2021 ONSC 8103

COURT FILE NO.: FC-2018-244-0003

DATE: 2021/12/14

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Valoris for Children and Adults

of Prescott-Russell

Applicant

– and –

S.B., C.L. and R.R.

Respondents

Emily Gallagher for the Applicant

Dominique Smith for the Respondents S.B and C.L.

HEARD: November 26, 2021

REASONS FOR DECISION

applicant’s motion

o’bonsawin J.

Background

[1] This is a Motion for temporary care and custody brought by the Society.

[2] The child in question is D.B.R. (“Child”), born on […], 2009. At birth, the Child was diagnosed with an atrial septal defect and has been seeing a cardiologist for this issue. The Child has also been diagnosed with attention deficit hyperactivity disorder and oppositional defiant disorder. He takes medication to treat these medical conditions.

[3] The biological father, R.R., is not involved in the Child’s life.

[4] The biological mother is S.B. (“Mother”). The Mother has three older children: a daughter named A.B., born on […], 2002; a son named R.R.B. (“RRB”), born on […], 2005; and another son R.R.B. (“RRB1), born on […], 2003.

[5] C.L. is the Mother’s ex-partner. On April 17, 2018, an Order was rendered, granting custody of the Child and his siblings to the Mother and to C.L.; he is therefore a party to the proceedings.

[6] Given the nature of this file, it is important to consider this family’s history with the Children’s Aid Society of Ottawa (“CAS”). The majority of this information is taken directly from Ms. Martel’s affidavits and from the Mother’s affidavit. Ms. Martel is the Child Protection Worker involved with this family.

[7] The Mother notes that RRB and RRB1 were sexually abused by her brother in 2010. When she found out about these allegations in 2010, she reported the incident to the CAS and the Ottawa Police. The Mother does not have regular contact with her brother and sometimes years go by without them speaking.

[8] When the Child was six to seven years old, he was sexually abused by a RRB1’s friend. When the Mother found out about the allegation roughly one month after it happened, RRB1’s friend was not permitted to ever return to her home.

[9] The Mother advises that after RRB and RRB1 began displaying overly sexualized behaviour, there were instances where she was not able to directly supervise all of her children due to her having to perform child-related tasks.

[10] The Mother finds that her children have displayed challenging behaviour over the years. RRB’s behaviour in particular has been quite challenging to manage. He has broken property in the house while being overly physical with A.B. and has been verbally abusive with the entire family when he does not get his way.

[11] In November 2011, the children were removed from their parents’ care and placed in foster care due to a report of excessive discipline and neglect. During their placement, the children were observed as being very aggressive and demonstrating sexualized behaviour. After the Mother and C.L. attended parenting courses and started individualized counselling, the children were returned to the Mother’s care in July 2012. At that time, she was living with C.L.

[12] In August 2016, the Mother accepted to place RRB1 in foster care under a Temporary Care Agreement as he had sexually assaulted the Child and RRB. During one of Valoris’ visits at home, the Mother had left all children with A.B. (14 years old at the time). Since the Mother was not respecting the safety plan (she was supposed to ensure the children were not left alone and were always properly supervised), the CAS removed all the children from her care and started a child protection application. A.B., RRB and the Child were reintegrated in the Mother’s care in December 2016, and RRB1 was reintegrated in the family home in June 2017.

[13] The Mother denies that she left A.B. to care for and supervise her brothers. In the instance in August 2016, the Mother left the home to run some errands and C.L. remained in the home with the Valoris worker, and her four children. While she was gone, C.L. fell asleep on the couch and the Valoris worker decided to apprehend the children because she was in in breach of the agreement that someone who was approved by Valoris had to supervise the children at all times.

[14] During this involvement, the children received services from Children’s Hospital of Eastern Ontario (“CHEO”), as well as counselling in relation to their inappropriate sexualised behaviour. The Mother advises that the children received coping strategies for children who had been victimized by sexual abuse and she also received counselling on how to manage the challenging behaviour displayed by her children.

