COURT FILE NO.: FC-15-118-02
DATE: 20220203
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Durham Children’s Aid Society
Allison McGregor, for the Applicant
Applicant
- and -
G.S.
David Tobin, for the Respondent mother
Respondent mother
T.A.
Sandra Grant, for the Respondent father
Respondent father
HEARD: January 27, 2022
RELEASED: February 3, 2022
JUSTICE ALEX FINLAYSON
PART I: NATURE OF THIS DECISION
[1] This is my decision respecting the Durham Children’s Aid Society’s (the “Society”) temporary care and custody motion about an 8-year old girl named G. Between December 29, 2021 and mid-January, 2022, G. made a number of statements that her father had touched and kissed her in a sexual manner, used physical discipline and otherwise behaved inappropriately towards her. The child also reported that her father had been making her feel uncomfortable during parenting time. The child made various statements to the mother, to a child protection worker with the Society, and after the worker initiated a joint investigation with the police, to a police officer with the Durham Regional Police Service.
[2] On January 10, 2022, Erika Ibbotson, the Society’s Family Services Worker – Intake, told the father that he could not exercise his parenting time with the child according to the governing week about schedule because of the ongoing police investigation. She sought his consent to suspend his parenting time. The father agreed to suspend for one day only. Whether that limited one-day consent was validly obtained is now disputed, as is the legal effect of Ms. Ibbotson’s words to the father, specifically whether they amounted to a removal of the child from his charge.
[3] Eight days later on January 18, 2022, the Society commenced this proceeding and brought a motion for a temporary Order. The Society’s Notice of Motion was framed as a request for a joint placement with the parents, but that is not what was being asked for. The Society really wanted the Court to make an Order that the child remain with the mother, and that the father’s parenting time be suspended, just as Ms. Ibbotson had said on January 10, 2022. For reasons that I explained in a written decision subsequently released on January 24, 2022 (see DCAS v. G.S., 2022 ONSC 547), I granted that order on a temporary without prejudice basis but brought the matter back before the Court on January 20, 2022.
[4] On January 20, 2022, the Society changed its position and said that the father could have supervised visits with the child. I made a new temporary without prejudice Order along those lines and adjourned this temporary care and custody motion to be argued on January 27, 2022.
[5] The Society now seeks an order on a “without prejudice basis” placing the child in the joint care and custody of both her parents pursuant to section 94(2)(b) of the Child, Youth and Family Services Act, 2017, subject to Society supervision on various terms and conditions. This order, if granted, would basically restore the previous week about schedule that the parents had been following.
[6] The Society’s current position is based in part on submissions that this is the least intrusive intervention. It is also based on statements about the child’s views and wishes. The Society says it wants to “test drive” a particular safety plan that it developed in the week before the motion was argued on its merits, while it “fine tune[s]” the terms and conditions of a service contract. It seems the Society intends to seek the Court’s permission to withdraw the application in the near future.
[7] Although there was some indication at the outset of argument that the parents might be in agreement with this course of action, it became clear over the course of the motion that both parents disagree with the Society’s position, for different reasons.
[8] The Society brought this matter before the Court in a very problematic fashion as I explained in the written decision released January 24, 2022: see DCAS v. G.S., 2022 ONSC 547. As a result, there is now a significant dispute about whether this Court even has the jurisdiction to hear this matter. The father’s position, which includes arguments about jurisdiction, is three-fold.
[9] The father’s first argument is the jurisdictional one. The father says that the Society effectively took the child to a place of safety at least as of January 11, 2022, and perhaps even on January 10, 2022. He says the Society did not then bring the matter before the Court within 5 days as it ought to have. He also argues that the Society treated him unfairly in numerous ways. This includes the Society’s decision to withhold evidence from him (and the Court) when it first brought the matter to Court, a finding I already made in the written decision released January 24, 2022: see DCAS v. G.S., 2022 ONSC 547.
[10] The father’s second argument is that the protection application should be withdrawn. The father says he is prepared to work voluntarily with the Society. Both he and the Society told the Court that a draft voluntary service agreement is being prepared.
[11] The father’s third argument is that the Court should order some of the terms and conditions proposed by the Society. He does not agree that his parenting time needs to be supervised as argued by the mother, discussed below. He submits that the mother is involved in the child making the statements.
[12] The mother has re-partnered with another man in Florida. The father submits that the timing of the child’s statements is suspect, since the mother otherwise has a Motion to Change before this Court, to vary the governing Order of Nicholson J. dated December 20, 2018 that contains a shared parenting plan, to permit her to relocate with the child to Florida. In fact, the mother was with the child in Florida for a vacation during the Christmas holidays, when the child’s statements were reported for the first time.
[13] The mother initially presented as being in agreement with the Society’s plan. However, her counsel advised that she is in a difficult position. The mother does not want to be seen as having coached the child, a dynamic that may have been an issue in the past.[^1] But she feels the child will not be adequately protected pursuant to the Society’s current proposal. The mother’s position, fleshed out in argument, is that the father’s visits must continue to be supervised to protect the child.
[14] Based on the record before the Court at this time, I find:
(a) The Court has not been deprived of jurisdiction, notwithstanding the timing of the Society’s application;
(b) Nevertheless, the Society inserted itself into the operation of a Court Order. As such, it was incumbent on the Society to bring this matter before the Court asap. It did not do so. But the remedy for this is not a dismissal in this case;
(c) This is the Society’s protection application, not the father’s. The father cannot ask the Court to order that the Society’s protection application be withdrawn. Only the Society may make that request. The parents may then either consent or oppose. The Court must then decide the application according to the governing legal principles. There is no proper request for leave to withdraw before the Court at this time. This request for a withdrawal by the father is not a remedial option that is available on this motion;
(d) The Society’s proposed temporary order is inadequate to protect the child at this time;
(e) The father’s visits must continue to be supervised for now;
(f) It is desirable to appoint the Office of the Children’s Law within the meaning of section 78(4) of the CYFSA;
(g) There needs to be an appropriate and qualified mental health professional involved with this family;
(h) The Court is issuing additional directions to the parties about its expectations for the next appearance and about next steps; and
(i) The Court is not inclined to make another “without prejudice” order as asked by the Society. The Order the Court is making is a temporary order. Such an Order is capable of being varied on a temporary basis in accordance with the governing legal principles, when the work to be done is underway and/or if and when new information comes to light.
PART II: BACKGROUND
A. The Parents Each Had Charge of the Child Prior to the Protection Application
[15] It is not disputed that the parents each had “charge” of the child within the meaning of section 94(2) of the CYFSA when the Society brought this protection application. See Children’s Aid Society of London and Middlesex v. S.D., 2008 CanLII 49155 (ON SC), [2008] O.J. No. 3796 (S.C.J.) paragraph 20-32.
[16] The parents have “joint custody” (now decision-making responsibility) of G. pursuant to the Order of Nicholson J. dated December 20, 2018. Nicholson J.’s Order is 10-pages long. It contains detailed terms about decision-making, parenting time, the sharing of information, relocation and travel. There are also several paragraphs of parenting principles to which the parents consented.
[17] The schedule in Nicholson J.’s Order provides for a particular schedule of equal parenting time. In June 2019 the parents altered that informally, and have instead been following a week about schedule, but it is still equal time. Both parents were also actively involved in the parenting of G. [^2]
B. The Mother’s Motion to Change and the December, 2021 Motion to Travel with the Child to Florida
[18] I am told that the mother commenced a Motion to Change the Order of Nicholson J. dated December 20, 2018, earlier in 2021. I have not yet seen the Motion to Change but I am told that the mother is seeking to relocate with the child to Florida following her marriage to a man who lives there.
