Family and Children’s Services of Renfrew County v. N.N. and B.N.
COURT FILE NO.: 21-231
DATE: February 10, 2022
WARNING
This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Family Services Act, 2017, which deals with the consequences of failure to comply, read as follows:
87(8) Prohibition re identifying child — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.
(9) Prohibition re identifying person charged — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.
142(3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
SUPERIOR COURT OF JUSTICE – ONTARIO
BETWEEN: Family and Children’s Services of Renfrew County v. N.N. and B.N.
BEFORE: Honourable Mr. Justice Martin James
COUNSEL: L. Blanchet, Counsel for Family and Children’s Services of Renfrew County R. Singh, Counsel for N.N. M. IIie-Draga, Counsel for B.N.
DATE HEARD: January 11, 2022
ENDORSEMENT
James J
[1] This endorsement is in response to a temporary care and custody motion under the Child, Youth and Family Services Act (CYFSA).
[2] The respondents have been involved in court proceedings respecting custody and access for their six year old daughter, A.N., in both Canada and the United States for the last four years. The involvement of Family and Children’s Services of Renfrew County (“FCS”) is just one chapter in the ongoing litigation.
[3] N.N. is A.N.’s mother. She resides in the Commonwealth of Virginia and is a former member of the U.S. military.
[4] B.N. is A.N.’s father. He is a soldier with the Canadian Forces stationed at Garrison Petawawa.
[5] Very briefly, the parties were married in the United States in December, 2014 while B.N. was on leave. The parties planned to move to Canada but N.N. was refused entry into Canada due to her criminal record. A.N. was born in Virginia on […], 2015. B.N. took a parental leave and lived in Virginia until August, 2016 when he returned to duty in Petawawa.
[6] The parties separated in or about the month of November, 2016.
[7] In or about the month of March, 2017, as a result of a child protection investigation in Virginia, A.N. was temporarily placed in the care of her father in Petawawa, Ontario with the consent of N.N.
[8] After a few months, B.N. decided that he was not prepared to return A.N. to her mother’s care, claiming that there was insufficient evidence that N.N. had addressed the concerns that had motivated the Virginia Child Protection Service to take action initially. This was followed by proceedings in both Canada and the United States.
[9] In 2017 B.N. commenced a custody and access proceeding in Ontario seeking sole custody of A.N. This matter was stayed when N.N. brought an application for A.N.’s return to the United States under the Hague Convention.
[10] The proceeding under the Hague Convention was heard in the Superior Court of Justice for Ontario in July, 2019. Fraser J. noted that A.N. was then nearly 4 years old and had been living with her father in Canada for over 2 years. Justice Fraser found that A.N. was habitually resident in the United States but was “now settled” in Ontario and that there were no compelling reasons why the status quo should be disrupted. She held that custody and access should be determined in Ontario and dismissed N.N.’s application for the child’s return to the United States under the Hague Convention protocol.
[11] Following the decision of Fraser J., B.N. reactivated the family law proceeding in Ontario and requested an order for sole custody of A.N. from the Superior Court of Justice.
[12] N.N. was able to enter Canada to attend a family law case conference in Pembroke, Ontario on February 6, 2020. A temporary, without prejudice consent order was agreed to at a case conference that provided for A.N. to remain in Canada in the care of her father, with specified access for N.N. together with various procedural measures. The consent order also included a provision whereby N.N. agreed that A.N. would not be removed from Canada without an order or her father’s permission.
[13] Contrary to the terms of the order which had just been agreed to, N.N. surreptitiously took A.N. back to the United States.
[14] As a result of A.N.’s removal to the United States, B.N. brought another Hague Convention proceeding, this time in the United States wherein he was the applicant.
[15] In August, 2021 Justice Stephen Cullen of the United States Federal Court ordered that A.N. be returned to Canada with or without her mother and endorsed Fraser J.’s determination that custody and access should be resolved in Ontario. This decision was subsequently upheld on appeal.
[16] FCS became involved as a result of a notification from Canadian Border Services on August 21, 2021 that N.N. and A.N. were at the border intending to enter Canada but that N.N. had been denied entry. Given that Justice Cullen had ordered A.N.’s return to Canada with or without her mother, A.N. was placed in her father’s care in Petawawa where she has remained since that time.
[17] In the context of this child protection proceeding, competing plans of care have been filed by both N.N. and B.N.
[18] Section 94 of the CYFSA provides that A.N. is to be returned to her mother’s care unless the court is satisfied that there are reasonable grounds to believe that A.N. is likely to suffer harm and cannot be adequately protected by terms of supervision. The court shall also consider whether it is in the child’s best interests to place the child in the care and custody of a relative.
[19] I have concluded that A.N. should not be returned to the temporary care and custody of N.N. for the following reasons:
a. N.N. cannot enter Canada at this time so returning A.N. to her mother’s care effectively means returning A.N. to the United States;
b. N.N. has experienced significant trauma and mental health challenges but has not engaged with child protection authorities in Ontario regarding the status of treatment;
c. N.N. continues to repeat allegations of child abuse by B.N. that have been investigated and dismissed by multiple agencies;
d. FCS is concerned by evidence of parental alienation behaviour by N.N.;
e. N.N. previously took A.N. to the United States surreptitiously and cannot be counted upon to voluntarily return A.N. to Canada. This places A.N. at a high risk of losing contact with her father which would be harmful to her;
f. To return A.N. to her mother’s care in the United States would ignore that A.N. came to be in the United States as a result of her mother’s unilateral and illegal actions;
g. A.N. is well-established with her father and his family in Ontario, and,
h. FCS does not have corresponding relations with the child protection authorities in the State of Virginia so the imposition of enforceable terms and conditions would be problematic.
[20] The evidence satisfies me that placing A.N. in the temporary care and custody of B. N. is the least intrusive alternative available at this time that is consistent with A.N.’s best interests.
[21] In the result, the court makes the findings set out at para. 61 of the FCS factum.
[22] In addition, an order shall issue placing A.N. in the temporary care and custody care of B.N. under the supervision of FCS subject to the terms and conditions set out in the FCS factum at paras. 62 and 63.
Justice M.S. James
Date: February 10, 2022