WARNING

This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Family Services Act, 2017 , which deals with the consequences of failure to comply, read as follows:

87 (8) Prohibition re identifying child — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.

(9) Prohibition re identifying person charged — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

142 (3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)( c ) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Court File and Parties

COURT FILE NO.: FC-16-2381-2 DATE: 2023/04/21

ONTARIO SUPERIOR COURT OF JUSTICE

IN THE MATTER OF THE CHILD, YOUTH AND FAMILY SERVICES ACT , 2017, S.O. 2017, c. 14, Sched. 1

AND IN THE MATTER OF R. (DOB: [...], 2023)

BETWEEN:

Children’s Aid Society of Ottawa Applicant – and – K.T. – and – E.M. Respondents

Counsel: Mark Hecht, for the Applicant Stephen Pender for K.T. Dominique Smith for E.M.

HEARD: April 6, 2023

Endorsement

Blishen J.

Introduction

[1] The CAS of Ottawa (the Society) has filed a Notice of Motion seeking an order under s. 94 (2) of the Child, Youth and Family Services Act (CYFSA), 2017, S.O. 2017, C. 14, Sched. 1, that the baby boy R. (born [...], 2023) be placed in the care and custody of the Society pending the outcome of a protection application which requests an order for six months Interim Society Care with access to the parents.

[2] R.'s biological parents are K.T. and E.M.

[3] K.T. is a transgendered person who self-identifies as male. E.M. is a transgendered person who self-identifies as female.

[4] The Society’s primary protection concerns are the parents’ mental and emotional health as well as domestic conflict and its impact on the physical and emotional safety of children in their care. There are also ongoing concerns regarding conflict with the Society and other professionals and lack of cooperation /communication with the Society.

Background

Child – F.

[5] K.T. and E.M. were the parents of another child, F. (born [...], 2016). They attended the hospital together after the child had been born at home without any medical professional present. At the time of F.’s birth E.M. was facing a charge of assaulting K.T. and was released on conditions to have no contact or communication with K.T. but was with him.

[6] Due to concerns regarding domestic conflict and K.T.’s mental and emotional health, F. was brought to a place of safety. After a care and custody hearing, he was returned to the care of K.T. and E.M. under terms and conditions of an Interim Supervision Order (SO) on April 5, 2017.

[7] After an incident of domestic conflict on April 29, 2017, the police were involved, and K.T. was charged with assaulting E.M. He was released on no contact/no communication conditions. The Society’s Protection Agreement was amended to seek a Supervision Order to E.M. alone.

[8] Tragically on December 25, 2017, F. was found motionless in his crib by E.M. The Coroner’s Report indicated the cause of death could not be ascertained but there were no signs of neglect or child abuse.

Child- J.

[9] K.T. is also the biological parent of J. (born […], 2020). J.W. is the biological father of J. He was granted access to J. in November 2021.

[10] Since J.’s birth E.M. has considered herself a parent to him. K.T. and E.M. jointly cared for J. from his birth until his removal from their home to a place of safety on February 3, 2022, due to ongoing concerns of exposure of J. to domestic conflict culminating in an incident on February 2, 2022, when police were called to the residence due to what had been reported as a domestic dispute. E.M. was reportedly “combative” and would not allow officers to enter. The child J. was present.

[11] E.M. was charged with obstructing/resisting a peace officer and released on conditions.

[12] E.M. was also being investigated for animal cruelty offences. She was charged and on March 2, 2022, she was released on conditions including not to reside in K.T.’s home. K.T. still had animals in the home.

[13] After his removal, J. was placed with his father, J.W., and an interim w/o prejudice SO to the father J.W., was granted on February 8, 2022.

[14] On May 6, 2022, after an argued care and custody motion, Parfett J. ordered J. be returned to the care of K.T. alone under the terms and conditions of an interim supervision order outlined in the Society’s Notice of Motion, amended to reflect the child would be residing with K.T. and not J.W.

[15] Parfett J. found significant evidence the parents had not been cooperative and had been emotionally volatile and at times abusive towards Society workers. She also found as a fact that “arguments between the parents go well beyond the arguments that ‘all couples do’” and stated: “I have no difficulty in concluding that J. is at risk of emotional harm because of exposure to adult conflict.” E.M. was no longer residing with K.T. at that time due to her criminal release conditions. Therefore, Parfett J. found “the risk of the type of emotional outbursts that led to the Society’s concerns is much reduced.”

[16] Despite conditions of the interim supervision order, K.T. refused the biological father, J.W., access to J. K.T. continued to yell, name call and use profane language towards Society workers in the child’s presence. E.M. was located hiding in the closet at K.T.’s home and was arrested for breach of her release conditions.

[17] On June 22, 2022, J. was again removed from K.T.’s care and placed with his father J.W.

[18] The Society amended its protection application to request custody to J.W.