[19] The evidence now before the Court is that the mother re-partnered with the man in Florida soon after previous protection proceedings came to an end. She has been asking the father for permission to relocate with the child since about 2019. The father has not agreed to the move.
[20] The mother brought an interim motion, within her Motion to Change, to travel with the child to Florida over the Christmas holidays in 2021 and into 2022. In the result, the parties agreed to the trip on terms. Their consent is memorialized in the temporary Order of Hughes J. dated December 10, 2021.
[21] The child then travelled to Florida on December 26, 2021 and came back to Ontario on January 7, 2022. It is agreed that the child was supposed to be with the father during the week of January 10, 2022, according to the regular week about schedule. However, the child was unable to go to school that week due to the rules surrounding travel and the Covid-19 pandemic, as she had been out of the country the week before.
[22] Paragraphs 8 and 9 of Hughes J.’s Order provide that upon the father’s request, the mother would care for G. during the days that otherwise fell on his week, while the father was at work. This was to happen until the child was able to return to school following the trip. In any event, the child was still to have been with her father in the evenings and for the overnights under this temporary modification to the regular schedule, when the Society first told him that he was not allowed to have the child due to the police investigation.
C. The Events Leading Up To The Commencement of This Proceeding
[23] The Court now has additional affidavit evidence before it, as compared to the state of the record on January 18, 2022 and even on January 20, 2022. The totality of the evidence reveals the following.
[24] The child travelled to Florida alone on the plane on December 26, 2021. The father says he was unaware that the child would be travelling alone. His counsel argued that the mark on the child (referred to below) could have been caused during her plane travel.
[25] On December 29, 2021, the mother telephoned the Society to report concerns of a “mark” on the child’s neck. She spoke to an intake worker. The mother told her that she followed the “protocol” in their Children’s Law Reform Act order and took the child to the hospital. [^3] The hospital visit occurred on December 26, 2021, the very day that the child arrived in Florida.
[26] On January 4, 2022, the Society received a call from a worker with the Department of Children and Families in Florida. That worker reported that the child had been seen at the Florida Putnam Medical Center on December 26, 2021. A doctor of that hospital reported a “concerning mark” to the Department.
[27] A police report authored by an officer with the Palatka Police Department in Florida (discussed further below), attributes to the doctor an opinion that the discoloration on the child’s neck was consistent with a “hickey”. The police report also states that the child was going to be sent to the Shands Hospital in Gainesville, Florida, for further examination.
[28] Ms. Ibbotson, was assigned to this case on January 10, 2022. By that point the child was back in Ontario. As I understand it, Ms. Ibbotson was not involved with the family during the prior proceedings.
[29] Ms. Ibbotson interviewed the child in the mother’s home on January 10, 2022. Ms. Ibbotson then consulted with the Durham Regional Police to initiate a joint investigation.
[30] The same day, Ms. Ibbotson told the father he could not have contact with the child because of the police investigation. She did not share the details of the allegations with him.
[31] Initially the father did not consent to the suspension of his time. However, he then provided his “consent” for a “one-day reprieve to the CLRA order”, as Ms. Ibbotson told him that there was going to be some additional contact with the police the next day.
[32] Ms. Ibbotson sent the father a text message telling him he had “the right to obtain a legal consult regarding his consent”, after the fact of having already elicited it.
[33] The child was interviewed by a Detective with the Durham Regional Police Service on January 11, 2022. On January 11, 2022, Ms. Ibbotson told the father that there was going to be an ongoing police investigation. She told the father that the Society would be bringing forward a “temporary protection application”. She told the father that the child had been interviewed already.
[34] According to Ms. Ibbotson, the father said he wanted to clear his name. This time, Ms. Ibbotson provided the father with information about how to get 30 minutes of free legal advice. She still did not share with the father the details of the allegations at that time or at any time until this matter came before the Court. Even then, the Court and the parties were not given the details for a further two days.
D. The Conduct of these Proceedings
[35] What transpired when this matter first came before this Court on January 18, 2022 is more fully set out in DCAS v. G.S., 2022 ONSC 547. In summary, one of the grounds upon which the Society seeks a finding that the child is in need of protection in the application is based on a risk of sexual abuse or exploitation by the father. Ms. Ibbotson’s first affidavit sworn January 17, 2021 (she has since filed three more affidavits) purports to set out this family’s history with the Society, but there were many gaps in that evidence. It also provides a vague summary that the child had been taken to the hospital in Florida with a “mark” or a “concerning mark” and it says that various unnamed persons from the hospital and a local Florida child welfare agency called the Society. By Ms. Ibbotson’s affidavit, the Society told the Court (and the parents) that there was an ongoing police investigation and so the Society would be “withholding the information until the joint investigation is completed”. The Society is not authorized to do that.
[36] On January 18, 2022, I admonished the Society for having withheld evidence. I adjourned the matter for two days and directed the Society to cure the defects in the affidavit material. I made an order placing the child in the care of the mother and suspended the father’s parenting time until January 20, 2022.
[37] By January 20, 2022, the police investigation was over and the Society agreed to serve a more fulsome affidavit. After hearing from counsel, I adjourned the matter further to January 27, 2022 to permit the parents to respond, I continued the placement with the mother on a temporary without prejudice basis and I permitted the father to have parenting time, supervised by persons approved by the Society. I now understand that the supervisors subsequently approved include certain family members and the father’s girlfriend.
[38] On January 20, 2022, the parents and the Court were also informed that the father would not be charged. I do not know the basis for that decision. According to the mother, the Detective advised that the father would be “given a formal warning not to engage in sucking [the child’s] neck or pinching her breasts or watching her in the shower.”
PART III: ISSUES AND ANALYSIS
A. Did the Court Lose Jurisdiction Because the Society Did Not Bring This Matter Before the Court Within Five Days of Taking the Child to a “Place of Safety”?
[39] The father argues that Ms. Ibbotson’s words on January 10, 2022 and January 11, 2022 telling him that he could not have the child in his care per the parenting schedule amounted to the child being removed and taken to a “place of safety”, in effect. The father says that the Society was therefore required to bring the matter before the Court within five days, but it did not. He says the matter did not come before the Court for at least seven and possibly eight days. He says that the one-day consent to suspend his parenting time given on January 10, 2022 was not a valid consent within the meaning of section 21(2) of the CYFSA. Even if it was, the time between January 11, 2022 when the consent ended, and January 18, 2022 was more than five days: see Children’s Aid Society of Toronto v. A.H., 2017 ONCJ 265. Therefore, this Court is without jurisdiction to hear this matter, and the protection application should be dismissed.
[40] The Society agrees that the matter did not come before the Court within five days. However, it says Ms. Ibbotson’s words did not amount to the Society taking the child to a “place of safety”. The child was already in the mother’s care on January 10, 2022 and the Society says there was no actual removal. The Society also argues that the mother’s home does not qualify as a “place of safety”. Moreover it says that a parent’s home has “never” been designated as a “place of safety”, and that cannot be done. Therefore the Court is not deprived of jurisdiction, because there was no removal, the child was not taken to a “place of safety”, and the five day rule does not apply.
[41] The mother supports the Society’s position, in that she says the child was not taken to a “place of safety”. Counsel did not necessarily agree that the Society cannot designate a parent’s home as a “place of safety” though. Mother’s counsel submitted that a generous read of the legislation, in keeping with its objectives, suggests that this may in fact be done.
