Catholic Children’s Aid Society of Toronto v. N.A., 2011 ONCJ 671

WARNING The court hearing this matter directs that the following notice should be attached to the file: This is a case under

Part III of the Child and Family Services Act and is subject to one or more of subsections 48(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act , which deals with the consequences of failure to comply, read as follows: 45.—

(7) Order excluding media representatives or prohibiting publication. — The court may make an order, . . . (

c) prohibiting the publication of a report of the hearing or a specified part of the hearing, where the court is of the opinion that . . . the publication of the report, . . ., would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.

(8) Prohibition: 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) Idem: order re adult. — 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. . . . 85. —

(3) Idem. — A person who contravenes subsection 45(8) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(

c) or subsection 45(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. Toronto (North York) Registry No. C51343/10 DATE: 2011·VII·08 CITATION: Catholic Children’s Aid Society of Toronto v. N.A. , 2011 ONCJ 671 THE ONTATIO COURT OF JUSTICE IN THE MATTER OF an application under

Part III of the Child and Family Services Act , R.S.O. 1990, c. C-11, as amended, respecting M. A.G. (born on […] December 1996), J. V.S. (born on […] April 2006) and N.N.S. (born on […] August 2007), children apparently in need of protection; BETWEEN: CATHOLIC CHILDREN’S AID SOCIETY OF TORONTO, Applicant - and - N.A. and C.M.G., Respondents Before Justice Marvin A. Zuker Heard on 25 and 27 May 2011 (written submissions provided on or before 27 June 2011) Reasons for Judgment released on 8 July 2011

Karen Ksienski .............................................................................. counsel for the applicant society Heidi Suter ................................................................................ counsel for the respondent mother C.M.G. ................................................................................................................. on his own behalf Lynda S. Ross ........................................................ counsel for the Office of the Children’s Lawyer, legal representative for the child, M. A.G. [ 1 ] JUSTICE M.A.

ZUKER:— The purpose of this hearing is to determine the issue of a finding that the children, M. A.G., J. V.S., and N.N.S., are children in need of protection as set out in s. 37(2) of the Child and Family Services Act , R.S.O. 1990, c. C- 11. [ 2 ] The child-protection hearing is a two-stage or bifurcated hearing. First, through a hearing on the merits of the case, the court must determine if the children are in need of protection.

This first stage is called the “adjudication.” If the court is satisfied that the children are in need of protection, the court proceeds to the second stage or the “disposition.” At this stage, the court must determine what

section 57 order will be in their best interests. [ 3 ] The court does not apply a best-interests test in determining if children are in need of protection. Rather, the court must make the finding in accordance with the

definitions set out in the CFSA . [ 4 ] The best-interests test only applies after the court has made a finding that the child is in need of protection and while the court determines what order to make under

section 57. [ 5 ] The paramount purpose of the Act is to “promote the best interests, protection and well-being of children”: CFSA , subsection 1(1). [ 6 ] In October 2006, the CFSA was amended to recognize that children’s services should be provided in a manner that takes into account cultural, emotional and spiritual differences among children; that provides for early assessment, planning and decision- making; and that takes into consideration the participation of the child’s relatives and members of the child’s community: CFSA , section 1(2), clauses 2 and 3. [ 7 ] It is the Society’s position that the children M.

A.G. and J. V.S. have suffered physical harm while in the care of Ms. N.A., as defined by sections 37(2)(a)(ii) of the CFSA , and that all three children — M. A.G., J. V.S., and N.N.S. – are at physical risk and emotional risk as defined by 37(2)(b)(

i) and (ii) and 37(2)(

g) of the Child and Family Services Act . The Statutory Findings [ 8 ] It is the Society’s submission that the following Statutory Findings should be made based on the affidavit evidence of Shernett Blackwood as outlined at Tab 2 in the affidavit brief, Exhibit 2 herein, as well as the testimony of Ms. N.A. M. A.G. [ 9 ] The child’s legal name is M. A.G.. He was born on December […], 1996. M. A.G. was admitted to the Society’s care on June 16, 2010. He was apprehended from St. Jude’s Catholic School in Toronto. [ 10 ] Ms. N.A. testified that M. A.G. was baptized as a Roman Catholic and his father is Mr. C.M.G.

