021, I made a without prejudice order which, among other things, placed the child T., born September 2017 in the temporary care and custody of his father, J.M.L. and which placed the child D. born September 2013 in the temporary care and custody of his father, D.D.J. and the paternal grandmother, N.H. J.L.S. was granted parenting time with both children on a supervised basis.

[2] FCSRC asks for a temporary order that the child, T. remain in the care of J.M.L. and that D. remain in the care of D.D.J. on the same terms as previously ordered on a without prejudice basis except that it additionally asks that J.L.S. confirm by 9:00 a.m. on the day of a scheduled visit that she will be attending or the visit will be cancelled. The FCSRC additionally asks for an order requiring regular contact between the children, and more specifically, a minimum of two hours every week unless otherwise approved by FCSRC.

[3] J.L.S. asks for an order returning both children to her care on an unsupervised or alternatively, on a supervised basis and subject to J.M.L. and D.D.J. having access with the children.

Legal considerations on temporary care and custody motion:

[4] Section 94(2) of the Child, Youth and Family Services Act, 2017 requires that where a hearing is adjourned, a temporary order for the care and custody of the children be made. Section 94(2) provides as follows:

(2) Custody During Adjournment – 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 of 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 place in the care and custody of the society, but not be placed in a place of temporary detention, of open or of secure custody.

[5] Section 94(4) further provides:

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).

[6] 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 parent that had charge of the child immediately before the intervention, 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 21157 (ON SC), [2000] O.J. No. 2273 (Ont. Sup. Ct.)). Simply stated, this is a two-part test that the Society must meet.

[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.

[8] 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.

Analysis:

[9] The children were removed from the care of the J.L.S. in Renfrew, Ontario on February 24, 2021 without a warrant by FCSRC as a result of its concern that the children were at immediate risk of harm due to J.L.S.’s recent behaviour. D. and T. were brought to a Place of Safety within the confines of Renfrew County. D. was placed in the joint care of his father, D.D.J. and his paternal grandmother, N.H., while T. was placed in the care of his father, J.M.L.

[10] FCSRC understands that J.L.S. had a brain tumor as a child which has required significant medical care. Although the tumor was previously removed, it continues to impact J.L.S.’s life in that, at times, her speech may be slurred, or her movements may be impacted. J.L.S. has shared that she has felt discriminated against because of this as others, such as the police, have made assumptions that she is intoxicated or under the influence when it is in fact related to her medical condition. FCSRC asserts that J.L.S. has shared limited information about her condition which makes it difficult for FCSRC to safety plan.

[11] On February 24, 2021, J.L.S.’s oldest child, D., was removed from her care and brought to a place of safety. This was one of several incidents which had occurred that month and which involved reports that J.L.S. was agitated and argumentative, yelling and swearing and verbally aggressive with others, all of which was occurring while the children were present. D. was brought to the home of his paternal grandmother, N.H., where his father, D.D.J., also resides along with his partner.

[12] At the time, J.L.S.’s youngest son, T., was having parenting time with his father, J.M.L., and it was decided the T. would remain with his father until further assessment of safety in J.L.S.’s home could be completed.

[13] Following the events of February 24, 2021, FCSRC initiated a Child Protection Application. The First Appearance occurred on March 1, 2021. On that date, a temporary and without prejudice Order was made placing D. in the joint care of his paternal grandmother and father, and placing T. in the care of his father, subject to Society supervision.

[14] From the time this first visit occurred on March 9, 2021 until the date of the hearing, J.L.S. has attended seven (7) of the scheduled visits. Each visit occurred at the Renfrew FCSRC office and was supervised by FCSRC staff.

[15] The last visit attended by J.L.S. occurred on March 31, 2021 and ended early.

[16] After the first visit, J.L.S. had to be asked to not video the visit and not to use her phone for calls or texting. J.L.S. was very fixated on capturing every detail of the visit as opposed to engaging with the children. Fortunately, this was not an issue for subsequent visits;

[17] However, J.L.S. struggled to manage her anxiety and frustration over being at the office. At times, this would result in J.L.S. making angry and aggressive comments at the FCSRC worker or at D. during the visits. For example, during a visit D. was making a noise that J.L.S. found annoying. When he would not stop, she said to D. “why are you acting this way? It’s because of you that we’re in this situation.”

[18] J.L.S. would also make negative comments about the children’s current caregivers. This appeared to have more of an impact on D. as he understood what was being said. For example, during the visit on March 9, 2021, J.L.S. told D. to tell the worker what a bad man his father was. J.L.S. also at one point asked T. “is your Dad still getting you to hit people?”

[19] D. stopped wearing his glasses to visits and it is believed that he purposefully misplaced them after J.L.S. became angry at D. for picking out glasses with his paternal grandmother. During the March 9, 2021 visit, J.L.S. became so upset about D.’s glasses that the worker observed D. to freeze – he would not move or speak.

[20] On March 31, J.L.S’s frustration was difficult for her to manage and, despite being cautioned to not speak badly of the caregivers in front of the children, she became agitated, was yelling and swearing at the worker and making inappropriate comments. D. attempted to distract J.L.S. from her anger, but he became anxious and dysregulated which only frustrated J. L. S. further. For this reason, the visit ended early. J.L.S. gave hugs to the children to say goodbye. D. asked if he would be seeing her again this week, and J. L. S. responded, “I don’t know if I’ll ever see you again.” The worker explained to the boys that that would not happen, and they would see their mom again.

[21] J.L.S. has demonstrated that she frequently becomes angry, overwhelmed and frustrated. She will verbally lash out at the children and act in ways that are unpredictable and frightening for the children.

[22] Following the parenting time visit on March 31, 2021, the worker has attempted to re-engage with J.L.S. in order to have visits resume, discuss the worries that FCSRC has, and set goals to move forward. However, she has not attended for access with the children since March 31, 2021.

[23] Furthermore, to this date, J.L.S. has refused to allow FCSRC to speak with any of her care/ service providers.

[24] J.L.S. has, since the without prejudice order of March 1, 2021 was made, been charged with a number of criminal offences arising, it appears, from harassing conduct.

[25] J.L.S. does not dispute the events which have occurred. While she defends her reactions, she does not deny they occurred. Rather, she attributes her actions to her frustration with her circumstances.

[26] Based upon this evidence, which has not been disputed by J.L.S., it is clear that J.L.S. has demonstrated a concerning propensity to become angry, overwhelmed and frustrated. She has verbally lashed out at the children and at others in the presence of the children. She has acted in ways that are unpredictable and frightening to the children. Whether there is a medical cause for this recent behaviour is presently unknown. I do conclude from this however that there are reasonable grounds to believe that there is a real possibility that if the children were returned to J.L.S’s care at this time, it is more probable than not that that the children would suffer harm and that the children cannot be adequately protected by terms of conditions of an interim supervision order.

[27] A temporary order shall therefore issue in the terms requested in the Applicant’s Amended Notice of Motion dated June 21, 2021.

M. Fraser J.

Date: November 8, 2021