[15] In February 2018, the family advised the CAS that they were about to move to Rockland, and the Mother shared that the Child and RRB1 continued to see Ms. Marcotte, the CHEO social worker. She also mentioned that RRB1 was registered in an anger management program, which was referred to him by his school. She also noted that RRB1 would see a psychiatrist, as referred by Ms. Marcotte, since RBB1 was experiencing incontinence issues. The Child completed the Family Catholic Services counselling for children who were sexually abused.

[16] On March 26, 2018, a Final Order granted custody of A.B., RRB, RRB1 and the Child to the Mother and C.L. The file was closed in May 2018.

[17] On August 25, 2018, Valoris received a referral from the Ontario Provincial Police (“OPP”) indicating that the Mother was at the police station with the Child. The Child had disclosed that he was sexually assaulted by his brother RRB1 and that A.B. had witnessed the sexual assault. It was explained that the Child touched RRB1’s penis and engaged in masturbation in front of his older brother. RRB1 then attempted to penetrate the Child’s anus. RRB1 confirmed the allegation that same day. RRB1 was charged with sexual assault, sexual interference, and invitation to sexual touching. He was released with conditions to live with his maternal grandfather and not to be in contact with the Child.

[18] The Mother then signed a TCA, placing RRB1 in foster care since there were no family members available to take care of him.

[19] In November 2018, Valoris began a child protection application as RRB1 would not be returning home in the near future, and he had already spent 459 days in care due to his placement with the CAS. Ms. Marcotte recommended that Valoris look into placing RRB1 in a specialized centre, such as the Youth Centre for Change, in London, Ontario. With the Mother’s consent, Valoris looked into this placement and on November 9, 2018, Valoris received confirmation of RRB1’s admission. He was then admitted on December 3, 2018.

[20] On March 14, 2019, as per a Statement of Agreed Facts, a Final Order was granted declaring RRB1 a child in need of protection and placing him in Valoris’ interim care for a period of five months. The Order granted the Mother and C.L. access according to RRB1’s wishes. Following that Order, the Mother and C.L. informed Valoris that RRB1 would not be able to return home. They were dealing with incidents where their other sons exhibited sexualized behaviour, and the Mother indicated that she was overwhelmed and even considered placing her other sons with family members. The Mother and C.L. had also tried parenting sessions with a community integration counselor, but they cancelled several sessions and thus, the file was closed because of their lack of participation.

[21] RRB1 was adapting well to his treatment program but struggled with his emotions and certain relationships. He attended his therapy sessions with the psychiatrist Dr. Loveday, as well as with the other professionals. The Centre reported that RRB1 had a few anger outbursts where he became destructive toward the property but was then receptive to the consequences and understood the reasons for the consequences imposed.

[22] On September 19, 2019, as per a Statement of Agreed Facts, a Final Order was rendered, placing RRB1 in Valoris’ extended care, with access to his parents according to his wishes.

[23] Even though the court child protection file was terminated, Valoris continued its involvement with the family. In fact, the file never closed since it first opened on August 25, 2018.

[24] Following the September 2019 extended care Order, RRB1 continued regular visits with the Mother and C.L. In May 2020, RRB1 began weekend visits during which the Mother and C.L. demonstrated they could adequately supervise all the children.

[25] On October 20, 2020, RRB1 completed his treatment for sexualized behaviour with the Children’s Treatment Center. The final report stated that the social worker, Mrs. Dicintio, strongly felt that RRB1 had developed the necessary coping skills to apply moving forward. Mrs. Dicintio also noted that while it was of concern that RRB1 would potentially move back home where his victim resided, she had no indication of sexualized risk at that time. RRB1 and the Mother then started to ask for his return home. Valoris did not support RRB1’s return home due to some protection concerns towards the other children at home, especially towards the Child. There were also concerns as to how the Mother and C.L. could properly implement a good structure and routine at home for all children, as they had been asking to place RRB in a foster home because of his behaviour.

[26] On November 26, 2020, Valoris was advised by the Laurencrest Youth Services Director that RRB1 had discharged himself from the program and had left the Center with the Mother. Since RRB1 was seventeen years old and had returned to live with the Mother and siblings, Valoris brought forth an Application for a Status Review asking to terminate RRB1’s Extended Care Order.