Mr. C.M.G. should be considered a parent as defined by the Child and Family Services Act . [ 11 ] There is no evidence that either of the parents are of Native Canadian heritage. J. V.S. [ 12 ] The child’s legal name is J. V..S. He was born on April […], 2006. J. V.S. was admitted to the Society’s care on June 16, 2010. He was apprehended from 61 Markbrook Lane in Toronto. [ 13 ] According to Ms. N.A., J. V.S. Singh is not of the Roman Catholic faith, but is Hindu. At trial Ms. N.A. did not testify as to the identity of J. V.S.’s father. [ 14 ] There is no evidence that Ms. N.A. is of Native Canadian heritage.

N.N.S. [ 15 ] The child’s legal name is N.N.S. He was born on August […], 2009. N.N.S. was admitted to the Society’s care on June 16, 2010. He was apprehended from 61 Markbrook Lane in Toronto. [ 16 ] According to Ms. N.A., N.N.S. Singh is not of the Roman Catholic faith, but is Hindu. At trial Ms. N.A. could not testify as to the identity of N.N.S.’s father.

[ 17 ] There is no evidence that Ms. N.A. is of Native Canadian heritage. The Evidence [ 18 ] The Catholic Children’s Aid Society of Toronto first became involved with Ms. N.A. as a parent on July 4, 2008. The Society received a referral from the Toronto Police Services that they had the following concerns: 1. the state of Ms. N.A.’s home 2. there was no one to sleep in Ms. N.A.’s home given the amount of belongings 3. that Ms. N.A. was suffering from depression [ 19 ] On July 7, 2008, the Intake Worker, Shernett Blackwood, attended Ms. N.A.’s homes and verified the concerns the police had with Ms. N.A.’s home.

The state of the home was very concerning to Ms. Blackwood. She found it particularly dangerous that cleaning supplies were within reach of J. V.S. (then two years old) and N.N.S. (almost one). There was no place to walk in the apartment; it was overflowing with stuff. When Ms. N.A. was questioned about the state of her home, she advised that she was suffering from depression. (See Tab 2, Exhibit 2.) [ 20 ] On that date Ms. N.A. was advised by Ms.

Blackwood that, due to the concerning state of her home, the children would have to come into the care of the Society if she could not find a family friend to leave her children with. The children went to stay with Ms. N.A.’s friend, Ms. Shareen A. The children remained with Ms. Shareen A. until August 1, 2008. [ 21 ] On July 30, 2008, the file was transferred from Ms. Blackwood to Lana Khatova. See Tab 3, Exhibit 2. During the time Ms. Khatova was the family services worker, the Society submits that Ms. N.A. was never able to maintain her home in a safe state. Ms. N.A. would avoid meeting with Ms. Khatova. Ms.

Khatova’s evidence was that Ms. N.A. did not make herself available for a single scheduled meeting. Meetings were postponed because the home was in a state of disarray and Ms. N.A. would require further time to organize her home. Ms. Khatova testified that, during her entire year of involvement, the home was never in an acceptable state, although at times there were some parts that were organized. [ 22 ] Ms. N.A. at times acknowledged to Ms. Khatova that she was overwhelmed by her depression, and that she was seeking out a new psychiatrist because Dr. Slyfield was unable to help her. Ms.

N.A. further acknowledged that she was not always taking her medication. It was Ms. Khatova’s understanding that Ms. N.A. was taking medication for depression. [ 23 ] Ms. N.A. admitted that because of her feelings of depression she could not always get M. A.G. to school and the younger children to daycare. Because of M. A.G.’s poor attendance, he failed math. [ 24 ] Ms. N.A. acknowledged to Ms. Khatova that she had experienced domestic violence in the presence of M. A.G., at the hands of his father, Mr. C.M.G., and other men. Ms. Khatova recommended that Ms.