[42] I note at the outset that arguments proceeded on the assumption that a breach of the five day rule, if it applies, results in this Court losing jurisdiction. No one really argued whether a breach of the five day rule automatically causes the Court to lose jurisdiction, whether the five day timeline may be extended, or whether a decision to dismiss for failing to come before the Court in time, or not, is a discretionary as opposed to a mandatory decision of the Court.
[43] Ultimately though, I do not find that this Court is deprived of jurisdiction. My conclusion flows from my answers to the following questions:
(a) May a parent’s home be a “place of safety”? In my view, the answer is yes;
(b) Are the words of a child protection worker sufficient to cause a child to be taken to a “place of safety”? Or when the child is already in the safe place pursuant to a particular rotation in a parenting schedule, is some other action or physical step required to cause that child to be taken to a “place of safety”? In my view, words alone can suffice, and no physical act of removal is required; and
(c) Was the child taken to a “place of safety” in this case? In my view the answer is technically no. That is a function of the Society’s misunderstanding of these principles and its failure to do what it ought to have done pursuant to the CYFSA. There are other remedies available short of a dismissal in the circumstances.
[44] Despite my answer to (c) on the unusual facts of this case, I wish to be clear that the Court does not condone the Society directing the suspension of a parenting Order without then acting diligently. The Society does not have unfettered authority here. I will now explain these findings.
(1) The Applicable Legal Framework in Which These Questions Arise
[45] A child under 16 may be taken to a place of safety with or without a warrant[^4]. Alternatively, an applicant (usually, although not always a Society) may bring a protection proceeding and claim an order at a hearing pursuant to section 90(1). A removal is not a precondition to a hearing under section 90(1).
[46] Section 81(7) authorizes a child protection worker to bring a child under 16 to a “place of safety” without a warrant if he or she believes on reasonable and probable grounds that there would be a substantial risk to the child’s health or safety during the time necessary to bring the matter on for a hearing under section 90(1) or to obtain a warrant. If the Society decides to take a child to a “place of safety” on this basis, one of five things must be done very quickly thereafter. For the purposes of this case, two of those things are worthy of mention. Section 88 states that “as soon as practicable, but in any event within five days after a child is brought to a place of safety under section 81”, the child must be returned to the person who last had charge of her, or the matter must come before the Court for a child protection hearing under section 90(1).
[47] If a Society just brings a matter before the Court pursuant to section 90(1) without first effecting a removal, there is no five-day rule. And in fact, in some instances where there has been no removal, it will often be more fair for a protection proceeding to be brought before the Court in a less rushed manner: see for example Nogdawindamin Family and Community Services v. A.K., 2021 ONCJ 394.
(2) Whether the Mother’s Home May Be A “Place of Safety”
[48] I heard much argument about the definition of a “place of safety” and whether the mother’s residence qualifies. A finding that the mother’s home is not a “place of safety” likely ends the father’s challenge to jurisdiction because this matter is then just a straight application under section 90(1) without a prior removal and without the five day requirement.
[49] A “place of safety” is defined in section 74(1) of the CYFSA. This definition is confusing. It cross-references two other sections of the CYFSA and certain definitions. A “place of safety” means a foster home, a hospital, a person’s home that satisfies the requirements of subsection (4) or a place or one of a class of places designated as a place of safety by a Director or local director under section 39, but does not include a place of temporary detention, of open custody or of secure custody.
[50] The mother’s home is not a hospital or a foster home. The issue in this case is whether the mother’s home qualifies as “a person’s home that satisfies the requirements of subsection (4)” or “a place… designated as a place of safety by a Director or local director” under section 39.
[51] Section 74(4) says that for the purposes of the definition of “place of safety”, a person’s home is place of safety for a child if the person is a relative of the child or a member of the child’s extended family or community, and a society has conducted an assessment of the person’s home in accordance with the prescribed produces and is satisfied that the person is willing and able to provide a safe home environment for the child [my emphasis added].
[52] The terms “relative” and “extended family” are both defined in section 2(1) of the CYFSA. A “relative” means a grandparent, great-uncle, great-aunt, uncle or aunt, including through a spousal relationship or adoption. “Extended family” means persons to whom a child is related, including through a spousal relationship or adoption. A member of a child’s community is also defined, but in section 2(3). It means a person who has ethnic, cultural or creedal ties in common with the child or with a parent, sibling or relative of the child, or a person who has a beneficial and meaningful relationship with the child or with a parent, sibling or relative of the child.
[53] By contrast, a “parent” is separately defined in section 2(2), and in section 74(1). The definition in section 2(2) is tied to the child’s custodial arrangement. The definition says that unless the Act provides otherwise, a reference to parent is deemed to be a reference to the person who has lawful custody of the child, or if more than one person has lawful custody of the child, all of the persons who have lawful custody of the child, excluding any person who is unavailable or unable to be as the context requires. The definition in section 74(1) applies for the purposes of Part V of the CYFSA (which governs child protection proceedings). It is an expanded definition of “parent”. It includes the person or persons who would also be a parent or parents in section 2(2). But to those it adds those who would qualify as parents under the Children’s Law Reform Act, persons found or recognized by a court outside Ontario to be a parent, adoptive parents, and certain others. The expanded definition of parent applies for example to determine who has standing in a protection proceeding.
[54] A narrow reading of these provisions might suggest that parents are not “relatives”, members of a child’s “extended family” or members of a child’s “community” since who is a parent is separately defined. That is the interpretation that the Society took, thereby saying that it did not take the child to a “place of safety”. However, in the context of the legislation as a whole, the Society’s proposed interpretation in this case is not consistent with a child’s best interests, several of the purposes of the legislation, or the structure of the legal considerations that the Court must apply in a hearing that follows a removal under section 94(2). I make this finding for the following several reasons.
[55] Section 64 of the Legislation Act, 2006, S.O. 2006, c. 21, Schedule F, as amended states that an act shall be interpreted as being remedial and shall be given such fair, large and liberate interpretation as best ensures the attainment of its objects. Benotto J.A. also wrote in Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316 at paragraph 38 that the CYFSA is remedial legislation and should be interpreted liberally. See also Children’s Aid Society of Toronto v. J.G., 2020 ONCA 415 paragraph 31-35.
[56] In my view, it would be inconsistent with the paramount purpose of the CYFSA “to promote the best interests, protection and well-being of children” to exclude a parent’s home from locations that may be places of safety. In addition to the paramount purpose in section 1(1) of the CYFSA, there are a number of other purposes in section 1(2) too that inform the analysis. Section 1(2)(1.) of the CYFSA states that one of its other purposes, so long as it is consistent with the paramount purpose, is to recognize that while parents may need help in caring for their children, help should give support to the “autonomy and integrity of the family unit”. Section 1(2)(2.) says that the least disruptive course of action that is available and is appropriate in a particular case to help a child, should be considered. Section 1(2)(3.) says that services to children should be provided in a manner that respects a child’s need for continuity of care and for stable relationships within a family and includes the participation of a child’s parents, among others.
[57] No one suggested that there can never be a removal of a child from a parent, whether in a shared parenting situation or otherwise. The question is where does that child go upon a removal. It would make no sense that if there must be a removal from one parent in a joint charge/shared parenting situation, that the Society could not then place the child with the other parent pending the Court hearing. Where a Society feels it must intervene in a shared parenting situation, the child should not have to be subjected to a foster home or another person’s home while waiting for a court hearing and a court order placing the child with the other parent. On the subsequent hearing that would ensue within 5 days, the other parent would have priority under section 94(2). Why then if that is so, would the Society have to place the child somewhere else during the five days pending the hearing?
