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 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.
NEWMARKET COURT FILE NO.: FC-22-1755-00
DATE: 20221021
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Children and Family Services for York Region
Applicant
– AND –
JF (Mother)
Respondent
– AND –
JE (Father)
Respondent
J. Kiang, Counsel for the Applicant
M. Polisuk, Duty Counsel (for advice)
A.Keyvani, Duty Counsel (for advice)
HEARD: October 20, 2022
Amended Ruling on custody during adjournment
a. Himel J.
[1] On October 17, 2022, the Children and Family Services for York Region (“the Society”) commenced a Protection Application (“PA”). They seek a finding that JRRE (“the son”, age 4) and ELVE (“the daughter”, age 2) are children in need of protection pursuant to Section 74(2)(b)(i),(ii) and (h), of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (“the Act”).
[2] The Society seeks an order that the children be placed in the care of the Father subject to supervision for a period of six months on terms and conditions, and that the Mother have access at the Society’s discretion (with a minimum of two visits per week). During the adjournment period the Society seeks a supervision order with the Father and access to the Mother.
[3] I find that the children cannot be adequately protected by a supervision order, and that there is no less disruptive order than placing the children in the temporary care and custody of the Society. This order is made on a without prejudice basis.
[4] I recognize that I do not have the benefit of responding materials from either of the parents, however, the Society’s evidence overwhelmingly supports the placement order.
[5] The matter is adjourned to November 21, 2022.
Background and Litigation History
[6] The parties, JF (the “Mother”) and JE the (“Father”), are the parents of two young children including the son (who has developmental and speech delays and sleep issues) and the daughter.
[7] The Mother has four other children who are not in her care. She has been involved with various child protection agencies since 2007.
[8] The Society first engaged with this family in May 2022, following a report by the maternal uncle that the Father sells marijuana. The parents denied same, and the file was closed at intake. On July 8, 2022, the doctor’s office reported that the Mother grabbed the son and shoved him into the wall, which she denied (although she admits to grabbing the child to manage his behaviour). The file was closed after a brief service.
[9] The current referral was made by York Regional Police (“YRP”) who reported the following on July 30, 2022: (a) the neighbours witnessed the Mother slapping and hitting the Father; (b) the children were present and yelled at the Mother to stop hitting the Father; (c) the Mother was arrested; (d) the Mother was observed to be intoxicated at the time of her arrest; (e) the neighbours reported that the Mother was verbally aggressive with the children, started “drinking” three months earlier and hit the Father on a daily basis; and, (f) one of the Mother’s older children was present and observed the incident.
[10] From July 30, 2022 to October 16, 2022, the Society did not commence a PA. Instead, the Society worked voluntarily with the parties (although there is no evidence that the parties executed a Voluntary Agreement). The parties now qualify for legal representation through Legal Aid Ontario, and they each intend to apply for certificates.
[11] This motion came before me on October 17, 2022 at 3:30 p.m., on an urgent basis. The parents were served shortly before that time, and each had an opportunity to speak with a duty counsel.
[12] The Society relied on the affidavit of Ms. O’Malley, the Society Supervisor (“Supervisor”). The affidavit is eighteen (18) pages single-space (in violation of the Practice Direction that requires double-spacing). Eighty-three (83) paragraphs set out incidents and interactions that took place from July 30, 2022 to October 14, 2022 (over the course of approximately 10 weeks).
[13] The Supervisor’s affidavit contains various allegations and details about recent criminal charges against the Mother. The affidavit contains significant safety concerns in respect of each parent’s ability to care for the two young children. The concerns include: Mother’s drug/alcohol use (and possibly driving while intoxicated); Mother’s admitted breach of the no contact order following the July 30, 2022 incident; both parties’ breaches of multiple safety plans; Father’s drug/alcohol use; both children missing school/daycare, the children being found walking barefoot unattended in the community; both parties’ mental health issues; Mother’s refusal to attend for treatment at a mental health hospital; the state of the home; the children’s behavioural needs and the parents’ ability to meet those needs.
[14] Upon review of the Society’s materials, I raised concerns that the proposed supervision order may not be sufficient to protect the children during the adjournment period. As there appear to be no alternate plans, I advised the parties that I would consider whether the children need to be placed in the temporary care and custody of the Society.