N.A. attend for counselling at Catholic Family Services. Ms. N.A. did not follow through. Ms. N.A. required counselling in the area of domestic violence. She continually exposes the children to violent men. Ms. N.A. has had a longstanding relationship with Mr. H. B. Mr. H. B. is possibly the father of her two youngest sons, J. V.S. and N.N.S.. [ 25 ] Exhibit 1 relates to the Toronto Police Services criminal records and occurrence reports for Mr. H. B. and Ms. N.A.. Mr. H. B.’s record reflects extreme violence. Mr. H.

B. was convicted of assaulting and uttering death threats related to locking his parents in their bedroom on February 7, 2005, and then assaulting them. Mr. H. B. then threatened to kill them. [ 26 ] Mr. H. B. was also charged with assaulting Ms. N.A. on October 16, 2010, after he slapped Ms. N.A.’s face in the presence of guests at a party that she was having. A no-contact order was made as a term of Mr. H. B.’s release. Mr. H. B. was arrested on March 16, 2011, with failure to comply with recognizance as he was found on that date in Ms. N.A.’s home. [ 27 ] Ms. N.A. testified that Mr. H.

B. was charged with breach of his recognizance. She had revoked the no-contact order. Ms. N.A. testified she required Mr. H. B.’s assistance in having her children returned to her care. She testified that she needed Mr. H. B. to drive her around to prepare for trial. Ms. N.A. did not appear to comprehend the risk Mr. H. B. posed to her and the children. [ 28 ] Mr. Lloyd A. testified at the trial that he provides Ms. N.A. with substantial amounts of money annually. There is no explanation why. They have been divorced over ten years. [ 29 ] The Society submits that Ms.

N.A. is not selective as to who assists her and the risks at which such assistance places her and the children. [ 30 ] On May 27, 2009, M. A.G. was injured in his home as a bed rail fell and hit him in the head. Ms. N.A. advised Ms. Khatova that, as a result of the bed rail falling on M. A.G.’s head, he was dizzy and having problems hearing in one ear. Ms. Khatova attended the hospital with M. A.G. and Ms. N.A.. As a result of M. A.G.’s injury, he did not attend school the following day. [ 31 ] The file was transferred to family services worker Daniela Rotunda in July 2009. See Exhibit 2, Tab 1. Ms.

Rotunda, on her first visit to Ms. N.A.’s home, found it to be in an unsafe state. See Exhibit B to Ms. Rotunda’s affidavit, photographs taken following March 9, 2010. It is submitted that Ms. N.A. achieved some stability from September 2009 to the end of January 2010. [ 32 ] By February 2010, M. A.G. was missing significant time at school. Ms. N.A. started travelling and leaving the children with whomever she could find. She went to India and left the boys with Mr. H. B. She went to Washington, D.C. She went to London. [ 33 ] On June 16, 2010, the children were apprehended.

See in particular paras. 37-43 inclusive of Ms. Rotunda’s affidavit. • Ms. N.A. was acknowledging that she was depressed.

• Ms. N.A.’s home was a mess. • J. V.S. had injured himself, slipping on the perfume from a bottle that was on the floor. As well, J. V.S. had cut his eye when M. A.G. threw a book at him. [ 34 ] On June 16, 2010, Ms. N.A. asked that Ms. Rotundo pick up the children right away because she was leaving for England that evening, and had no one to look after them. M. A.G. was taken to the hospital as he was suicidal. Ms. Rotundo called Ms. N.A. to the hospital but she refused to attend. [ 35 ] According to M. A.G.’s report card from St. Jude’s Catholic School, dated June 29, 2010, M.

A.G. was absent in Grade 8 a total of 41.5 days and was late 41.5 times. Nick Niagini, the school principal, testified that attendance records at his school are very accurate. [ 36 ] Medical evidence was provided at trial that Ms. N.A. has mental health issues that impact her functioning. [ 37 ] According to the report of Dr. Slyfield dated March 27, 2011, he treated Ms. N.A. for a depressive disorder from April 9, 2008, to October 2008 with supportive psychotherapy and anti-depressant medication. He diagnosed her with Dsthymic Disorder as well as histrionic traits of personality. [ 38 ] Dr.