[58] And even where the other parent did not have “charge” within the meaning of section 94(2), why should that other parent not be considered? Pursuant to the statutory best interests test in section 74(3), the child’s ties and relationship with a parent, among other things, are important factors.
[59] I further note that a “relative” as defined in section 2(1) can also be a “parent” within the meaning of sections 74(1) (consider for example an aunt who acted in the place of a parent for 12 months). Does that mean that the aunt’s home, someone who is clearly a relative, is no longer a candidate as a “place of safety” because she has now become a parent?
[60] And why may parents not be part of a child’s extended family or community for this purpose? The definition of extended family means someone to whom a child is “related”. The definition uses the word “related”, not “relative”. “Relative” has a specific meaning in the CYFSA; “related” does not. In the ordinary sense of the word, a parent is “related” to a child. A parent is also one of the kinds of persons who are in the child’s “community”, as “community” is defined in the legislation.
[61] So while a narrow reading of these provisions might exclude a parent’s home as a “place of safety” because who is a “parent” is separately defined, these definitions must not be read in such a way as to hamstring the Society from making the best choices upon a removal in the cases that it is handling. It would be absurd for the Society to be unable to place a child with a safe and willing parent following a removal and pending the hearing, because of an inappropriately strict interpretation of the legislation. The best approach in my view is to adopt a liberal, child focused interpretation of these provisions. I therefore find that a parent’s home may be a “place of safety”.
[62] If I am wrong in that approach with respect to the first part of the definition in section 74, a “place of safety” may also be a place “designated as a place of safety by a Director or local director under section 39”. Section 39 merely says that for the purposes of Part V, a local director may designate a place as a place of safety, and may designate a class of places as places of safety. The section is unhelpful in that it provides no further guidance about what kinds of places may be designated, when designations will be made, or what criteria or procedures will be applied. Counsel provided me with no case law on these points. Counsel provided me with little to no information about when section 39 is used and how. And I was unable to find any cases myself either, whether under the CYFSA or pursuant to the comparable section in the predecessor CFSA. Both section 39 and its predecessor may have never been judicially considered before.
[63] Counsel for the Society went so far as to submit that a parent’s home has never been designated as a “place of safety”. Counsel was mistaken. I found three reported decisions where societies have designated the other parent’s home as a place of safety: see Children’s Aid Society of the County of Dufferin v. N.R., 2014 ONCJ 17 paragraph 3; see Children’s Aid Society of Haldimand and Norfolk v. K.H. and R.J., 2020 ONSC 1489 paragraph 81, 82 and 138; see also Family and Children’s Services of Lanark, Leeds and Grenville v. J.M. and P.M., 2016 ONSC 5954 paragraph 9. Justice Baker also by necessary implication made a finding that a parent’s house was a place of safety in Family and Children’s Services v. C.H., 2017 ONCJ 276, [2017] O.J. No. 2209 (Ont. C.J.) (discussed in more detail below), when she determined that similar behaviour by that society in that case amounted to an “apprehension” under the predecessor CFSA. These decisions do not say whether the other parent’s home was a place of safety pursuant to the current or predecessor version of section 39, or section 74 of the CYFSA, or on some other basis.
[64] Regardless of whether the statutory basis upon which the placements in those cases were made, taking a similar approach to the interpretation of section 39, I would also find that section 39 may also be used to designate a parent’s home as a “place of safety”. This approach best ensures the “attainment of [the CYFSA’s] objects”: see again section 64 of the Legislation Act, 2006.
(3) Are Words Alone Enough To Cause A Child To Be Taken To A Place of Safety?
[65] As I do find that the mother’s home may be a “place of safety”, the next question becomes whether the Society through its words effected a removal in this case. The Society takes the position that something more than mere words are required to cause a removal. The mother seems to agree with this, and in her written submissions points to Nogdawindamin Family and Community Services v. A.K. as standing for that proposition.
[66] However, I note the following.
[67] First, the Society’s own Plan of Care that it filed with the protection application states that the child had been removed from the respondent temporarily.
[68] Second, Nogdawindamin Family and Community Services v. A.K should not be read as standing for the proposition that mother suggested. In that case, Kukurin J. was critical of the practice of bringing motions for temporary supervision orders on short notice. There had not been a removal in that case. In my view, the mother has pointed to a quote from this decision somewhat out of context. Kukurin J. did not squarely deal with the issue now before this Court.
[69] By contrast, I note that at paragraph 130 of Children’s Aid Society of Algoma v. M.V. and M.L., 2019 ONCJ 501, Kwolek J. referred to a 2006 unreported decision of Thibodeau J., decided under the predecessor CFSA. In those decisions, Kwolek J. and Thibodeau J. described what could amount to an “apprehension”. [^5] They defined it as an action that is “incompatible with the wishes of the custodial person”. The specific facts of the case before Kwolek J. were that the children resided with the grandmother, and the custodial parent no longer agreed.
[70] In Family and Children’s Services v. C.H., Baker J. did not adopt the specific definition of an “apprehension” that Kwolek J. and Thibodeau J. adopted. However, Baker J. found that a Society worker instructing that a joint custody order was not to be followed did amount to an apprehension triggering the five-day rule.
[71] In the case before Baker J., there was an order for joint custody and a four-day rotating parenting schedule. Following certain protection concerns being raised, the Society worker directed that the child could not go to the mother’s residence for her next parenting rotation, otherwise the Society would bring a proceeding. The matter then came before the Court well after the expiry of five days. At paragraph 15, Baker J. found that suspending a person’s “court-ordered custody time with a child would amount to an “apprehension”.
[72] There are more examples of these “technical apprehensions” in the case law. See for example: Children’s Aid Society of Algoma v. M.V. and M.L., 2019 ONCJ 501 paragraph 4, 129-130; see G. (N.) c. Services aux enfants & adultes de Prescott-Russell, 2006 CarswellOnt 10335 (C.A.) paragraph 13; see Nogdawindamin Family and Community Services v. A.K., 2021 ONCJ 394 paragraph 24-27. In the G.(N.) c. Services aux enfants & adultes de Prescott-Russell decision, the Ontario Court of Appeal described a “technical” apprehension as the decision of the Society to keep a child in its care in the face of an order of the Court that required the child’s return (as opposed to a physical act of removal).
[73] Taking a similar approach to this question as I took to defining a “place of safety”, it would make no sense for there to be a requirement that the Society take some physical step to cause a removal. On a very practical level, when the child is already safe in one’s home, why must the child welfare authority wait until the child goes to other parent’s home on the next parenting rotation, only to have the worker then come and physically remove the child and bring the child back. Doing that may expose the child to harm.
[74] Words matter. I find that the words of a child protection worker may cause a removal. Whether words give rise to a removal depends both on the words spoken and upon their impact on the interests at stake.
[75] At paragraph 21 of Family and Children’s Services v. C.H., Baker J. wrote that imposing a supervised access regime on a joint custody parent with equal time sharing was a significant state intrusion into parental autonomy and independent by way of state action. I agree with her focus on the impact of the words. That is a “gross intrusion into a private and intimate sphere” see New Brunswick (Minister of Health and Community Services) v. G.(J.), 1999 CanLii 653 (S.C.C.) paragraph 61, 64.
