Court File and Parties

COURT FILE NO.: FC-24-023-0000 DATE: 2024/10/31

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

THE CHILDREN’S AID SOCIETY OF THE REGIONAL MUNICIPALITY OF WATERLOO Applicant – and – P.S. and K.K. Respondents

Counsel: Aisha Ghafoor, Counsel for the Applicant The Respondent P.S. is Self-Represented Patrick Brohman, Counsel for the Respondent, K.K. Jean LeDrew Metcalfe, Counsel for the Child, N. K.-S.

HEARD: October 22, 2024

THE HONOURABLE JUSTICE J. BREITHAUPT SMITH

Warning

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

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

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

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

Reasons for Decision on Motion

[1] This matter concerns N. K.-S., aged 7 ½ (“N.”). The Society has been involved with N. since roughly April of 2023, primarily because of Mother’s mental health concerns. The Society’s most recent involvement was triggered by a police report advising that Mother was being taken into custody. Mother was released on May 24, 2024. N. was placed with Father on a without prejudice basis on May 29, 2024, and today’s hearing date was booked from a speak to attendance on August 27, 2024.

[2] The Society’s Notice of Motion for this place of safety hearing seeks to continue the placement of N. with Father, with Mother’s parenting time being in the Society’s discretion, inclusive of the need for supervision. The Society has approved Mother’s current partner, Mr. S. R., as supervisor for day-time community-based visits and Maternal Grandmother for overnight visits. Father supports the Society’s position and consents to the terms as outlined in the draft Order. Mother seeks an equally shared arrangement placing N. in the care of both of his parents. In written argument, the OCL expressed N.’s views as wanting to spend equal time in the care of each of his parents, however that position wavered in oral argument.

[3] The first issue is the determination of the person from whose care N. was brought to a place of safety. This is an essential determination as section 94(2) of the Child, Youth and Family Services Act, 2017 (the “Act”), operative in the context of this motion seeking a placement order during the adjournment period of the Protection Application, sets out a clear hierarchy of placement options. The first option is a return “to the care and custody of the person who had charge of the child immediately before intervention” without any terms or conditions. The second option is a return to that same person with terms and/or conditions. The third option is placement with another person. Thus, whoever had primary care of N. in May of 2024 is at a significant advantage in the placement hierarchy.

[4] The Society argues that Father was, in fact, the person having primary charge of N. Mother admits that this was the case as of October 23, 2023. At that time Mother was prohibited from having direct contact with Father or with N. due to the criminal proceeding against her. The Society was involved and was regulating Mother’s supervised parenting time during this period. The Society’s first file was closed following the removal of the no contact provision when the criminal matter resolved on April 29, 2024. Roughly three weeks later, on May 20, 2024, Mother was arrested as a result of an incident on May 19, 2024 that did not involve Father. There is no evidence before the court specifically delineating the arrangements for N.’s care during that period. N. was in Mother’s care on May 19th, but the police report for May 20th does not clarify whether he was present at Mother’s home on that date. [1] Overall, we are left with a period of seven months (October 2023 through May 2024) during which N. resided primarily with Father for all but three weeks. If N. was in a shared parenting arrangement, or even if he was in Mother’s exclusive care during those three weeks, it is not sufficient in my view to displace the prior six months (i.e. from October 2023 through April 2024).

[5] I find that N. was in the care and custody of Father at the time of the Society’s current intervention. Having regard to the hierarchy of placements, unless there is sufficient evidence of protection concerns to warrant the removal of N. from Father’s care, he must remain there. There is no evidence of any concerns about Father’s care for N.; all evidence relates to Mother and, to an extent, Maternal Grandmother.

[6] I agree with Justice Hilliard’s assessment, in Children’s Aid Society of Brant v. A.A., 2020 ONCJ 53, that the hierarchy of placements is “mandatory rather than permissive.” In the sense that the Court ought not, at this stage, to weigh competing plans of care, I further agree with Her Honour’s statement that: “The legislation does not permit [the Court] to engage in an analysis as to what placement would be in the child’s best interests at this stage in the proceedings.” Once a determination is made that there are no protection concerns in the household of the person who had care of a child prior to the Society’s intervention, the child simply must remain in (or be returned to) the care of that person during the adjournment period unless and until there is a change in these circumstances.