On March 10, 2021, an Order terminated the Extended Care Order. Notwithstanding, Valoris continued its involvement with the family. The Mother and C.L. were told to be extra vigilant and ensure the children were never left unsupervised with RRB1. The Mother and C.L. acknowledged and said they understood the risks associated with having RRB1 return home. Regardless of their promises, the situation at home did not go too well and problems continued. This raised concerns regarding the children’s protection. The important incidents follow.

[27] On February 18, 2021, the Mother informed Valoris that her “cousin”, S.B, moved in with her and the children. According to the Mother, he was under house arrest for dealing drugs, but she did not believe he posed a risk for the children. The Mother denies she said he had been arrested for dealing drugs. She told Valoris it was due to a shooting incident in Hamilton, Ontario. On October 12, 2021, S.B. pled guilty to some charges and received an eight-month sentence.

[28] On March 19, 2021, Valoris addressed concerns with the Mother about the fact that the Child was not taking his medication daily. The Mother confirmed that she found medication tablets in the cupboards or in the cracks of the couch. She advised she was going to better supervise the Child when he had to take his medication.

[29] On or around March 26, 2021, Valoris referred the Child to the gender diversity clinic at CHEO with his approval and the Mother’s consent. The Child told his mother that he self-identified as a woman and that this was the reason for his referral.

[30] On March 29, 2021, the Mother asked to return RRB1 into foster care. She indicated she could no longer deal with his aggressive behaviour. The Mother advised Valoris that RRB1 had made holes in the walls and was now acting verbally and physically aggressive towards family members. Valoris offered supporting the Mother to help her deal with RRB1’s behaviour instead of placing him in foster care again.

[31] In March and April 2021, Valoris was informed that RRB and the Child’s school attendance was problematic, and the Mother was not justifying her children’s absences at school.

[32] In April 2021, the Mother and C.L. separated. The children remained with the Mother and C.L. moved out.

[33] On May 4, 2021, RRB1 contacted Valoris to inform them that the Mother had thrown him out of the house and that he was living with a family friend, Mr. Boucher, in Ottawa. When Valoris met with the Mother and RRB1, they both explained that there were many conflicts between them at home. RRB1 did not want to return home.

[34] On May 10, 2021, Valoris addressed a situation that had been reported where RRB had reportedly slapped a 12-year-old girl’s bum. The Mother was aware of the situation. She clarified that the girl was 15 years old and that it had occurred in the field beside her house. The Mother said that A.B. had witnessed the incident and had intervened. The Mother advised that RRB was allowed to go to the park under A.B. or the Child’s supervision. Valoris advised the Mother that she could not give this responsibility to the Child since he was too young to be responsible for his older brother. That same day, Valoris informed the Mother that Martin Plouffe, an interpersonal collaborator with Valoris, had closed his file due to a lack of cooperation.

[35] On May 23, 2021, the OPP called Valoris to report that RRB and the Child, along with other kids, were caught throwing rocks at an abandoned school the previous night.

[36] At the end of May 2021, RRB1 returned home. He later reported that the person with whom he was living was using a significant amount of drugs and alcohol.

[37] On June 1, 2021, the school informed Valoris that the Mother had thrown RRB out of the home the previous day and that he was temporarily living with C.L. RRB explained that he was pushed to the ground and physically restrained by J.W., S.B.’s brother. On June 2, 2021, the Mother confirmed she was in a relationship with S.B.

[38] On June 6, 2021, RRB had his first consultation with Dr. Fedroff, a psychiatrist at the Sexual Behavioral Clinic at the Royal Ottawa Mental Health Centre. RRB missed his appointment since he was not at home. Another meeting was scheduled for July 14, 2021.

[39] On or about June 9, 2021, the Mother went to the hospital because of suicidal ideations. She told Valoris that the doctors wanted to keep her for a week, but she refused since A.B.’s birthday was a few days away and she did not want to ruin her special day. The Mother advises that in the late spring and early summer of 2021, she had a difficult period because of her mental health. She attributes the worsening of her mental health issues during that period to her psychiatrist’s adjustment of her Prozac prescription. She takes this medication to treat her post-traumatic stress disorder, borderline personality disorder and depression. The Mother’s mental health is currently stable.