[76] I would also turn to a criminal law principle by analogy. The Supreme Court has been clear that a detention need not involve a physical act. A detention may be psychological where there is either a legal obligation to comply, or a reasonable person believes he or she has no choice but to comply. See for example R. v. Grant, 2009 SCC 32 paragraph 31, 32. For most parents coming into contact with a child welfare worker, being told that one must agree to a suspension of parenting or there will be court action objectively falls within the latter description.
[77] In this case, the father was an equal parent pursuant to a consent Order of this Court. He was told that he could not have his parenting time, or else there would be a protection proceeding. He did not consent beyond January 11, 2022 and it is debatable whether his January 10, 2022 one day consent was valid (see section 21(2) of the CYFSA). Regardless, this is a very clear example of the father seeing himself as having no choice as of January 11, 2022. I find that Ms. Ibbotson’s words amount to a removal of the child from the father’s charge as of that date. I need not decide whether the removal actually happened the day before, since counting from either date, the Society took longer than five days to come to Court.
(4) Is This Court Deprived of Jurisdiction?
[78] At paragraph 41-45 of Family and Children’s Services v. C.H., Baker J. found that the Court was deprived of jurisdiction because the Society both “apprehended” the child and did not bring the matter before the Court within five days.
[79] In this case before me, I have found that the Society’s actions amounted to a removal and the Society did not bring this matter before the Court within five days. What the Society did was not good practice and has led to these jurisdictional arguments. It risked depriving the Court of jurisdiction. Had this Court found it lost jurisdiction, that would be a great concern. This Court is of the view that a temporary protection order is needed to protect this child at this time.
[80] However, while I find the Society effected a removal, I also find that it failed to complete the process of taking the child to a “place of safety”. The second aspect of the definition of “place of safety” in 74 and 74(4) requires an assessment of the home and the willingness and ability of the person in the home to act. Sections 45 and 46 of O. Reg. 156/18 set out what must be done prior to and after a child’s placement in a place of safety. There is no evidence that any kind of assessment was done in this case.
[81] This provision of the regulation does not apply to a designation under section 39. But obviously some step must be taken until section 39.
[82] As such, and having regard to the paramount purpose of the legislation, I will construe the Society’s failure to complete the process of taking the child to a “place of safety” in favour of the child’s best interests. I find the Society removed the child from the father and the mother’s home may be a “place of safety”, but the Society did not complete the necessary steps to take the child to a “place of safety”.
[83] The father made an alternative argument that because the mother lives with her parents, they are grandparents and so their home (the same home) qualifies as a “place of safety”. This was an alternative argument in the event the Court found that the mother’s home could not be a “place of safety”. I need not deal with it in light of my finding above. But likewise, I also note that there was no evidence that the Society undertook the assessment of that either.
[84] In conclusion, I find the Court is not deprived of jurisdiction. What this Court has before it in this case is an irregularity.
[85] Finally, even if I am incorrect about the Society’s actions amounting to an incomplete removal, I note that it is not necessarily settled whether the five-day rule is a hard and fast rule. Baker J. wrote at paragraph 41 of Family and Children’s Services v. C.H., “[i]t cannot possibly further the best interests, protection, and wellbeing of children generally, if child protection agencies operating as state agents are allowed to wilfully disregard statutory requirements”. She felt the remedy warranted was a dismissal.
[86] But it may be that a dismissal, when the five-day rule is not followed, is a discretionary remedial option as opposed to a mandatory one. As this was not argued, I leave that question for another day.
(5) What Then Is The Remedy In this Case?
[87] By not dismissing this case, I also do not wish to condone the manner and timing in which the Society brought this to Court, and the inattention to detail it paid. However, I must be guided by the child’s interests.
[88] By analogy, when a parent believes that an underlying court order should not be followed for safety reasons, that parent has an obligation to bring the matter back on before the Court anyway on an urgent basis. He or she cannot just choose not to comply and come before the Court when it is convenient, if ever. This principle should apply no differently to the Society when it feels it must get involved in a parenting arrangement, to protect a child.
[89] If in the future the Society feels the situation warrants it to direct the suspension of parenting time, it is effecting a removal and must comply with the statute. If there is an irregularity in it so doing as was the case here, it is my view that it still must come before the Court quickly.
[90] In this case, the father made a number of other arguments about the manner in which he was treated unfairly. I do not propose to comment about what other remedies the father might have had other than a dismissal, as those were also not argued. At this point, the Court has found that it has jurisdiction.
[91] The father did ask the Court to reserve costs. If the father wishes to raise any unfairness arguments further, he may do so when it comes to costs.
B. The Legal Test That Applies on This Temporary Care and Custody Hearing
[92] Again, by the time the motion was argued on January 27, 2022, the Society had changed its position and was just asking that terms and conditions be imposed on both parents under section 94(2)(b). This is a case involving a child. The Court is not bound by the Society’s position, nor those of the parents for that matter. See A.M. v. C.M., 2019 ONCA 764 paragraph 29. The Court must apply the applicable legal tests to the evidence, and make an order it feels is appropriate in the circumstances.
[93] As it pertains to the removal from the father, the Court intends to make an order under section 94(2)(c) placing the child with the mother. As it pertains to the mother, the Court intends to order terms and conditions under sections 94(2)(b) and 94(6). The Court also intends to order separate terms that pertain to the father.
[94] It is well established that at a temporary care and custody hearing involving a removal, there is a two-part test that the Society must meet. The Society must demonstrate, 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 person having charge of the child prior to the Society’s intervention, it is more probable than not that the child will suffer harm. And further, 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 CanLII 21157 (ON SC).
[95] The Court must choose the order that is the least disruptive placement consistent with adequate protection of the child as required by subsection 1(2) of the CYFSA; see also Children's Aid Society of Hamilton v. B.D. and F.T.M., 2012 ONSC 2448. The degree of intrusiveness of the Society's intervention and the interim protection ordered by the Court should be proportional to the degree of risk. Catholic Children’s Aid Society of Toronto v. J.O., 2012 ONCJ 269.
C. The Child’s Hearsay Statements
[96] Most of the evidence before the Court to which it must apply the test consists of the child’s hearsay statements. Those statements have been put before the Court through the mother and Ms. Ibbotson.
(1) The Mother’s Statements in the Report of the Palatka Police Department in Florida
[97] Again, the Society filed the police report from an officer of the Palatka Police Department in Florida. As I will explain below, there was apparently another police department in Georgia involved too, which might also have additional information.
[98] Although the police report from the Palatka Police Department contains child’s statements, the source of the statements is the mother, not the child directly. The officer did not interview the child.
[99] The officer spoke to the mother on December 26, 2021. According to the police report, the mother said that she observed “discoloration” on the child’s neck, which she initially thought was a rash or a burn mark from a hair straightener. The mother told the officer that the child would not initially speak about it. Later when she asked the child again, G. said that the father had “kissed her neck”. She said that she told the father to stop, but the father did it again with greater force than before. The child reported that the father then proceeded to “rub her breast area with his hand, and asked G. to do the same”. The officer wrote that it was unclear whether this happened outside or inside any clothing.
(2) The Mother’s Affidavit Sworn January 24, 2022
[100] In her affidavit, the mother herself also tells the Court what the child told her. The mother says that on December 26, 2021, she was getting dressed for family photographs. While getting ready, she noticed a mark on the child’s neck. She says she thought it was a burn from the hair straightener that the father had given the child for Christmas, so she asked the child about it.
[101] The mother says the child appeared to be tense when asked about the mark and covered it up. The mother asked again, and the child told her that the father was kissing her neck, that she asked the father to stop, and the father did it harder. According to the mother, the child also said that the father pinched her breasts and asked her to pinch his chest as well. The mother says the child became noticeably upset and was worried the father would find out, that the father would do it again and that he would hit her.