Mohammed Hussain, in a medical report dated June 19, 2010, provided a provisional diagnosis of an adjustment disorder with depressed and angry mood. Ms. N.A.’s differential diagnosis included bipolar II disorder, but this required further investigation. [ 39 ] Dr. David Koczerginski’s report dated March 16, 2011, provided a provisional diagnosis of an adjustment disorder with depressed and angry mood. Ms. N.A.’s differential diagnosis included bipolar II disorder. [ 40 ] Neither Dr. Koczerginski nor Dr. Husain had the opportunity to make an in-depth assessment with respect to Ms.

N.A., as both their assessments occurred in the Emergency Department of William Osler Health Centre. Dr. Koczerginski and Dr. Husain are psychiatrists, and Dr. Slyfield is a family doctor. [ 41 ] In the letter provided by Reverend Dr. Paulette Crooks-Drummond, Ms. N.A.’s counsellor from the Jamaican Canadian Association, dated May 16, 2011, she indicates that: “Ms. N.A. is very receptive to counselling, however, she is not focused to implement what is being said.” Reverend Crooks-Drummond also testified that Ms. N.A. attended half of the classes of the Parenting Program she was enrolled in.

Reverend Crooks-Drummond could not explain why Ms. N.A. did not attend for sessions after April 18, 2011. [ 42 ] The Society submits that the risk in this case is due to Ms. N.A.’s mental health. She is not able to care for her children. Ms. N.A. could not ensure that her home was safe. The children, J. V.S. and M. A.G., suffered physical harm directly as the result of the state of the home. [ 43 ] It further submits that Ms. N.A. has placed the children at risk as defined by sections 37(2)(b)(i), (ii), and 37(2)(g). Ms. N.A. would leave on vacations and fail to ensure her children were adequately cared for.

As already noted, one of the caregivers that Ms. N.A. entrusted her children with was Mr. H. B., a man convicted of assaulting his own parents, and who later threatened Ms. N.A.. Ms. N.A. did not see the risk Mr. H. B. posed to her children. [ 44 ] The Society submits that M. A.G. was at extreme risk for emotional and physical harm at the time of the apprehension. He was a child who was suicidal and, on the date of the apprehension, he was taken to the hospital by Daniela Rotundo. In Grade 8, M. A.G. was absent from school a total of 41.5 days and late 41.5 times. Ms. N.A.’s explanation for M.

A.G. missing so much school was that he enjoyed long showers. She also blamed the child for not being able to get to school. [ 45 ] The uncontradicted evidence at the finding hearing was that, although there were times that the home was messy, there were also times the home was neat and tidy. The original concern of the Society worker, Danielle Rotundo, was that there were nails and a screwdriver within reach of the children. Ms. N.A. removed these items to a secure place. Ms. Rotundo, who made monthly home visits, testified she never saw them again. [ 46 ] Photos were taken by Ms. Rotundo on March 10, 2010. Ms.

N.A. submits that they were taken in selected parts of the home and that none show items dangerous to small children. [ 47 ] It is submitted that the same day Ms. Rotundo took the photos, she returned to Ms. N.A.’s home and saw Ms. N.A. cleaning the apartment with a friend, Sam K. See CCAS Affidavit Brief, Tab 1, page 8, para. 26 d. [ 48 ] No other photos were taken by the Society at any time, including the day of apprehension, June 16, 2010. The Respondent submits that her home was neat and tidy on that day. [ 49 ] Ms. Rotundo, in her Affidavit sworn June 21, 2010, praised Ms.

N.A. when she said that she “had been able to maintain a minimum standard of organization and cleanliness.” See Continuing Record, Tab 3, page 9, para. 34. She left out this laudatory statement in the Affidavit she swore on May 5, 2011, the same Affidavit the Society used in its Affidavit Brief, filed in support of their position on the finding hearing. [ 50 ] Ms. N.A. submits that the uncontradicted evidence before the court was that she was suffering from mild post-partum depression following the birth of her third son, N.N.S., and was “otherwise normal.” Ms. N.A. came to see him [Dr.