[40] On June 15, 2021, RRB returned home after he reported to the Mother that C.L. and his partner often yelled at him.

[41] On June 16, 2021, the Mother shared with Valoris that she had been in an abusive relationship with C.L. and that he was not supporting her with the children. This was notwithstanding the fact that the Mother had sent RRB to live with C.L. in May. The Mother denies that C.L. was ever abusive towards her.

[42] On July 17, 2021, the Mother informed Valoris that RRB1 had gone to S.B.’s mother’s home for a few days, as there were many conflicts at home.

[43] On July 19, 2021, the OPP were called as the Mother and A.B. were having a verbal dispute. While the constable was leaving the home, a neighbor told him that A.B. and RRB were seen dancing/twerking with each other in a sexual manner and saying sexual comments. On July 24, 2019, the constable reported this to Valoris.

[44] On July 28, 2021, the Mother informed Valoris that she was having difficulties with RRB’s behaviour, as he was not respectful, showed attitude and argued a lot. RRB often said inappropriate comments such as “come suck my dick”.

[45] In August 2021, the Valoris employees involved with RRB had an initial consultation with psychotherapist Karina Bourbonnais. The goal was to obtain strategies related to RRB’s inappropriate sexualized behaviour in his school setting and to better support him in managing his behaviour.

[46] On August 3, 2021, OPP Constable Siset informed Valoris of an incident involving RRB. The constable explained that RRB had told two young teenagers that he was going to rape them while they were playing at the park. The constable explained that he had talked with the Mother, who said that RRB had left the home without her permission. Valoris made several attempts to address this referral with the Mother, but she either cancelled the meetings or was not home when the meetings were to occur.

[47] On September 14, 2021, Valoris received a referral indicating that the Mother was seen hitting RRB. He disclosed that the Mother had hit him because he had not cleaned his room.

[48] On September 15, 2021, the Mother informed Valoris that RRB1 had moved out a couple of weeks ago. The Mother explained that she found some nude pictures and videos of herself on RRB1’s cellphone. As this was the second incident since May, she asked him to leave her house. RRB1 went to live with his maternal grandmother in Ottawa.

[49] On September 17, 2021, Valoris received a call from OPP Constable Anger reporting that the Child had disclosed to the Mother that RRB1 had sexually abused him again, claiming that RRBI inserted his penis in the Child’s anus while the Mother was not supervising them. The constable indicated that Detective Dufresne would be responsible for the investigation and will communicate with the Mother to schedule the interview. That same day, Valoris met with the Mother and asked her to explain what had happened. The Mother explained that the previous night, the Child informed her that RRB1 had asked him if he could penetrate him anally. The Mother said that the Child had agreed at first, but then told his brother to stop, and that RRB1 did not stop. According to the Mother, this incident occurred about three to four months ago. When Valoris asked the Mother where she was when this happened, she disclosed that she had left the children with her boyfriend, S.B. The Mother said that S.B. was aware of the situation and knew that the children should not be left alone together, so when he had not seen or heard from them for ten minutes, he went looking and found them in RRB1’s room with the lights off. S.B. said that he found the situation sketchy, but just told the Child to return to the living room with him. The next day, the Mother said she asked the Child about the situation, but he did not disclose anything. She believed the Child and RRB1 had planned to have sexual intercourse. She stated that if the Child wanted it, then he was not a victim. Valoris reminded the Mother that the Child was a child and therefore could not consent to such intercourse. In addition, this intercourse was between brothers. Valoris advised the Mother that it was extremely concerned about the situation. She knew that she had to ensure the boys were always properly supervised, and she decided to not to follow the safety plan, which resulted in the Child being sexually abused again. The Mother was of a different opinion, stating that she had abided by the safety plan because she had left S.B. to supervise the children. Valoris told the Mother that if she believed that the Child was seeking to have sexual intercourse, he might ask his brother RRB to do so with him, and another incident could occur. The mother advised that she had not thought about that. Valoris told the Mother that if the Child was to stay at her place for the time being, she had to ensure that she was supervising him at all times. At first, the Mother refused, saying she could leave the Child with A.B. or her cousin S. The Mother was reminded that the first incident had occurred while A.B. was babysitting the boys, and that earlier this week, A.B. was walking around the house in only a bra while the Valoris worker was there. As for S., Valoris had not evaluated him yet, and this meant that he could not babysit the Child. The Mother therefore agreed to always supervise the Child herself. The Mother also informed Valoris that she had no intention of taking RRB1 back home. They then discussed the fact that Valoris had received a referral of physical discipline. At first, the Mother denied using any physical discipline, but when told that she had been seen by the referent, she admitted to once slapping RRB behind the head as he was being impolite. She was reminded that she should never use physical discipline. The Mother also informed Valoris that her cousin S. would be moving in with them for a few months because S.B. was going back to jail in October and she did not want to be alone with the children because she was going to have surgery soon for her stomach hernia. The Mother disputes that she advised Valoris her cousin S. would move in with her. She advises that S. is not currently living in her residence. The Mother is currently on an emergency waiting list at the Ottawa General Hospital to receive surgery for a diaphragm hiatal hernia. Despite this condition, the Mother says she is still able to function on a daily basis and this condition would not prevent her from continuing to care for the Child.