[102] According to the mother, the doctor from the medical center said the mark looked like a “hickey”. The “local police” came and took the mother’s statement but did not interview the child.
[103] The mother spoke to a worker with the Florida child welfare agency on December 27, 2021. The mother was at a family dinner in Georgia when this call happened. That worker wanted the mother to take the child to a local police station to do a wellness check. The mother took the child to a local police station in Georgia and a police officer there took “our information and took a picture of the child’s neck”.
(3) The Florida Putnam Medical Center
[104] According to the statement of a child protection worker in Florida said to a different intake worker at the Society, the Florida doctor described the mark on the child as “concerning”. The police report said that the doctor described the mark as looking like a “hickey”.
[105] As of the day this motion was argued, no one had yet seen a hospital report and so it is unclear what the doctor’s opinion actually was. It is also unclear what, if anything the child said to the doctor directly.
[106] At this point, what the doctor has to say is double and triple hearsay.
(4) The Child’s Statements Directly to Ms. Ibbotson
[107] On January 10, 2022, Ms. Ibbotson asked the child “truth and lies” a series of questions to help determine whether the child knows the difference between a truth and a lie. In the result, Ms. Ibbotson believes that the child knew the difference between a truth and a lie.
[108] Ms. Ibbotson says that the child disclosed numerous things that occurred in her father’s home, that made her feel uncomfortable. Ms. Ibbotson says that during the interview the child reported:
(a) that her father “watches me in the shower, I told him I wanted privacy and he would not leave”;
(b) that “he pulls back the curtain and would look at her”;
(c) that her father gives her medicine and “the medicine makes her feel very tired and I woke up without my shirt on”;
(d) that “my dad pinched my breasts and it hurt”; and
(e) that she went to the hospital in Florida because “dad was sucking my neck and when I asked him to stop he did it harder and it left a mark”.
[109] Ms. Ibbotson then stopped the interview and initiated the joint protocol between the Durham Regional Police and the Society.
[110] Ms. Ibbotson observed the police interview with the child on January 11, 2022. According to Ms. Ibbotson, some of the statements the child made to the Detective were:
(a) The father swears when he is mad or loses a game. One time the father told G. that “she is just like her f*&king mother”;
(b) The father opens her door when she is changing in her room to tell her to hurry up. When G. would ask the father to leave, she felt he is “staring at her”. This happened three times per week. This happened in the bathroom and her bedroom. The child tried to lock the bathroom door but the father has a key;
(c) The father has told the child not to tell anyone or he will hit her again. She reported one time that the father hit her across the back with a brush hard and it broke;
(d) The father once tried to force the child to drink alcohol; and
(e) The father has withheld food from her before and she believes that he is happy when she has to beg for food.
[111] According to Ms. Ibbotson, during the interview, the Detective asked the child if she went to the doctor in Florida. The child then disclosed:
(a) The father was sucking on her neck and she was saying “no, no, no” and then he sucked harder. She said this happened the last week she was with him, at his house, sitting in her room about to go to sleep;
(b) The father gives her medicine to make her go to sleep;
(c) The next morning, she woke up without her shirt on. She was on top of the covers; and
(d) She asked her father if he took her shirt off and the father said, “what are you talking about your wearing a shirt”. She said she saw her shirt in the washing machine and did not know why.
C. Analysis Respecting this Evidence
[112] This is a temporary care and custody hearing at which there is a relaxed evidentiary standard. Pursuant to section 94(10), the Court may admit and act on evidence that the Court considers credible and trustworthy in the circumstances. But as Sherr J. wrote at paragraph 13-20 of Catholic Children’s Aid society of Toronto v. R.M., [2017] O.J. No. 5128, the relaxed credible and trustworthy evidentiary standard does not mean that “everything goes in”.
[113] A determination about whether a child’s hearsay statements are reliable, or not, may impact whether the evidence meets the credible and trustworthy threshold. The assessment of reliability requires a careful analysis. It is difficult to undertake such an analysis early on in a child protection proceeding when all of the surrounding evidence has not yet been obtained. As Sherr J. said, because these cases must be brought on quickly, the evidence is often less than ideal.
[114] Not surprisingly, the mother believes the child is at risk. After her initial conversation with the child in Florida though (before they went to the hospital and then to the police station), the mother says she did not initially press the issue because the child was upset and given “our history with these issues” she did not want to cause stress for the child. She says she was also nervous about getting the child seen by too many people as the Society and the father had been “critical” of the mother taking the child to doctors in the past. But “as a result of discussions” that she had (with unnamed persons) and her understanding of “her duty to report”, the mother took the child to the hospital.
[115] Not surprisingly, the father is adamant that he did not physically or sexually abuse this child. He has specifically denied sucking on the child’s neck, although he did admit that he “playfully kissed” the child’s neck multiple times in rapid succession because she is very ticklish on her neck. He says he has never kissed her in a manner that was sexual in nature or purpose and does not know how the mark on December 26, 2021 got there. The father denies that he has ever rubbed the child’s chest in a sexual manner, or pinched her for punishment, in anger or otherwise. He denies asking the child to pinch him too.
[116] The father also denies that he watches the child in the shower. He admits that there have been times when he has pushed open her bedroom door in the morning if she has not come out of her room on time to get to school on time. He also denies the child’s other statements, including those about statements made about the mother, about medication, alcohol and about hitting her with the brush.
[117] There is some history of this family’s involvement with the Society that might be relevant to the assessment of the child’s statements. Although Ms. Ibbotson was not the worker involved with the family previously, in her affidavit of January 17, 2022, she summarized some of the prior history, I gather based on her review of the Society’s notes and records.
[118] A summary of what Ms. Ibbotson included in her affidavit of January 17, 2022 is already set out at paragraph 18 – 29 of this Court’s written decision of January 24, 2022: see DCAS v. G.S., 2022 ONSC 547 paragraph 18-29. In a nutshell, that history reveals that the mother had made past allegations of sexual abuse by the father but by 2017, the Court placed the child with the father and curtained the mother’s parenting time.
[119] In one of her two affidavits of January 27, 2022, Ms. Ibbotson now includes a number of documents referenced in the January 17, 2022 affidavit, which had not been previously included. Those documents confirm that in the previous protection proceedings, the child was found in need of protection on November 3, 2017 and placed in the care of her father subject to a six-month supervision order. According to the Statement of Agreed Facts that resulted in the 2017 finding and disposition, the family had been working extensively with Dr. Angela Fountain in reunification counselling. The mother and other members of her family continued to make allegations that the child was being sexually abused. The mother was diagnosed with major depressive disorder and anxiety.
[120] After the change in placement to the father, the mother was only allowed to have supervised access, to start. There was a detailed plan put in place for the mother’s parenting time to progress. Preconditions to the expansion included the mother supporting the child’s therapy with Dr. Fountain, and the continuing with her own counselling.
[121] The Statement of Agreed Facts also set out a protocol as to how additional complaints were to be handled. Neither party was to be involved in any interview and/or physical examination of the child without the direct supervision of the Society. The adult making the complaint was to be interviewed by the Society before deciding to move forward with an interview or examination of the child. If there was to be intervention, there was to be one dedicated worker from the Society, or a specific person at SCAN, who were to do a physical examination or further medical interview of the child. I assume these persons had prior knowledge of the history of this case. The Society was then to host a conference, with all parties and Dr. Fountain.