Slyfield, William Osler Health Centre] “because of concerns of the CCAS.” That is all.

Dr. David Slyfield’s report, dated September 27, 2009, Affidavit Brief, Tab 1, Rotundo’s Affidavit sworn May 5, 2011, Exhibit A Notice to Produce medical and hospital reports Exhibit 4 at Finding hearing: Dr. David Slyfield, Tabs 1-3; William Osler Health Centre hospital records, Tabs 4-5 [ 51 ] In the period August 2009 to January 2010, according to the mother, Ms. Rotundo remarked (Affidavit Brief, Tab 1, Rotundo Affidavit sworn May 5, 2011, page 6, para. 22) that Ms. N.A. “had made some positive gains in coping with her stress, depression and maintaining the home. Ms.

N.A. seemed to be more confident as she continued to pursue her educational goals. Her involvement in school appeared to have helped her to be out in the community and engaging in relationships with fellow peers [sic], as opposed to being isolated at home alone with three young children.” [ 52 ] Ms. N.A. submits there was no such significant deterioration that warranted the apprehension of her children on that day or any day. She had been addressing the concerns of the Society. i. M. A.G., J. V.S. and N.N.S. are being cared for by Ms.

N.A. in such a manner that both their physical and emotional well- being are harmed or at risk of being harmed. In particular, as regards M. A.G.: a. Allegations that A.s’ conduct caused M. A.G.’s “suicidal feelings” b. That A.s’ conduct caused M. A.G.’s frequent lateness and absences from school, and c. M. A.G. was being “parentified” by Ms. N.A. [ 53 ] To the contrary, Ms. N.A. submits that the uncontradicted evidence before the court is that M. A.G.’s principal, Nick Biagini, was not aware nor made aware of the alleged suicidal feelings M. A.G. allegedly had. Neither Mandarelli nor M.

A.G. ever spoke to him about that. He would certainly have remembered had either of them done so. [ 54 ] Mr. Lloyd A., whose evidence was that he has known M. A.G. over many years, denied M. A.G. had ever talked to him about any feelings of suicide. His evidence was that M. A.G. confided in him from time to time and would have mentioned this. [ 55 ] Ms. Rotundo says she took M. A.G. to the Emergency at St. Joseph’s Health Centre for a psychiatric assessment, as allegedly M. A.G. told her he was feeling depressed and had suicidal thoughts. (Affidavit Brief, Tab 1, Rotundo Affidavit, p. 17, para. 47) [ 56 ] Ms.

N.A. submits that no report of this psychiatric assessment was ever produced by the Society to substantiate either that the assessment took place or that M. A.G. had such thoughts. Had this report confirmed the Society’s allegations, the Society would have produced the report. [ 57 ] The school records for M. A.G. both in Grade 8 and Grade 9 show significant absences and lateness. The Society, however, has failed to show any proof that Ms. N.A. was the cause of these absences and lateness. [ 58 ] Ms. N.A. testified J. V.S. and N.N.S. were Hindus. She gave evidence that the Society was aware from the start.

The Society, being a Catholic Society, knowingly improperly apprehended these children. [ 59 ] Ms. N.A. admits she did leave the country to go to a pilgrimage to India. She arranged for the children to be cared for by Mr. H. B. There is no evidence the children were harmed in any way, nor not well looked after, by him in her absence. [ 60 ] She submits that the Society’s introducing new allegations one month before the finding hearing, that Mr. H. B. endangers and/or risks to endanger their physical and emotional well-being, is unfair and improper. Mr. H.