[7] The next question is what supervision terms are necessary during the adjournment period. Father agrees to the wording of the terms in the Society’s draft order in their entirety, including the provision that Mother’s parenting time would be in the Society’s discretion. The Society indicates its willingness for day-time visits in the community supervised by Mother’s partner plus overnight visits at Maternal Grandmother’s home. In reply submissions, the Society suggested another previously-approved overnight visit supervisor and welcomed Mother’s proposal for others who could be assessed to take on this role. Mother seeks an equally shared parenting arrangement. Although it is not in her written materials, in argument, Mother clarified that her position on parenting time is for N.’s care to cycle on a four day on/off basis between his parents’ two homes. She argues that the term requiring her to attend counselling around domestic violence is inapplicable, and that terms requiring her to comply with her treating physician’s direction regarding her mental health are unnecessary.

[8] Here, now that placement with Father is set, N.’s best interests return to prominence as the central focus in determining what access [2] arrangement is in his best interests. To assess N.’s best interests, we must take a holistic look at the family’s experience in the context of section 74(3) of the Act. However, not all of the factors in section 74(3) apply to a place of safety hearing, as the hierarchy of placements supersedes the comparative analysis of the parties’ plans of care addressed at section 74(3)(c)(viii) of the Act. Further, considerations of N.’s ancestry or cultural background have not been identified as applicable at this time.

[9] In this matter, therefore, the analysis of N.’s best interests includes the following sections of section 74(3):

(a) consider the child's views and wishes, given due weight in accordance with the child's age and maturity, unless they cannot be ascertained;

(c) consider any other circumstance of the case that the person considers relevant, including,

(i) the child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs,

(ii) the child's physical, mental and emotional level of development,

(v) the importance for the child's development of a positive relationship with a parent and a secure place as a member of a family,

(vi) the child's relationships and emotional ties to a parent, sibling, relative, other member of the child's extended family or member of the child's community,

(vii) the importance of continuity in the child's care and the possible effect on the child of disruption of that continuity,

(x) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent,

[10] The analysis starts with N.’s “views and wishes, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained.” [3] Ms. LeDrew Metcalfe, for the OCL, clarified in submissions that N. enjoys living with his Father and visiting his Mother, and in the long term would envisage spending equal time in the care of both parents.

[11] As noted, I have found that N. must remain in Father’s care pursuant to section 94(2), and thus we are now talking about the apportionment of N.’s time between his parents’ households. The Society’s plan has N. in Father’s almost-exclusive care, subject to supervised access with Mother. Mother’s plan seeks to have N. in her care for half of the time. I must assess whether it is in N.’s best interests to spend half of his time with Mother, or to have his time with Mother managed by the Society. This assessment includes structural considerations, such as how Mother’s mental health may impact upon her ability to care for N. at his current stage of development, and practical considerations, such as N.’s school attendance.

[12] Mother’s personal history is an appropriate starting point in understanding her mental health. Her experience with the Society’s involvement in her childhood has been terribly damaging and is inexcusable. She was removed from her mother’s care because of physical abuse and placed in foster care where she was sexually assaulted. She attests that she was sexually abused by her mother’s various male acquaintances, with her mother’s knowledge (it is unclear whether this was before or after the Society’s involvement). Despite this, Mother is resourceful and resilient. She has been self-supporting since the age of 16. She has successfully obtained two college diplomas, a B.A. in Geography/Psychology and a B. Ed. She is extremely high functioning, such that her family doctor (Dr. Oey) noted her intelligence and cautioned of a tendency to downplay her symptoms in a referral note to psychiatrist Dr. Marium Bashir Arain (at CAMH).