[50] The Mother denies having ever inappropriately physically disciplined her children.

[51] On September 23, 2021, Valoris brought the Child to the police station for his statement interview. The Mother was supposed to bring him, but did not feel good, and Valoris offered to bring him and she accepted. Detective Dufresne proceeded with the interview, while the Valoris worker was listening in. The Child disclosed various sexual activities between him and RRB1 and one incident between him and RRB, giving many details on the events. The Child disclosed RRB1 and RRB putting their penis in his anus. The Child had to take RRB1’s penis in his hands to masturbate him and the Child put RRB1’s penis in his mouth. When asked, the Child said that he had told his Mother after the sexual incident with RRB, but that she did not do anything about it. The Mother denies knowing about the sexual assault by RRB. Following this interview, the Valoris worker brought the Child back home to get his things since she had informed him that she was placing him in foster care. Once at home, Valoris informed the Mother that the Child had disclosed various incidents between him and RRB1 over the past year, and not just one recent incident. The Mother did not have any reaction and did not seem surprised. Valoris also informed her that the Child had disclosed an incident occurring with RRB. Again, the Mother did not have any reaction except to say that the boys all had sexual behaviour when they were younger. Valoris then informed the Mother that the Child would be placed in foster care to ensure his safety. This is when the Mother told Valoris that she should have kept this information to herself, and not call the police or Valoris to inform them about it. The Mother did not understand why Valoris was placing the Child in care despite Valoris having explained to her that the Child had been sexually assaulted by his siblings many times over the past year and that she had not been able to protect him, even though she knew this was a risk.

[52] On September 28, 2021, a temporary without prejudice order placed the Child under Valoris’ care. Valoris became aware that RRB had moved out of the Mother’s home and went to live with C.L.

[53] The Mother acted as S.B.’s surety for a period of roughly ten months. S.B. was released with a GPS ankle monitoring bracelet which included a condition of house arrest. As the surety, the Mother was required to attend criminal court in Hamilton, Ontario on October 12, 2021 for his sentencing. S.B. did not breach his bail conditions during the time the Mother acted as his surety.

[54] On November 2, 2021, Valoris asked the Mother to confirm her supervised visits before 9:00 a.m. the morning of the visits. The reason for this request was for the Mother to show Valoris that she was responsible and took her appointments seriously.

[55] On November 3, 2021, the Mother did not text the interpersonal collaborator Martin Plouffe as requested. The collaborator had to call and text the Mother to confirm the visit.

[56] On November 8, 2021, the Mother did not confirm her visit on time. Valoris had to call her to confirm the visit and reminded her of its expectations to confirm the visits before 9:00 a.m.