[122] The father will argue in this litigation that the mother was involved in having the child make the recent statements, based in part on that history. Separately, I note there were protocols put in place in the prior protection proceedings. They were not followed here. Of course, when the protection proceedings were terminated in 2019, so too was this protocol was no longer in place and the child was in Florida. But at one point in the not too distant past, the parties felt that having this detailed protocol in place was important.
[123] These arguments will have to be dealt with in due course. Right now, I find it significant that the Society, in spite of this history, is not prepared to say that the child’s statements are unreliable. During submissions, Ms. McGregor referred to the statements as concerning. Ms. Ibbotson believes in the reliability of the child’s statements. In her affidavit of January 19, 2022, Ms. Ibbotson discusses the child’s awareness of the difference between the truth and a lie, and she discusses the child’s demeanor at the police station. At paragraph 4 and 5 of one of her January 27, 2022 affidavits, Ms. Ibbotson says she has “no evidence to support the father’s belief that the mother is not “taking steps to groom, influence and/or persuade [G.] to make false allegations of sexual abuse”. She also says she cannot comment as to whether the father’s denial of having sexually abused the child is “true or false”.
[124] In short, the Society does not know. What concerns the Court is that it does not have all the facts to take the position it is taking.
[125] I agree that while a relaxed evidentiary standard is required at the preliminary stage of a case to ensure that children are protected while the investigation continues, the longer the case carries on, the more important it becomes for the Society to produce better evidence. This case is not there yet. Although the Court did not approve of the manner in which the Society handled this matter at the outset, the Court understands, on the merits, why the Society initially sought to suspend, and then supervise the father’s parenting time, in the short term. The child had made some concerning disclosures, and there was an ongoing police investigation.
[126] The police investigation since came to an end and the father has not been charged. But the Court does not yet understand why that is.
[127] Important documentary evidence has not yet been obtained and/or produced to the parents. It is my impression that the Society does not yet have:
(a) Any medical records from either hospital in Florida;
(b) Any additional documentation from the Palatka Police Department that may exist;
(c) Any documentation that may exist with the police department in Georgia; or
(d) Any records in the possession of the Durham Regional Police, including the video of the child’s interview.
[128] At this point the Court places far less comfort on the fact that the parents are working together to enter into a service contract with the Society than the Society seems to place on that factor. That is not a basis to return to the previous parenting order right now. At these very early stages, a return to the prior parenting arrangement is premature and potentially unsafe. The Society needs to obtain the missing documentation to assess properly its own case. The parents need the missing documentation, and the file disclosure from the Society, to present their positions. And the Court needs it to assess the reliability of this child’s statements, properly and fully.
[129] The Society also needs to make a decision about which protections concerns it is pursuing. That very much impacts the trajectory of the case and the services to be provided to the family. During the motion, the Society focused on emotional harm. But it has not ruled out sexual harm. If the child’s statements end up being reliable on a fuller record, then she is at risk of sexual harm. A return to a shared parenting schedule without supervision does not protect the child. If the statements end up not being reliable, then she is at risk of emotional harm, and perhaps so in the care of the mother.
[130] The only conclusion the Court may draw at this stage and based on this record is that the child’s hearsay statements to Ms. Ibbotson are sufficiently credible and trustworthy. Therefore, I find the test under section 94(2)(c) has been met. I am satisfied there are reasonable grounds to believe, that it is more probable than, not that the child will suffer harm if the child goes back to the father on a week about basis.
[131] I wish to conclude this section of the decision with reference to the least disruptive principle, cited by the Society in support of a return to the week about schedule. The least disruptive principle is a very important principle in the statute. But it is also one that must be applied in context. The child is being placed with a parent. That is less disruptive on the spectrum of interventions. I have found that supervision is required for the father. That is the least disruptive course of action pertaining to him that is appropriate in the particular circumstances of this case, right now. The Court would also point out that choosing a particular form of supervision over another, is another way that the Court may put the least disruptive principle into action.
D. The Child’s Views and Wishes
[132] Pursuant to section 94(11), the Court must 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. To this I would add that the importance of taking into account a child’s views and wishes in child protection cases (and other cases concerning them too for that matter) is well known. The first sentence in the preamble of the Child, Youth and Family Services Act, 2017 acknowledges that children “are individuals with rights to be respected and voices to be heard”. The child’s “views and wishes” are also now front and center in the statutory best interests test in section 74(3) too.
[133] The Society has relied on the child’s apparent views in taking the position that it took on the motion. But the evidence that the Court currently has about the child’s views and wishes is by no means consistent, and it may or may not be independent. For example, Ms. Ibbotson says that on January 21, 2022, the child told her that to feel safe at the father’s home, the father would have to stop yelling and being mean to her. The child told Ms. Ibbotson that on a scale of 1 to 10, with 1 being very unsafe, the child felt she was only at a 4. The child said that she wanted someone else with her for visits, she wanted to have visits for short period of time, she did not want to sleep overnight, and she wanted to have someone check in on her. In other words, she wanted supervision.
[134] Ms. Ibbotson says that she spoke to the child on January 26, 2022 “to solicit her views about how the access visit on January 23, 2022 was with her father”. The child said that the visit went well but they did not talk much. The child said that there was one point where she was “a little scared” because the father came into her bedroom and “gave her a look, didn’t say anything and then left”. She said that it made her feel safe to have someone else present for visits. In other words, she was comforted by having supervision.
[135] Ms. Ibbotson spoke to the child later in the day on January 26, 2022 on the telephone. Now the child felt safe to return to the previous schedule[^6] provided she could speak to a CAS worker, a teacher or her mother, that someone would check in on her while on a visit, that the father would not come into her bedroom or bathroom without knocking on the door and asking for permission to enter, that the father would not use physical discipline, and that he would not yell at her.
[136] This evidence about child’s willingness to return to the previous parenting arrangement, even if it was consistent, is not sufficient to mitigate the evidence of risk at this point. The Society also believes that the Office of the Children’s Lawyer is needed in this case to address views and wishes. I agree with the Society that legal representation is desirable within the meaning of section 78(4) of the CYFSA and so there will be an order appointing the Office of the Children’s Lawyer. Better evidence about the child’s views and wishes should emerge as the case unfolds and with the involvement of the Office of the Children’s Lawyer.
E. Terms and Conditions
[137] The Court has the authority to order terms and conditions in accordance with sections 94(2)(b) (as it pertains to the mother), and 94(6) (as it pertains to the mother and the father). Terms and conditions should be reasonable, proportionate and commensurate with the need shown on the evidence. They should be child and harm specific. See Children’s Aid Society of Halton Region v. J.S., 2013 ONCJ 608 paragraph 82; see also Windsor-Essx Childrne’s Aid Society v. B. (S.), 2007 ONCJ 288 paragraph 21.
[138] Some of the terms that I will order shall apply to both parents. There are some additional terms that pertain to the father only. They are geared towards this child and the risk of harm exists at this point.
[139] The Court feels it is important to comment on the Society’s request for a term respecting counselling. It is important that an appropriate professional be sourced and involved in this case. When this motion was argued, the parties all agreed there should be counselling, but at this early stage, the parties are still searching for someone to do the work. While some names had been proposed, no one had the qualifications of the proposed therapists. There needs to be more discussion with the Court about the objectives of therapy.
[140] The Court inquired of the parties as to why they are not returning to Dr. Fountain. Given what has transpired in this case, she should seriously be considered. She was involved prior to and after the finding in 2017. She was an integral part of the reintegration plan. The parties previously agreed in their 2017 Statement of Agreed Facts to involve her if there were more disclosures made. She may be ideally suited to assess this family’s therapeutic needs in the context of these new statements.