[19] K.T. and E.M. have access to J. together supervised at the Society a minimum of once a week. The quality of parenting J. during the visits as outlined in K.T.’s affidavit has been observed by Society workers to be very positive. This is not contested by the Society. In her affidavit, the Child Protection Worker notes the quality of access is “strong”. However, she deposes and provides examples of continued conflict and lack of cooperation with Society workers during visits.

[20] All E.M.’s criminal charges have been dealt with by guilty pleas or withdrawals. On October 26, 2022, she received a conditional discharge on the obstruct peace officer and breach charges and has a 24-month non-reporting probation order. The animal cruelty charges were withdrawn after she signed a Recognizance on March 3, 2023.

[21] There are no pending criminal charges and no conditions precluding E.M. from residing with K.T. or caring for a child.

[22] On October 18, 2022, the Society argued a motion for an order that the Ottawa Police Service (OPS) produce and disclose to the Society all police reports and records regarding the parents K.T. and E.M. from […], 2020 (date of J.’s birth) and ongoing. That order was made on consent. The parents contested the request for production of medical notes and records and on December 1, 2022, Labrosse J. dismissed the Society’s motion in that regard.

[23] Based on a review of the disclosed police records the Society worker lists 18 police involvements since J. was born the majority involving domestic conflict and violence. The child J. was present during many of these disputes. There is no evidence of any police reports since June 2022.

Baby Boy – R.

[24] On March 24, 2023, the Society learned through parents’ counsel the parents were expecting a baby. Throughout his pregnancy, K.T. was followed by mid-wives and received prenatal care through the Midwifery Collective of Ottawa as confirmed by a letter attached to his affidavit.

[25] Baby R. was born [...], 2023 and was taken to a place of safety pursuant to a warrant.

[26] The parents have supervised access at the Society a minimum of three times a week. When the child was removed, they indicated to the Society worker they would not work or collaborate with the Society.

Positions of the Parties

[27] On the motion the Society argues if R. is returned to his parents there is a real possibility of risk of emotional harm due to exposure to adult conflict not only between the parents but with Society workers, access supervisors and other professionals. In addition, it is argued an interim supervision order would not adequately protect the child given a history of breaches of previous supervision orders and criminal release conditions as well as an ongoing lack of trust and failure to cooperate with the Society.

[28] The parents argue there is little if any credible, trustworthy evidence of risk to this child emotional or otherwise that could not be alleviated by an interim supervision order. There is no evidence of ongoing mental health issues or any diagnoses. There are no recent reports of police involvement. The parents have made significant progress and have obtained services. Their conflict, lack of trust and anger towards the Society do not equate to an inability to adequately parent their son.

Legal Principles

[29] The test the Society must meet at a temporary care and custody hearing is outlined under s. 94(4) of the CYFSA.

[30] The onus is on the society to establish, on credible and trustworthy evidence, there are reasonable grounds to believe there is a real possibility that if a child is returned to the respondents, it is more probable than not that he or she will suffer harm. In addition, the onus is on the society to establish that the child cannot be adequately protected by terms and conditions of an interim supervision order. See: Children's Aid Society of Ottawa-Carleton v. T., [2000] O.J. No. 2273 (Ont. Sup. Ct.).

[31] Simply stated, the Society must meet a two-part test.

[32] The onus is by its nature not a difficult one for the agency to meet since the standard of proof is made low by the very wording of the Act: “reasonable” grounds, a “risk”, and “likely” harm, and “adequate” protection for the child. This illustrates that the order sought is intended to be a temporary order while the matter moves through the courts and the focus is on protecting the child in the short term. Children’s Aid Society of Dufferin County v. A.T., 2011 ONCJ 52.

[33] In assessing risk, the court should consider the criminal history of parents, including evidence of violent conduct and the potential exposure of the children to violence. Children's Aid Society of Algoma v. B.W. and R.M., 2002 CarswellOnt 5500 (OCJ).

[34] Exposure to a pattern of domestic violence/conflict has been accepted as creating a risk of emotional harm to children. Children's Aid Society of Toronto v. M.S., [2010] O.J. No. 2876 (SCJ).

[35] Section 94 of the CYFSA must be read in conjunction with its Preamble & Purposes. The least disruptive course of action available and appropriate in a particular case should be considered. In considering the paramount purpose of the CYFSA, the promotion of the best interests, protection and well-being of children, the legislation also recognizes while many parents may need help in caring for their children, that help should give support to the autonomy and integrity of the family unit.

[36] The diversity of a child and the effect of unconscious bias and systemic racism must be taken into consideration, even at the first court appearance. See: Children’s Aid Society of the County of Dufferin v. E.F., 2020 ONCJ 434.

Analysis

Risk of likely harm

[37] On this motion there is sufficient credible and trustworthy evidence to meet the first part of the test under s. 94(4) of the CYFSA.