[57] On November 11, 2021, Valoris met with RRB who had disclosed various concerning things. S.B. would drink a lot of alcohol and sometimes get mad and smash things. He also made two holes in the walls near the entrance. This information was never previously disclosed to Valoris by anyone of the household. When RRB was living with the Mother and siblings, the Mother spent most of her time with S.B. and did not pay much attention to him and his siblings. His brother RRB1 no longer lives in a shelter in Ottawa. He has now returned to Hawkesbury and is living with a friend. RRB did not know if RRB1 and the Mother had any contact. Even though Valoris had regular meetings with the Mother, she never disclosed that RRB1 had returned to Hawkesbury.

[58] On November 12, 2021, Valoris sent an email to the Mother and stepfather to confirm the next visits and reminded them of its expectations to confirm the visits the morning of the visit before 9:00 a.m. A Valoris worker informed the parents that she would supervise the access for the next two visits and asked them to confirm their visits with her. Valoris asked the Mother to send an email on the day of the appointment to show that she remembered the appointment and would have gone with the Child had he been under her care.

[59] On November 15, 2021, the Mother confirmed her presence to the visit with collaborator Martin Plouffe instead of confirming with the Valoris worker. She did, however, confirm her visit on time.

[60] On November 15, 2021, Valoris received a referral raising various concerns. The Mother and RRB1 were in regular contact since he returned to Hawkesbury. The referent advised that the Mother visited RRB1 where he lived and gave him rides to places even though RRB1 had a no-contact condition towards his Mother. The Mother and her boyfriend, S.B., were selling drugs. Since S.B. returned to prison, the Mother continued to sell drugs. The referent knew many of the terms used in those sales, such as “hard” meaning crack (rocks), “soft” meaning cocaine and “lettuce” meaning marijuana. The Mother says she has not spoken to RRB1 since he moved out of her house. She also states that she does not sell drugs.

[61] On November 16, 2021, Victim/Witness Assistance Program confirmed to Valoris that RRB1 was living in Hawkesbury on Mario street.

[62] On November 17, 2021, while the Valoris worker was driving close to Mario street, she saw the Mother heading to Mario street. Since the worker knew that the Mother was not allowed to have contacts with RRB1, she passed in front of the Mario street address and saw the Mother’s car parked in the driveway where RRB1 was living. The Mother disputes this and says that her and her friend of 12 years, C.M., had swapped vehicles. The Mother had C.M.’s vehicle because she was planning to pick up large mirrors. The seller ended up not being available on November 17, 2021. C.M. confirmed to the Valoris worker that she had the Mother’s vehicle and she had brought RRB1 some food on that date. C.M. lives three to four houses down the road from where RRB1 currently lives. The Mother says she did not go to the house where RRB1 resides at any point on November 17, 2021.

[63] On November 18, 2021, the Mother confirmed her visit with the Child past 10:00 a.m.

[64] RRB currently has bail conditions in place, but they do not prevent him from communicating with the Mother. He does, however, have bail conditions preventing him from communicating with the Child and RRB1. She also understands that RRB1 currently has bail conditions in place that prevent him from communicating with the Child, A.B., RRB and the Mother.

Position of the Parties

[65] Valoris seeks a temporary order placing the Child under its care. This is a continuation of the Order currently in place. It is Valoris’ position that a supervision Order is insufficient for this Child. The previous safety plan in place to supervise the Child while he was in the Mother’s custody and care was insufficient. There is a risk the Child could be sexually assaulted again. Valoris asks that the visits be left at its discretion at least once per week. It does not oppose short visits occurring in the Mother’s home if appropriate conditions are put in place to protect the Child.

[66] Valoris argues that the Mother has a history of not abiding by the imposed conditions and does not appropriately supervise her children. Valoris is also concerned that she is not respecting RRB1’s criminal conditions in place and points to the issue where her vehicle was seen in the driveway of the house where RRB1 is staying. It questions the Mother’s story about switching vehicles with her friend, asking why the friend would use the Mother’s car to drop off food to RRB1 who lived only three to four houses away from her house. Valoris notes the Child has suffered sexual assault on many occasions at the hands of several different people and wants to ensure that the Child is not sexually or emotionally abused again. Valoris wants the Child and the Mother to obtain counselling to understand the gravity and seriousness of the situation.