[141] The mother is opposed to Dr. Fountain because of some of their past interactions. The Society’s desire to look elsewhere is in part motivated by financial considerations. That said, Ms. McGregor did indicate during the motion that she would explore getting approval to fund Dr. Fountain in whole or in part. These objections should yield to the child’s best interests. The focus should be on sourcing the most appropriate professional.
[142] The Court will decide the issue. It cannot do so right now given the state of the record. I am setting out a process below for a decision to be made.
F. The Father’s Parenting Time
[143] The father’s parenting time is governed by sections 94(8), 104 and the best interests’ test in section 74(3). The temporary without prejudice Order that I made on January 20, 2022 provides that the father may have parenting time supervised by a person approved by the Society. I understand that the Society has approved certain family members and that the Society has permitted his supervised parenting time to take place in the home. I intend to continue an Order like that. I will give the Society the discretion as to the frequency, duration and location of the father’s parenting time during the daytime. Counsel and the Society should sort out a schedule for this to occur several times per week.
[144] I am prepared to make a further Order for parenting time on the return date if more detail is required. I am also prepared to entertain a request for overnights after hearing from the OCL, and if the supervisor can be present. During submissions, the father said he could have his girlfriend present at the home. I understand the Society has already approved her as a supervisor and the child and the girlfriend have a good relationship. However, the Court wishes to hear from the father’s girlfriend directly that she understands the basis for the supervision. The Court also wishes to hear from her as to what she views her role to be while supervising, if there are to be overnights.
G. The Society’s Request for A Without Prejudice Order
[145] If the Society wishes to draft and negotiate a service contract with the parents and then seek the Court’s permission to withdraw, the Court will consider the application based on the state of affairs at the time, the evidence, and the applicable legal principles. The Society seemed to advance the fact that a service contract is being prepared as the reason for asking for another without prejudice order. A potential out of court process is not a reason to make a without prejudice order in this case.
[146] The parties did not seek to adjourn the temporary care and custody hearing for any reason related to the proceedings in Court. The motion was argued for several hours over the entire afternoon of January 27, 2022. The parents filed responding material and the Society replied. Case law was referred to. I heard this motion on its merits and I am deciding it on its merits. The order I intend to make is being made on a temporary basis.
H. Other
[147] The mother’s Motion to Change has not yet proceeded on its merits. Any claims for parenting orders in it are now stayed as a result of this protection proceeding. See section 103 of the CYFSA.
[148] However, on consent of the parties, I will direct the trial coordinator to schedule the Motion to Change before me at the same time as when the protection application returns. The Motion to Change may then be adjourned along with the protection proceeding, so that it will follow the protection proceeding to its conclusion. I will case manage the Motion to Change when it is time to deal with it, so that there will be coordinated approach to this family.
PART IV: ORDERS
[149] I make the following orders:
(a) The Court finds it has jurisdiction over this matter;
(b) The child shall be placed in the temporary care of the mother subject to the supervision of the Society on the following terms and conditions. Except as set out herein and subject to further Order of this Court, decisions concerning the child shall continue to be made in accordance with the Order of Nicholson J. dated December 20, 2018;
(c) Both parents shall:
i. sign all releases of information relating to the health, safety, and welfare of himself or herself and the child. Each may review them with counsel prior to signing if they wish;
ii. notify the Society at least 48 hours prior to any change of address and/or telephone number;
iii. permit the Society’s worker to conduct announced and unannounced home visits, both virtual and face-to-face;
iv. meet with the Society’s worker at mutually agreed upon times;
v. ensure that there is no conflict with the other parent that would directly or indirectly impact the child; and
vi. not speak about the other parent or the other parent’s family or the ongoing proceedings in the presence of the child;
(d) The father shall have supervised parenting time with G. in the discretion of the Society. The supervision shall be done by a third party approved by the Society and the mother shall be advised by the Society of the identity of the supervisor(s);
(e) The Society has discretion as to the frequency, duration and location of the father’s parenting time, but this shall not include overnights at this time;
(f) The Court is prepared to entertain submissions for a further Order for parenting time on the return date if more detail is required. The Court is also prepared to entertain a request for overnights, after hearing from the Office of the Children’s Lawyer and if the supervisor can be present. The father should have his overnight supervisor in attendance when this is discussed;
(g) During the father’s parenting time, the father shall not enter the child’s bedroom or bathroom while she is present, kiss or touch the child, or engage in physical discipline;
(h) The Office of the Children’s Lawyer shall be appointed. I ask the Office of the Children’s Lawyer to expedite the appointment, if possible;
(i) The Society and the parents are to exchange the names and curriculum vitae of a mental health professional or professionals, information about cost and wait lists, a short summary of the mental health professionals proposed mandate, and proposed language to be included in an Order and the Court will make a further Order for counselling or some other therapeutic process on the return date. If this can be agreed to in advance, then a consent and a short summary of this information may be instead submitted by 14B Motion. The Court encourages the parties to consider reinvolving Dr. Fountain and it encourages the Society to obtain instructions respecting payment;
(j) Counsel with the Office of the Children’s Lawyer may wish to have some input into the therapeutic process and I ask counsel to consider its position on the issue of overnight parenting time referred to above, as soon as it is ready to do so;
(k) The Society shall make its best efforts to provide the parents with complete disclosure of its files within 2 weeks;
(l) The Society shall diligently take steps to obtain the missing information from the Florida hospital(s) and the two police departments and shall produce it to the parents upon receipt;
(m) The Society shall endeavour to get the consent of the Durham Regional Police for an order for the production of its files, including the tapes of the child’s interview. If there is a consent, then a motion may be filed to my attention by 14B. Otherwise, the motion may be brought on notice to the police on the return date;
(n) This matter shall return before me on February 22, 2022 @ 11 AM;
(o) The Motion to Change shall be scheduled before me on February 22, 2022 @ 11 AM also; and
(p) If costs are being sought, then the parties shall exchange Bills of Costs and the names and citations of any cases. A short summary of any argument with the cases to be relied upon may be included on pages attached to Confirmation Forms for next time. The cases may be hyperlinked.
Justice Alex Finlayson
Released: February 3, 2022
COURT FILE NO.: FC-15-118-02
DATE: 20220203
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Durham Children’s Aid Society
Applicant
- and –
G.S.
Respondent mother
- and -
T.A.
Respondent father
REASONS FOR DECISION
Justice Alex Finlayson
Released: February 3, 2022
[^1]: I make no findings about that at this time.
[^2]: To be clear, “charge” and “custody” have different meanings. Under the CYFSA, it is possible for more than one person to have “charge”. It is not necessary for the parents to have “joint custody” or equal parenting time for this to occur. These points need not be discussed further in this decision though, since it is not disputed that the parents each had charge on the facts of this case.
[^3]: I am not clear on what “protocol” she followed. There was a detailed protocol in a protection order made in the prior protection proceedings, but that order is no longer in force and that protocol was not followed. That protocol required the involvement of professionals in Ontario.
[^4]: No warrant was sought in this case. The father is also critical of the Society for this and says once should have been obtained. But as no warrant was obtained, I will focus the analysis on whether or not the Society’s actions amounted to a warrantless removal.
[^5]: “Apprehension” was the term used under the CFSA when a child was removed and taken to a place of safety.
[^6]: Mother’s counsel says a close read of this part of Ms. Ibbotson’s affidavit does not actually state that the child was prepared to return to the previous schedule.