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 and Parties

COURT FILE NO.: FC-16-2381-1 DATE: 2022/05/06

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

CHILDREN’S AID SOCIETY Applicant – and – K.T., E.M. and J.W. Respondents

Counsel: M. Hecht, for the Applicant D. Paolucci, for K.T. D. Smith, for E.M. E. Anekwe, for J.W.

HEARD: April 12, 2022

Reasons for Decision

Parfett J.

[1] This is a motion by the Children’s Aid Society (“Society”) for a temporary care and custody order placing the child J. (born in […] 2020) with his biological father, J.W. pursuant to an interim supervision order.

BACKGROUND

[2] The child’s parents are the respondents K.T. and E.M. They were the child’s primary caregivers from birth until the child was apprehended on February 3, 2022.

[3] The Society has been involved with the parents since the beginning of 2020, shortly after the child’s birth. The key issues from the Society’s perspective have been the parent’s mental health and domestic violence. The Society initially worked with the couple pursuant to Voluntary Services Agreements, but they believed that the problems had not dissipated and therefore, a protection application was started in March 2021.

[4] From March 24, 2021 to February 2, 2022, the parents cared for the child pursuant to an interim supervision order. In November 2021, J.W. was granted access visits. Access visits proceeded reasonably well but the parents were not happy with the fact that access was occurring at all.

[5] On February 2, 2022, police were called to the residence because of what appeared to be a domestic dispute. Ultimately, E.M. was charged for obstruction and released on conditions, including non-attendance at K.T.’s residence. The parents have been living separately since this date.

[6] On February 3, 2022, the child was apprehended by the Society and placed in the care of J.W. pursuant to an interim supervision order. The Society is asking that this order be continued pending the trial of the protection application. E.M. and K.T. ask that the child be returned to K.T.’s care pursuant to an interim supervision order.

LEGAL PRINCIPLES

[7] The legal principles in relation to a temporary care and custody order are well-established and the parties provided substantially similar information in their respective factums.

[8] Pursuant to s. 94(4) of the Child, Youth and Family Services Act [1], the onus is on the Society to satisfy the court 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 by an order returning the child to parental care with or without an interim supervision order.

[9] At a care and custody hearing, the Society must establish, on credible and trustworthy evidence, reasonable grounds to believe there is a real possibility that, if the child is returned to K.T.’s care, it is more probable than not that he will suffer harm. Further the Society must establish that the child cannot be adequately protected by terms and conditions of an interim supervision order to K.T. [2]

[10] The caselaw has held that there must be ‘tangible, not speculative evidence that there is a real possibility that it is more probable than not that a child will suffer harm if returned to the parent. [3]

[11] The standard of proof for placing the child in the care of a third party is ‘a reasonable likelihood of risk and the standard of proof is something less than the ordinary civil onus of proof of the balance of probabilities.’ [4] Of note, the Divisional Court has held that ‘the standard is not the balance of probabilities as to the actual existence of real risk but is an evaluation of the reasonableness of the grounds for the CAS’ belief.’ [5]

[12] The CYFSA provides in section 1 that the least disruptive course of action that is available and appropriate in a particular case should be considered. In considering the best interests, protection and well-being of children, the CYFSA recognizes that while many parents may need help in caring for their children, that help should give support to the autonomy and integrity of the family unit.

ISSUES

[13] Is the child at risk of harm if he is returned to the care of K.T.?

[14] If so, would the child be adequately protected from that risk by the terms and conditions of an interim supervision order?

POSITIONS OF THE PARTIES

[15] The Society is concerned about the parents’ mental health and domestic violence and argues that the parents have not demonstrated sufficient changes in their behaviour. In addition, they have refused to sign consents that would allow the Society to monitor their progress in the programs they are involved with. J.W. supports the Society’s position.

[16] K.T. and E.M. argue that the Society has no concrete evidence that they have any mental health issues. They concede they have had problems regulating their emotions while they were living together and that this resulted in verbal arguments. However, they state these arguments were not common. Furthermore, they point out that as they are no longer living together, the possibility of arguments is much reduced. They also concede they do not trust the Society due to past history, but they argue that they are prepared to work with the Society.

[17] K.T. and E.M. raised concerns about the child’s care while he has been with J.W. The Society has not perceived the same concerns.

ANALYSIS

[18] The Society has provided significant evidence that the parents have not been very cooperative, have been emotionally volatile and on occasion, abusive towards the workers. They have also provided evidence of the lack of emotional regulation that they argue results in the child being exposed to adult conflict. The incident of February 3, 2022, is further evidence of the fact that the arguments between the parents go well beyond the arguments that ‘all couples do.’ [6]

[19] Consequently, I have no difficulty in concluding that the child is at risk of emotional harm because of exposure to adult conflict.

[20] The next issue is then whether the child can be adequately protected from that harm by the terms and conditions of an interim supervision order. In my view, it can. As the parents pointed out, the fact they must now live apart because of the conditions of E.M.’s release, the risk of the type of emotional outbursts that led to the Society’s concerns is much reduced. The Society has noted very few issues in relation to the parent’s access or with the quality of their care of their child apart from their emotional volatility.

[21] Therefore, the child can be returned to the care of K.T. pursuant to an interim supervision order. The terms and conditions of the order should reflect the conditions set out in the Society’s notice of motion with appropriate amendments to reflect the fact the child will be residing with K.T. and not J.W. as originally anticipated by the Society.

J. Parfett, J. The Honourable Madam Justice Julianne Parfett

Released: May 6, 2022

Footnotes:

[1] Child, Youth and Family Services Act, 2017, S.O. 2017, c.C.14, Shed.1 [2] Children’s Aid Society of Ottawa-Carleton v. T., 2000 ONSC 21157, [2000] O.J. No. 2273 at paras. 6-10. [3] Children’s Aid Society of Toronto v. C.(Y.), 2007 ONCJ 479 at para. 19. [4] Children’s Aid Society of Waterloo (Regional Municipality) v. B.A., 2004 ONSC 12742, [2004] O. J. No. 2647, at para. 52. [5] L.D. v. Durham Children’s Aid Society, 2005 ONSC 63827, 21 RFL (6th) 252, at para. 26. [6] Paragraph 24 of E.M.’s factum.