[13] Mother told Dr. Arain that her childhood trauma started to resurface in early 2023. In the Spring of 2023, her depression worsened, and she asked Father to take her to Cambridge Memorial Hospital where she was kept for a short period. She was discharged with a diagnosis of “generalized anxiety disorder, adjustment disorder with depressed mood; and Cluster B personality disorder traits.” Thereafter, Mother started with basic counselling and Biblical counselling, both of which provided her with some relief. Mother was assessed by Dr. Arain in December of 2023 and no changes were made to her diagnosis. She started trauma-informed counselling in approximately March of 2024. She has maintained stable use of her prescribed medications but has not yet undertaken Dialectical Behavioural Therapy as recommended by Dr. Arain.

[14] The last eighteen months have seen Mother engaged in two significant conflicts involving partners and a third involving her mother, all of which arose due to her own behaviours or poor choices, and all of which involved police.

a. In October of 2023, Mother harassed Father by telephone and text message, and her behaviour escalated to the point of threatening self-harm and cutting the fronts out of a number of his shirts. Criminal charges ensued. N. was not present to witness this incident.

b. On Christmas Day of 2023, Mother and Maternal Grandmother got into an argument which escalated to the point that Maternal Grandmother accused Mother of kicking her in the shin and N.’s stuffed animal was cut into pieces, either by Mother or by Maternal Grandmother. N. was present. The only evidence regarding N.’s view of this incident was a statement that Father replaced the toy but that the replacement wasn’t the same. N. was adversely impacted emotionally – he was attached to this stuffed animal and understood that it was cut into pieces in connection with anger towards Father.

c. On May 19, 2024, Mother and N. attended a fireworks display. Mother was dating a man (not Mr. S. R.), who telephoned her, apparently intoxicated, threatening suicide and indicating that he had a gun. She attests that “as I drove on, I became very upset about the fact that he could actually kill himself.” Mother thus chose to drive, with N., to the area near this man’s residence. Two women approached her vehicle, one of whom assaulted Mother through the window. Mother panicked and drove away; she was later charged with a number of serious offences. Although it appears that N. was not present when police took Mother into custody, he otherwise witnessed this incident.

[15] I would pause here to underscore that, despite her experience as a child in care, Mother has been very forthcoming and honest with the Society and with all of the professionals with whom she has engaged. I have great hope that she is on the right track toward addressing her traumatic past with a view to complete healing.

[16] Mother’s plan in caring for N. involves living in Brantford. This would result in significant travel time to and from school for him if he were to be in her care on school nights. No evidence is provided by Mother regarding her plans in that regard. There is no evidence regarding the nature, surroundings or state of Mother’s home. Mother’s safety plan, should she experience challenges with her mental health while in a care-giving role, relies upon Father, who would be at a distance. Mother has a new partner, Mr. S. R. I presume that he is supportive of her, but he has only been romantically involved with Mother for three or four months. As much of Mother’s escalated behaviours have historically revolved around her intimate relationships, it is not clear that a new partner in her life would create stability and benefit N.

[17] For Mother, Mr. Brohman valiantly argues firstly that the Society’s involvement does not stem from Mother’s mental health, as Mother is following her prescribed medication plan; and secondly that there is no evidence that N. has been improperly cared for by Mother. Regrettably, I must disagree with both statements.

[18] Counsel points to the comments of Justice Jain at paragraph 25 of Simcoe Muskoka Child, Youth and Family Services v. J.K et al, 2021 ONSC 1855, in which Her Honour confirmed that a temporary mental health breakdown does not pose a risk to the children if: concerns are being appropriately addressed; the parent is able to care for the child safely; and there is a safety plan in place. I agree with this analysis. However, unfortunately, Mother has not demonstrated that she can satisfy the three criteria listed by Justice Jain.