[67] Lastly, Valoris notes that S.B. was implicated in a shooting incident. The Mother highlights that she was approved as his surety on serious charges. Valoris questions whether the Mother spent more time supervising S.B. than her sons. An incident of sexual assault occurred when the Mother left S.B. to supervise her sons.

[68] Mr. Smith acts for the parents although they are no longer in a romantic relationship. He has received instructions to continue to act for them. The Mother submits that she has always appropriately met the basic needs of her children. On the date that the Child was apprehended from her care by Valoris, RRB had ceased living at her residence and went to reside with his step-father C.L.

[69] The Mother seeks to have the Child returned to her care under the supervision of Valoris. If the Child is returned to her care, it is her understanding that RRB will continue to reside with C.L. She is prepared to follow a condition which would prevent her from having RRB attend her residence. In addition, if the Child is returned to her care, she will make it very clear to the Child that he is not permitted to communicate in any way with his brothers RRB1 and RRB. She will ensure that he does not have access to a cell phone or social media without her direct supervision. If the Mother learns that RRB1 or RRB have communicated with or attempted to communicate with the Child, she is prepared to call the police and Valoris. She notes that she has previously called the police and Valoris when she learned that RRB1 had sexually abused RRB and the Child. If the Child is returned to the Mother’s care, she will ensure that her brother does not attend her residence. It is her understanding that her brother does not even know where she lives.

[70] The Mother is also prepared to provide copies of both RRB1 and RRB’s release orders to staff at the Child’s school to assist them in ensuring that there is no communication between the Child and his brothers.

[71] Ms. Ahmad-Yousuf has met with the Child on two occasions. He has told her he wants to return to the Mother’s care. If that is not possible, he wants to receive much more access with her.

Analysis

[72] Section 94 of the Child, Youth and Family Services Act (CYFSA), 2017, S.O. 2017, c. 14, Sched. 1, governs the issue of custody during an adjournment. Section 94 states as follows:

Adjournments

94 (1) The court shall not adjourn a hearing for more than 30 days,

(a) unless all the parties present and the person who will be caring for the child during the adjournment consent; or

(b) if the court is aware that a party who is not present at the hearing objects to the longer adjournment.

Custody during adjournment

(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.

Where child is subject to extra-provincial order

(3) Where a court makes an order under clause (2) (d) in the case of a child who is the subject of an extra-provincial child protection order the society may, during the period of the adjournment, return the child to the care and custody of the child welfare authority or other person named in the order.

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.

Application of s. 107

(7) Where the court makes an order under clause (2) (d), section 110 (child in interim society care) applies with necessary modifications.

Access

(8) An order made under clause (2) (c) or (d) may contain provisions regarding any person’s right of access to the child on such terms and conditions as the court considers appropriate.

Power to vary

(9) The court may at any time vary or terminate an order made under subsection (2).

Evidence on adjournments

(10) For the purpose of this section, the court may admit and act on evidence that the court considers credible and trustworthy in the circumstances.

Child’s views and wishes

(11) Before making an order under subsection (2), the court shall take into consideration the child’s views and wishes, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained.

[73] As per s. 94(2), different temporary Orders can be granted. In this case, the Child can be returned to his Mother’s care, be returned to his Mother’s care subject to Valoris’ supervision, be placed in the care and custody of another person other than the Mother or remain in the care and custody of Valoris. The court can only place the Child in the care of the other person or Valoris’s care if it is satisfied that there are reasonable grounds to believe that the Child is likely to suffer harm and cannot be adequately protected if placed in his Mother’s care or in his Mother’s care subject to Valoris’ supervision. Before making the temporary Order, the court must consider the child’s best interest. In this case, a placement with a relative is not possible since no one put forward a plan of care for the Child.

[74] Valoris has the burden of proof to establish on the evidence provided 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 adequately protected if he is returned to his Mother without or with Valoris’ supervision.