B. had already been in the children’s lives continuously for more than one year, both during the Society’s involvement and before apprehension, without incident. [ 61 ] Ms. Ross has advised the court pursuant to a letter to the court dated June 21, 2011, that: As my client wishes to return to the care of his motion, no position with regard to the finding will be advanced on M. A.G.’s behalf. Accordingly, in accordance with the child’s wishes and the direction of the Office of the Children’s Lawyer, I will not be filing any submissions for the court’s consideration. [ 62 ]

Part III of the Child and Family Services Act is the authority for child protection proceedings in Ontario. The Act establishes a legal system for state intervention with respect to the care and protection of children within their families. The Act attempts to balance the parents’ right to raise their children with autonomy and privacy, while ensuring that each child is properly cared for in accordance with generally accepted minimum standards of care.

[63] The declaration of principles or purposes in

section 1 and the provisions in

part III govern the key aspects of the childprotection case. The declaration of principles in

section 1 and many provisions in

Part III were amended on March 31, 2000. Thefundamental premise underlying the Child and Family Services Act is that a Society, as the agent of the state, has a duty to investigateallegations that a child may be in need of protection and to take the appropriate and necessary steps to safeguard the child. [64] For a child to be found in need of protection, there must be a significant departure from the average standard of care for achild of a given age. A minimum parental standard of childcare exists for all society.

However, a secondary standard for a particularcommunity may be established by reference to: (1) cultural differences, (2) acquired community habits, and (3) conditions forced on thecommunity. See Re Elisa, (SK PC), [1980] 4 W.W.R. 296, [1982] 2 C.N.L.R. 53, 17 R.F.L. (2d) 274, [1980] S.J. No.835, 1980 Cars​well​Sask 94 (Sask. Prov. Ct.). [65] A “pattern of neglect” in caring for, providing for, supervising, or protecting the child is added to the grounds for findinga child in need of protection, where the pattern results or puts the child at risk of suffering physical or emotional harm.

The definitionof emotional harm is expanded to include delayed development. The risk of physical or emotional harm or of sexual molestation nolonger has to be substantial. The Law [66] The court must first have a hearing to determine if the child is in need of protection. This is stated in s. 37(2) of the Childand Family Services Act, which reads as follows:

(2) Child in need of protection.— A child is in need of protection where, (

a) the child has suffered physical harm, inflicted by the person having charge of the child or causedby or resulting from that person’s, (

i) failure to adequately care for, provide for, supervise or protect the child, or (ii) pattern of neglect in caring for, providing for, supervising or protecting the child; [67] The

section goes on to deal with the risks that the court should consider in making its decision on the need for protection. [68] Section 37(3) outlines in detail the considerations that the court should take into account when dealing with the bestinterests of the child. [69] The court has a discretion to make a finding that a child is in need of protection pursuant to a clause of the Act even if notpleaded, if justified by the evidence, and if the parent(

s) had prior disclosure of the relevant evidence, is not caught by surprise and hashad a full opportunity to test this evidence. See Durham Children's Aid Society v. R.S. and J.M. (2005), 137 A.C.W.S. (3d) 566, [2005]O.J. No. 570, 2005 Cars​well​Ont 10570 (Ont. Fam. Ct.); and Children’s Aid Society of Hamilton-Wentworth v. K.R., (2001), 114A.C.W.S. (3d) 71, [2001] O.J. No. 5754, 2001 Cars​well​Ont 5006 (Ont. Fam.

Ct.). [70] In cases where the Society is alleging that the child is in need of protection due to physical harm or a risk of physicalharm, the following principles have been applied: • The society must prove causation by act, omission or pattern. It is not necessary to prove intention. See Jewish Family andChild Service of Toronto v. Rachel K., 2008 ONCJ 774, [2008] O.J. No. 1940, [2008] O.J. No. 5856, 2008 Cars​well​Ont9306 (Ont. C.J.), affirmed at Jewish Family and Child Service v. K. (Rachel), 2009 ONCA 903, [2010] W.D.F.L. 202,[2009] O.J. No. 5422, 2009 Cars​well​Ont 7908 (Ont. C.A.).