[15] For reasons of procedural fairness and otherwise, I directed that the Temporary Care and Custody hearing (“TCC”) be heard on October 20, 2022. A temporary safety plan was agreed to by the Father (and objected to by the Mother), being that JS (the father’s friend who is staying at the home) continue to stay at the home. The parties consented to the without prejudice terms of the adjournment.
[16] The adjournment was intended to enable the parents to provide responding materials and to provide all parties with the opportunity to strengthen the safety plan, if possible. Given the serious nature of the allegations and concerns contained in the Society’s materials, I was not prepared to delay the hearing any further. Duty counsel agreed to assist the parties to take steps to obtain Legal Aid Ontario certificates.
[17] The parties attended in virtual court yesterday, once again with the assistance of duty counsel (who supported each parent but did not argue the motion). The parties were not yet able to obtain Legal Aid Ontario certificates, however, each intends to retain counsel and to file responding material. For that reason, I dealt with the adjournment terms on a without prejudice basis.
[18] The mother supports an order that the children be placed in the temporary care of the Society and that she exercise parenting time in accordance with their requested order. The father seeks an order in accordance with the terms of the supervision order sought by the Society.
[19] The only materials before the court include the Supervisor’s affidavit and an updating affidavit of Ms. Hunt, the Child Protection Worker (the “Worker”) dated October 19, 2022.
[20] During the hearing, Society counsel provided new information as to additional supports that they hope to put into place (with third party professional providers and members of the father’s family). The Mother raised concerns about the Father’s care and the paternal family members. This new information is not properly before the court. In any event there is clearly more work that needs to be done in respect of these potential supports.
Law and Analysis
[21] This attendance comes before the court pursuant to section 94(2) of the Act, which addresses custody during adjournment. As set out in the Act and the caselaw, the onus is on the child protection agency to provide evidence that the statutory criteria are met. The test is as follows:
(a) that there are reasonable grounds to believe (on credible and trustworthy evidence) that there is a risk that the children are likely to suffer harm; and
(b) where a supervision order is sought, that it is more probable than not that the children will suffer harm being placed with the parent(s) without the terms of supervision (Windsor-Essex CAS v. B.(S.), 2007 ONCJ 288), and that the children can be adequately protected by a supervision order with conditions; or,
(c) where a temporary society care order is sought, that there are reasonable grounds to believe that the children cannot be adequately protected by a supervision order (CAS of Toronto v. T.J.-M., 2010 ONCJ 701, at para. 16).
[22] The Society’s evidence clearly supports a finding that the children are likely to suffer harm without a court order for terms of supervision or temporary society care. The evidence is based on the Society’s interactions with each of the parties as well as evidence provided by the YRP, the son’s school principal and staff, the daughter’s daycare, the neighbours, the worker from Durham CAS, the covering probation officer, and the family doctor.
[23] The Society does not seek to place the children with the Mother. The Society’s evidence is that the Mother cannot care for the children at this time. As recently as October 13, 2022, the Mother advised the Society that she is homeless and living in her car. Consequently, I do not focus my analysis on the many concerns that relate solely to the Mother, which include alcohol and substance use (involving illegal substances and controlled substances such as Percocet), mental health concerns (self-identified and as noted by the Father and the Society), her two recent partners and family violence (including physical harm to the Father, and verbal altercations with the Father, both in the presence of the children).