[38] I find reasonable grounds to believe there is a risk of likely emotional harm to R. if returned to his parents. This threshold has been met based on the following:

1. There has been a pattern of domestic conflict between the parents and conflict with other professionals, including Society workers, in the presence of the child J. This is reflected in the numerous police reports summarized in the Society worker’s affidavit. It should be noted the order for the disclosure of police records was made by Labrosse J. on December 1, 2022, for all records from January 1, 2020, and ongoing. There have been records provided up to June 2022 but there is no evidence of any police involvement due to domestic conflict between the parents for over a year, since February 2022. K.T. deposes there have been no incidents of violent or aggressive behaviour during her pregnancy with R.

2. The Society worker provided evidence regarding historical and recent volatile and aggressive interactions with Society workers, including recent outbursts by E.M. in the presence of the child J. during access visits on January 25, 2023, and February 1, 2023, and by the parents in the presence of the child R. during a visit on April 11, 2023.

3. There is evidence that the parents are easily triggered and react by yelling, name calling and using profane language. The inability to regulate and control emotions was observed in the courtroom when the care and custody hearing had to be adjourned for two days. Clearly this was unexpected and upsetting but E.M. was unable to control her emotions. She yelled out from the body of the courtroom using profane language and abruptly left slamming the door.

4. These emotional outbursts and the previous conflict between the parents themselves and with other adults in the presence of a very young, vulnerable child provide sufficient evidence of reasonable grounds to believe there is a risk of emotional harm.

5. The parents are not arguing there are no reasonable grounds to believe the child is at any risk of emotional harm. However, they strongly argue they have made significant improvements in their parenting abilities and in handling stress and conflict between themselves which has reduced the risk. They have accessed resources and are prepared to engage with service providers. They request an interim joint supervision order with detailed terms and conditions.

Adequacy of an Interim Supervision Order to Protect the Child

Relationship with the Society

[39] There is significant evidence of ongoing conflict, lack of cooperation and overall distrust of the Society by the parents.

[40] As noted by Parfett J. in her May 6, 2022, decision: “The Society has provided significant evidence that the parents have not been very cooperative, have been emotionally volatile and on occasion, abusive towards the workers.” Despite this finding, Justice Parfett found the risk to J. would be mitigated as E.M. was not residing in the home at that time. An interim supervision order was made placing J. back in the care of K.T. on terms and conditions.

[41] Despite the court ordered conditions, during two home visits by the Society workers in June 2022, K.T. engaged in yelling, name calling, using profane language and arguing. In addition, E.M. was found hiding in the closet in the residence and was arrested for breach of her criminal release conditions. J. was removed from K.T.’s care and again placed with his father J.W. Despite court orders for access, Mr. W. had not seen J. while he was in KT’s care.

[42] Given the parents’ suspicions and anger towards the Society and the ongoing worker, a new worker was assigned to work with the parents in August 2022. Despite multiple calls to K.T. to schedule a meeting, none were successful, and Ms. Danaj continued as the ongoing worker.

[43] Although the parents indicate they will cooperate with the Society worker if R. is returned to their care, emotional outbursts towards Society workers have continued during recent access visits.

[44] The real question on this motion is whether an interim supervision order can be fashioned to adequately mitigate risk of emotional harm to R, given the parents lack of trust and previous resistance to cooperating with the Society.

Other services and Parents’ Plan

[45] Although they continue to distrust and react to the Society workers, E.M. and K.T. have successfully engaged with other service providers with respect to their parenting. They also indicate a willingness to access other resources to assist in mitigating any risk to R.

[46] Prior to his pregnancy with R., K.T. was actively involved with Bethany Hope Centre which provides services regarding parenting. A letter from the Parent Support Worker at the Centre indicates K.T. met with support staff for one-on-one sessions over 60 times and improved his knowledge and skills in parenting and personal growth. He sought out and participated in the Circle of Security program until December 2021. The Parent Support Worker noted K.T. “showed great insight into his own anxieties and how his emotions can impact his son. K was honest in his reflections and grew significantly over the course of the program.” He has not hesitated to reach out to staff. K.T. deposes he and E.M. plan to resume services with Bethany Hope if R. is returned to their care.

[47] Throughout the pregnancy, K.T. received pre-natal care from mid-wives through the Midwifery Collective of Ottawa. He attended appointments regularly and gave birth to a healthy baby boy in April 2023. The Collective will continue to work with the parents for approximately six weeks after the child’s birth.

[48] E.M. is receiving therapy for anger issues from David Gilbert, an Integrative therapist. She attends approximately once a week. Mr. Gilbert provided a letter noting E.M. has been coming to him since January 4, 2023, for 60-minute therapy sessions. Mr. Gilbert states E.M. “has been diligently working to resolve the emotional charges, traumas, and core beliefs, stemming from her childhood experiences.” He concludes: “E. has gained significantly greater self-understanding, and continues to develop her self-awareness, and her abilities to act rather than react to circumstances.”