[19] Mother’s diagnosis is not straightforward, and thus it is difficult to say with certainty that it is managed. The assessment of her mental health includes “Cluster B traits.” Dr. Arain is with the Canadian Association for Mental Health, who define that term as [4]: “The Cluster B: impulsive personality disorders, such as borderline, narcissistic, histrionic and antisocial personality disorders. These are characterized by having difficulty controlling emotions, fears, desires and anger.” All agree that Mother’s behaviours have been impulsive, and that she placed herself (and N.) in a risky situation on May 19, 2024, when she decided that she was going to meet up with an emotionally distraught person with a firearm. Mother had good intentions – to save a man from suicide – but showed no insight into the potential impact of the situation upon N. What if N. had witnessed the man committing suicide, or had been present when his body was found? What if N. himself had been physically injured? Even witnessing Mother’s reaction to a highly charged situation would impact a child. N.’s physical and psychological safety is paramount. Due to the inherent challenge with impulsivity and an absence of insight, there is no easy solution presented by potential terms to be included in a Temporary Order. The concern is not that Mother is failing to properly follow her prescribed medication regime – the risk to N. remains despite Mother’s adherence to her medication.

[20] On the second point, I again disagree with the contention that there are no instances of improper care of N. by Mother. Whether it was Mother or Maternal Grandmother who cut up N.’s stuffed animal, that incident of emotional harm should not be minimized. For this analysis, it doesn’t matter who cut up the stuffed animal. Simply stated, N. was present and aware that his special toy was destroyed in a fit of anger directed toward Father during Mother’s parenting time. I find that to be an instance of improper caregiving.

[21] There is further the practical problem of school attendance and a lack of information regarding Mother’s plan for N. in Brantford. There is no evidence of a clear plan to meet N.’s needs.

[22] N. is strongly bonded to both parents and should spend time with each of them. However, it is Father who has provided him with a stable home for the past year. Disrupting that stability with a shared-time access arrangement is not in N.’s best interests.

[23] It is, of course, essential that N. have as much time in Mother’s care as can be safely arranged. I agree with the submissions of both her counsel and OCL that a resumption of supervision of her access by Maternal Grandmother would be setting the plan up for failure. Having said this, the Society must strive to facilitate as much time as possible so as to maintain N.’s strong bond with Mother. Unfortunately, I also agree with the Society that it is premature to consider Mr. S. R. for the role of supervisor overnight. Having said this, the Society is encouraged to expand Mr. S. R.’s role as soon as that is safe for N.

[24] As no other clear options have been presented, it seems that the details of access must be left in the hands of the Society for the time being. However, I will include parameters within the scope of that discretion to ensure positive forward movement.

[25] Finally, in the optimistic view that Mother’s personal circumstances, particularly vis-à-vis her diagnosed behavioural disorder, may improve shortly, I will make the following order regarding a material change in circumstances:

The mother, K.K., may bring a subsequent Motion to Change Placement upon a material change of circumstances. A material change in circumstances could include, but is not limited to:

a. the successful completion of a treatment program which includes Dialectical Behaviour Therapy (as recommended by Dr. Marium Bashir Arain);

b. a period of behavioural stability as demonstrated by an absence of police involvement due to adult conflict for not less than six months; and/or

c. a period of relational stability as demonstrated through evidence of at least two close family members or personal connections (e.g. partner) attesting to same for a period for not less than six months.

[26] Based on the foregoing, Temporary Order to go in the form signed today: maintaining N.’s current placement with Father; granting the Society discretion over Mother’s access, with parameters; and authorizing a future change of place.

Footnotes

[1] It is the court’s understanding that N. was with Father, or with another family member, when Mother was arrested.

[2] Although we generally use the term “parenting time,” the Act continues to use the word “access” and thus I use that term in this decision for consistency with the legislation.

[3] Note that I respectfully part ways with Justice Hilliard in this regard, as Her Honour concluded that she was precluded from considering a child’s views and preferences, while I rely upon the language of section 94(11), which requires the court to take a child’s views and preferences “into consideration” before making an order under section 94(2).

[4] Note that counsel agreed with the inclusion of this definition, as sourced from Personality Disorders: Screening & Assessment | CAMH, first retrieved on October 22, 2024.

J. Breithaupt Smith J. Released: October 31, 2024