Physical harm caused by neglect or error in judgment is stillphysical harm. But it must be more than trifling physical harm. See Children’s Aid Society of Niagara Region v. T.P.,, 35 R.F.L. (5th) 290, [2003] O.J. No. 412, 2003 Cars​well​Ont 403 (Ont. Fam. Ct.); and Children’s AidSociety of Rainy River v. Cynara B., 2006 ONCJ 458, 43 C.C.L.I. (4th) 264, [2006] O.J. No. 4745, 2006 Cars​well​Ont 7548(Ont. C.J.). • Harm caused by neglect or error in judgment comes within the finding: see Children’s Aid Society of Niagara Region v.T.P., supra. • The risk of harm must be real and likely, not speculative.

See Children’s Aid Society of Rainy River v. Cynara B., supra,and Children’s Aid Society of Ottawa-Carlton v. T. and T., , 97 A.C.W.S. (3d) 939, [2000] O.J. No.2273, 2000 Cars​well​Ont 2156 (Ont. Fam. Ct.). • A child may be at risk even if the conduct is not directed specifically towards that child. See Catholic Children’s AidSociety of Metropolitan Toronto v. Lisa Marie O., , 59 A.C.W.S. (3d) 916, 7 W.D.C.P. (2d) 49, [1996]W.D.F.L. 650, 9 O.F.L.R. 165, [1995] O.J. No. 3971, 1995 Cars​well​Ont 4393 (On. Prov.

Ct.). • A pattern of allegations is not sufficient to prove a finding if the underlying facts of the allegations are not proven. SeeKenora-Patricia Child and Family Services v. N.L., 2005 ONCJ 247, 142 A.C.W.S. (3d) 106, 19 O.F.L.R. 160, [2005]W.D.F.L. 3945, [2005] O.J. No. 3635, 2005 Cars​well​Ont 3979 (Ont. C.J.). • It is not necessary for the society to prove which caregiver caused harm if one or the other must have either caused theharm or failed to protect the child from the other caregiver. See Catholic Children’s Aid Society of Toronto v. Marlene DeS., 2005 ONCJ 336, 140 A.C.W.S. (3d) 669, [2005] O.J.

No. 2914, 2005 Cars​well​Ont 2932(Ont. C.J.). • Physical abuse, inappropriate discipline, inadequate supervision, domestic violence, untreated mental illness, untreatedaddictions, inadequate shelter/food are common circumstances leading to findings of physical harm/risk of physical harm. [71] Exposure to a pattern of domestic violence has been accepted as creating a risk of emotional harm. See Children’s AidSociety of Toronto v. Sheila Ann C., 2005 ONCJ 274, 143 A.C.W.S. (3d) 869, [2005] W.D.F.L. 3688, [2005] O.J. No. 2154, 2005 Cars​-well​Ont 2424 (Ont. C.J.); aff’d Children’s Aid Society of Toronto v.

Sheila Ann C., , 143 A.C.W.S. 3d 510, [2005]O.J. No. 4718, 2005 Cars​well​Ont 5932 (Ont. S.C.), aff’d Children's Aid Society of Toronto v. Sheila Ann C., 2007 ONCA 474, 158A.C.W.S. (3d) 610, [2007] W.D.F.L. 2844, [2007] O.J. No. 2609, 2007 Cars​well​Ont 4267 (Ont. C.A.), leave to appeal to S.C.C. refusedat Sheila Ann C. v. Children's Aid Society of Toronto, , [2007] 3 S.C.R. xiv, [2007] S.C.C.A. No. 462, 2007 Cars​well​-Ont 7859; Jewish Family and Child Service of Toronto v. Rachel K., supra. In Children’s Aid Society of Toronto v. Sheila Ann C., supra,

after hearing expert evidence on domestic abuse, Justice Zuker conducted a lengthy review of caselaw involving domestic violence inchild protection, as well as social science literature on the effects of abuse, the dynamics of abusive relationships, and the interplaybetween domestic violence and substance abuse.

His findings include: • Witnessing violence perpetrated against their mother may have an abusive and detrimental impact on a child’sdevelopment. • Children may feel guilty, blame themselves and feel depressed. • They can develop fears, insecurity and low self-esteem as a result of witnessing domestic violence. • They can suffer emotional confusion that can result in bedwetting, nightmares, sleeping or eating disturbances, self-harmand weight loss. [72] See Children’s Aid Society of Hamilton-Wentworth v.