[24] The request made by the Society, and supported by the Father, is that the children be placed with him subject to terms of supervision. However, based on the Father’s very recent past conduct (from August to October 2022), and the Mother’s current parenting (and past parenting, which can be considered pursuant to section 93 of the Act), the children cannot be adequately protected by way of a supervision order. The Father has been the children’s primary caregiver since the Mother was charged with criminal offences (and their separation) on July 30, 2022. As set out in the Supervisor’s affidavit, the following incidents have taken place since that date:
(a) on August 7, 2022, the children were found by police walking barefoot alone on the street;
(b) on September 8, 2022, the Mother advised the Worker that she breached the no contact order and spoke with the Father directly. The Mother also reported having regular contact with the children until the prior weekend. She advised that there was no third party present (in breach of the first safety plan);
(c) for some time during August and September 2022, the daughter was not attending daycare (although the Worker has since arranged for taxis to assist);
(d) on September 9, 2022, the Father admitted to the Worker that both parties were breaching the no contact order. He acknowledged that the son had not been attending school (although he has since started school). The Father identified being overwhelmed in his role as the children’s primary caregiver;
(e) on September 10, 2022 the YRP attended at the Father’s home. They arrested the Mother for breach of her no contact conditions following an argument between the parties;
(f) on September 13, 2022, the Father advised the Worker that he wanted the Mother to return home. He asked the criminal court to “drop” her charges;
(g) on September 16, 2022, the Worker attended at the home unannounced. The Worker observed the Father stumble across the front porch. The support person, JS, was observed holding a box of beer. The Father stated that he drank one or two beers and was fine. He also admitted to taking Lorazepam;
(h) on September 23, 2022, the family doctor reported that he has concerns about the Father and does not know what to do. The doctor believes that the Father is in need of support and guidance;
(i) on September 23, 2022, the covering probation officer advised that the Father had “lifted” the non-association condition. As such, the Mother would be able return to the home. He reported three incidents of family violence since April 2022, and considerable involvement of the police;
(j) on September 23, 2022, the Mother advised the Worker that the Father tried to “beat up” the Mother’s then boyfriend (which he denies);
(k) on September 28, 2022, the Father texted the Mother that he was sharpening a knife and that he would “miss she and the children.” YRP transported the Father to Southlake Regional Health Centre for an assessment. He denied concerns of self-harm and was released;
(l) on October 11, 2022, the school reported that the son was not at school. The principal attended at the home. The Father was sitting outside and looked as though he was covered in vomit;
(m) on October 11, 2022, the Father admitted to sending messages to the Mother that he wanted drugs (allegedly to get her to admit that she is using drugs);
(n) on October 11, 2022, YRP attended at the home and the parties were engaged in a verbal altercation. The police confirmed that the Father texted the Mother that he was bleeding to death and was withdrawing off of drugs. He denied self-harm but admitted to a paper cut. He admitted to looking for access to methadone. The Father was coaching the daughter to tell the Mother that she is not the real “mommy.” The Father was taken by ambulance to the hospital to address his back pain and the children remained with JS;
(o) on October 12, 2022, the Worker attended at the home and observed that the children were not at school and daycare (and noted the concern about missed school). The home and the children were dirty. The Father acknowledged that he was struggling as a single parent to a 2 year-old and a 4 year-old (with developmental delays). He agreed to accept the Family Intervention Worker (“FIT Worker”). The Father stated that JS was back in the home;
(p) on October 12, 2022, the Mother sent the worker 28 screenshots of messages which included: the Father’s request that the Mother come home and stay the night, that he needed something to “take the pain away” as no one had “weed”, that the daughter was going to the doctor for an allergic reaction and that he was drinking; and
(q) on October 13, 2022, the son’s school staff reported various concerns, including: the need for them to do welfare checks on the child; the children having increasing levels of uncleanliness; the Father not having a phone; and, reports by the neighbours of drugs going in and out of the home. The staff also reported the suspicion that the Father is using substances based on his presentation at drop-off and pick-up.
[25] Throughout this time the Father sent inappropriate and worrisome text messages to the Mother (regarding self-harm and seeking drugs), which he attributes to his desire to provoke her and to encourage her to admit her own drug use. The Father repeatedly stated that he would stop sending these messages, yet they continued. The Father states that he recognizes the impact on the children of being present during verbal altercations, yet he continues to request and permit the Mother to return to the home. These interactions lead to further arguments, yelling and the involvement of YRP. The Father’s statements that he will stop these behaviours are not reliable.
[26] There are two highly vulnerable children. The son has developmental, speech and sleep issues. The daughter is only 2 years of age. The children have missed approximately two weeks of school and daycare (in the past seven weeks).
[27] The parties consistently engage in high conflict and abusive interactions, and they do not follow the Society’s directions about having third parties present or the need to avoid conflict. No meaningful steps have been taken to respond to the protection concerns, yet the Society seems open to the parties’ plan to reconcile. The parties’ agreements to protect the children from conflict and to comply with safety plans are not reliable.
[28] The Supervisor’s affidavit contains considerable evidence that both parties suffer from substance abuse and mental health issues that remain unaddressed and untreated.
[29] The fact that neither child has suffered physical harm is a function of good luck, not appropriate parenting nor appropriate oversight by the Society.
[30] It is abundantly clear that this family is in crisis. I am very concerned about the risk of emotional and physical harm to the children.