[75] Based on my review of the affidavits filed, I find the three affidavits of Ms. Martel to be credible and trustworthy as per s. 94(10) of the CYFSA. The majority of the evidence contained in her affidavits is not contested by the Mother. I question some of the Mother’s assertions in her affidavit.

[76] I start off by noting that this is a very sad case. The Child has been sexually assaulted by various people on many occasions including by his own brothers. He was first sexually assaulted when he was only six to seven years old. While it may be true that the Mother informed Valoris that the Child has been sexually assaulted by one brother, I question whether she was aware about the other brother’s sexual assault on the Child and did not report it. Based on the evidence, I find the Mother did not appropriately supervise the children as required; at times, she left them under the care of one of her children, A.B., who is not an adult, or her boyfriend S.B. Sexual assaults occurred under the supervision of these individuals. The Mother’s excuse that she could not directly supervise all of her children due to having to perform tasks related to caring for her children is unacceptable and not believable in the circumstances.

[77] Another troubling matter is related to the Child’s police interview on September 23, 2021. The Child disclosed to the police that there were various sexual activities with both of his brothers. More specifically, RRB and RRB1 put their penises in the Child’s anus and RRB1 put his penis in the Child’s hand to masturbate him and put his penis in the Child’s mouth. When the police officer asked the Child if he had told the Mother, the Child replied that he had told her afterwards but that she did not do anything about it.

[78] It is clear from the evidence that RRB1 has significant issues. According to the evidence, he admitted to penetrating the Child’s anus. I also find the Mother’s reaction to this incident to be very disturbing. She believed that since the Child and RRB1 had planned to have sexual intercourse and the Child was an active participant, he was not a victim. This is a completely unacceptable behaviour by the Mother. A 12-year-old child can never consent to having sexual intercourse. RRB1 also had nude photographs of his mother on his phone. This led to the Mother asking him to leave her house.

[79] The Mother argues that if the two older brothers are no longer present in her house, the risk of harm to the Child is diminished. I am concerned the Mother will not be as vigilant as she had been in the past when she disclosed to Valoris that RRB1 had sexually assaulted the Child in 2018.

[80] I question whether the Mother still has contact with RRB1. The Mother’s friend lives three to four houses away from where RRB1 resides, but the Mother’s vehicle was seen in that driveway when the friend supposedly dropped off food for RRB1. The Mother’s story about swapping cars with her friend is not believable.

[81] The Child has been sexually assaulted multiple times while in the care of the Mother. The most recent assault is in September 2021. The Mother has had difficulties dealing with her children’s behaviour. For example, when RRB1 returned home in March 2021, the Mother asked for him to return to foster care because she could not deal with his behaviour. RRB also left the Mother’s house in June 2021 and returned a few weeks later. I question whether the Mother can properly supervise the children given her track record.

[82] The court has been advised that the Child wishes to return to the Mother’s care. If that is not possible, he wants to receive much more access with her. I understand his request. However, given my findings above about the Mother’s incapacity to provide a home environment that protects him against further risk, I find it is in the best interest to grant Valoris’ Motion.

Conclusion

[83] For the reasons noted previously, I find it is in the Child’s best interest to grant Valoris’ Motion for a Temporary Order placing the Child in the care and custody of Valoris during the adjournment in accordance with subsection 94(2)(d) of the CYFSA. Valoris has met its onus and proved that there are reasonable grounds to believe that the Child is likely to suffer harm and he cannot be adequately protected if he is placed in his Mother’s care or in his Mother’s care subject to Valoris’ supervision. In this case, a placement with a relative is not possible since no one put forward a plan of care for the Child. He must temporarily remain in Valoris’ care and custody.

Justice M. O’Bonsawin

Released: December 14, 2021

2021 ONSC 8103

COURT FILE NO.: FC-2018-244-0003

DATE: 2021/12/14

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Valoris for Children and Adults of Prescott-Russell

Applicant

– and –

S.B., C.L. and R.R.

Respondents

REASONS FOR DECISION –

applicant’s Motion

O’Bonsawin J.

Released: December 14, 2021