[49] E.M. deposes she is paying for these sessions herself. She is prepared to continue therapy if R. is returned to his parents’ care.

[50] The parents previously attended couples counselling with Jewish Family Services. E.M. deposes they would be prepared to re-attend couples counselling but would prefer it to be with a counsellor suitable and qualified to counsel a transgendered couple.

[51] K.T. indicates they also plan to access resources available through the Parent Resource Centre (PRC) and LGBTTQ+ Around the Rainbow. The PRC provides a Family Resilience Program and in Home Support Services, including one on one appointments and in home visits, which the parents plan to access.

[52] In addition to these resources, it is to be noted that E.M. now has stable employment as a truck driver which relieves the financial stress on the family. She currently works 12-14 hours per day five days a week. Therefore, K.T. would provide full time care for R. during the day when E.M. is working.

Conclusion

[53] Although there are reasonable grounds to believe R. would be at risk of likely emotional harm if returned today to K.T. and E.M., I further find R. would be adequately protected by an Interim Supervision Order to the parents with detailed terms and conditions for the following reasons:

1. There is no evidence of police involvement due to domestic disputes since February 2022. KT deposes there has been no violent or aggressive behaviour during her pregnancy with R.

2. Although counsel for the Society argued there are “red flags” regarding the parents’ mental health, there is no evidence of a mental health diagnosis. As Justice Labrosse stated in his Dec. 1, 2022, decision on the records motion: “Here, the evidence is surrounding violence, aggressive behaviour and aggressive outbursts. There is no link to diagnosed or documented mental health issues. Not all cases of violence and aggressive behaviour find their roots in mental health issues.”

3. E.M. has obtained employment and is working 5 days a week 12 – 14-hour days. K.T. will be the full-time caregiver during the day.

4. The access between the parents and J. has been very positive in terms of their parenting. K.T. provided uncontested evidence of observations by Society workers supervising visits which include that the parents: (a) remain focused on J., and return focus to him when distracted; (b) interact positively through age-appropriate talking, reading and playing; (c) encourage and praise J. during learning and play activities; (d) engage in child-led and child-focused play and learning activities with J.; (e) support and aid one another as parents when caring for J.; (f) bring J. healthy snacks and sit with him while he eats; (g) correct J. firmly but calmly and patiently when he misbehaves; and (h) comfort J. when he cries or fusses.

5. The parents have accessed several outside resources with respect to parenting, anger management and relationship issues. There are positive reports from Bethany Hope and from E.M.’s counsellor Mr. Gilbert. There is no evidence of any resistance to accessing those services or of any conflict or lack of cooperation with those service providers.

6. The parents are willing to continue with their service providers and access further outside resources.

7. The parents have provided sworn evidence of a detailed, comprehensive parenting plan and are prepared to have that plan supervised by the Society.

[54] The historical lack of trust, conflict and resistance to cooperating with the Society does not equate to an inability to adequately parent. It does however pose challenges as the Society will be responsible for supervising the placement of R. with his parents. The parents now indicate they will work cooperatively with the Society if R. is returned to their care.

[55] Therefore, based on the parents’ sworn evidence of a willingness to cooperate, prior to R. returning home to his parents under an Interim Supervision Order, the parents are to sign consents permitting the Midwifery Collective, Bethany Hope, therapist Mr. David Gilbert and Jewish Family Services to share information with the Society. The parameters of the consents are to be in consultation with counsel. Further the parents are to agree with the Society worker on a time for the first home visit to take place by May 5, 2023.

[56] The consents are to be signed by April 25, 2023, after which R. is to be returned to his parents on an Interim Supervision Order with the following conditions:

1. The parents will work cooperatively with the child protection worker by allowing announced and unannounced visits a minimum of once per month.

2. The parents will refrain from yelling, name calling or using profane language when interacting with Society workers.

3. The parents shall sign consents, upon consultation with counsel, permitting third-party professionals and agencies including those listed below to share information with the Society.

4. The parents will access services offered by Midwifery Collective of Ottawa as long as those services are available.

5. The parents will continue to work with the Bethany Hope Centre regarding parenting and attend counselling if recommended.

6. E.M. will continue therapy with Mr. David Gilbert as long as recommended.

7. The parents will apply for family/couples counselling acceptable to them as a transgender couple.

8. The parents will engage in services through the Around the Rainbow and Parent Resource Centre.

9. The parents will refrain from domestic conflict while in a parenting role.

10. The parents will meet all the physical, mental, and developmental needs of R.

[57] This matter is to return TBST on April 26, 2023, at 2 PM.

Blishen J. Released: April 21, 2023