[31] The proposed terms of supervision are unrealistic and may be breached by the Father (and the Mother) given his feelings of being overwhelmed, his arthritis (back pain) and the breaches of various safety plans. Some of the proposed terms of supervision require the Father to:
(a) refrain from exposing the children to adult conflict;
(b) ensure that the Mother is not left unsupervised with the children, unless pre-approved by the Society;
(c) appropriately supervise the children at all times;
(d) not supervise the Mother or permit her to have parenting time until otherwise stated by the Society;
(e) ensure that the children attend daycare and school unless they are sick;
(f) manage his physical health and follow through with recommendations.
(g) follow the Society’s service recommendations for himself and the children;
(h) refrain from the use of alcohol or illicit substances while in a caregiving role; and
(i) ensure that no other person in a caregiving role uses alcohol or illicit substances while in a caregiving role.
[32] While the Father may have some support from JS (which formed part of this week’s safety plan), it is unclear when he has/had not resided at the home. There is no evidence about the form, quality, or amount of parenting support that JS can provide. There is also no evidence as to what JS has observed or what steps he has taken to protect the children. I note that JS was part of a safety plan that both parents negotiated on September 23, 2022. The parents agreed that JS would be present when the Mother attended at the home that Saturday and Sunday, to ensure that there was no conflict. However, on September 26, 2022, the Mother informed the Worker that she had kicked JS out of the home that weekend. I do not accept that JS can provide sufficient parenting assistance to mitigate the child protection concerns.
[33] On October 19, 2022, the Worker filed an updating affidavit stating that the Society has arranged for a third party to provide support on Mondays and Wednesdays from 4:30 p.m. to 7:30 p.m. The Society is attempting to find other agencies to provide additional in-home parenting support. The Society also intends to contact York Support Service Network, and to contact the son’s prior daycare to follow up on recommended services. The Society also intends to follow up with daycare and the school to find out if they offer after-school care. The Society will arrange for someone to clean the Father’s home.
[34] The updating affidavit describes a meeting that took place with the Father, the Worker and the FIT Worker on October 18, 2022. The Father asked if he is permitted to use marijuana as he is unable to obtain his prescribed injectable medication for arthritis. He intends to obtain a letter from his doctor regarding usage for medicinal purposes.
[35] The Father informed the Worker that his mother and aunt are not sources of parenting support as they are estranged (although the Worker reached out to them this week). The Society proposes to involve neighbours as potential supports (although some neighbours recently advised the school staff that they no longer want to be involved). These initiatives, if available, may provide some further assistance for the Father.
[36] The newly proposed supports may have been sufficient to protect the children at the early stage of the Society’s involvement, and it is unfortunate that they were not previously put into place. However, these supports do not address the serious nature of the protection concerns (stemming from the incidents and issues) or father’s current ability to care for the children in the evenings, overnight and on weekends.
[37] For all of the reasons set out above I am not satisfied that the Society’s plan, to place the children with the Father pursuant to terms of supervision, will adequately protect the children from harm during the adjournment period. There are serious concerns about each parent’s current (and recent) ability to care for the children. The Society’s proposed safety plan (and the parents’ breaches of multiple safety plans) fails to provide the court with sufficient confidence that the children can be satisfactorily protected.
[38] As there is no other family/kin plan before the court, section 94(2)(c) is not applicable.
[39] I find that there is no less disruptive order than to place the children in the Society’s temporary care, on a without prejudice basis, during the period of the adjournment.
Order to Go
In accordance with section 94(2)(d) of the CYFSA, there shall be a temporary without prejudice order that the children be placed in the care and custody of the Society.
Each parent’s access shall be at the Society’s discretion as to frequency, duration, location, access supervisors and level of supervision. There shall be a minimum of two visits for per week for each parent. Each parent shall confirm his/her attendance at visits a day in advance as agreed upon between him/her and the Society/the access supervisor (when they are approved).
No third party shall supervise either parent’s access before being pre-approved by the Society.
Each parent shall participate in random urine screens for alcohol and substance use, as directed by the Society.
The matter is adjourned to November 21, 2022 at 9:30 a.m. The parents’ responding materials may be served and filed by November 16, 2022. The Society may file a further and brief updating affidavit by November 18, 2022. All materials shall be double space and font 12.
Justice A. Himel
Date: October 21, 2022