K.R., supra, where Justice George Czutrin stated: While it is better practice, and the sections are set out in the forms to plead the subsections relied on, thecourt cannot be prohibited from finding a child in need of protection if the appropriate box has not beenchecked off, especially where the facts support such a conclusion. Events in a child’s life are everevolving and not frozen to events that existed at the beginning of the court process.

It is open for me tofind a child in need of protection where the evidence supports the facts that fall under any subsection ofs. 37 where the evidence and facts have been established, and as in this case, cannot come as a surprise. [73] Child protection proceedings are unlike ordinary civil litigation and court can choose a flexible approach that wouldadmit evidence arising at any time up to the date of the court hearing, subject to adequate disclosure to all parties. See Children’s AidSociety of Brant v. James Albert T., 2005 ONCJ 302, 144 A.C.W.S. (3d) 278, 19 O.F.L.R. 161, [2005] O.J.

No. 5249, 2005 Cars​well​Ont7097 (Ont. C.J.); and Children’s Aid Society of Hamilton-Wentworth v. K.R., supra, per Justice Czutrin: (

a) Only facts related to disposition are statutorily excluded at the finding phase. (

b) Best interests are paramount. Child welfare legislation is different from general legislation and litigation in this regard. (

c) This approach facilitates an accurate assessment of present circumstances. (

d) To be overly technical could put the child at risk. (

e) It prevents multiplicity of proceedings. (

f) Could bring the administration of justice into disrepute. (

g) Allows parents as well to bring in evidence. (

h) Rigid approach makes it more of a game. [74] Having regard to Children’s Aid Society of Kingston and Frontenac County v. John Wesley S., (1995), 58 A.C.W.S. (3d)1109, [1996] W.D.F.L. 179, [1995] O.J. No. 3314, 1995 Cars​well​Ont 2186 (Ont. Prov. Div.), which I adopt by analogy, I find that thechildren’s mother led and continues to lead an unstable life. She has missed many access opportunities to see her children, and haslacked and continues to lack basic childcare knowledge.

The evidence demonstrates that there were serious concerns regarding incidentswhen her children were left alone, and when she left them with a known abuser. The focus of the thinking of the mother is her ownneeds and not the children’s needs. [75] I find that the children are in need of protection pursuant to s. 37(2)(

g) of the Child and Family Services Act based on theevidence that they would be at risk of neglect because of the mother’s lack of understanding of their needs, as well as her chaoticlifestyle. I also find that the children are in need of protection pursuant to s. 37(2)(

g) by being at risk of emotional harm, based on theevidence that demonstrated a risk of neglect and a significant lack of insight by the mother into their emotional needs. I should add thatmother’s defence of Mr. H. B., and the risks he poses, are intolerable. [76] The test to be applied under s. 37(2) of the Child and Family Services Act is the civil burden of the balance ofprobabilities. On the basis of the reports filed, mother poses a risk of harm to the children. [77] In considering s. 37(2)(g), “risk that the child is likely to suffer emotional harm,” I refer to Children’s Aid Society ofOttawa-Carlton v.

T. and T., supra, wherein Justice Jennifer A. Blishen defined the unmodified word “risk”: The term “risk is now left unmodified. The Concise Oxford Dictionary includes as a definition of risk “the possibility that something unpleasant might happen.” Black’s Law Dictionary (7th edition), 1999defines risk as “the chance of injury, damage or loss.” Thus, a risk of undefined proportions involves achance or a possibility.

However, in my view, this chance of possibility must be real and not justspeculative. [78] The historical information in this case is quite recent and compelling. [79] See Children’s Aid Society of Ottawa v. H.C., , 1 R.F.L. (6th) 102, [2003] O.J. No. 5293, 2003 Cars​-well​Ont 5242 (Ont. Fam.

Ct.): Children’s aid societies have the mandate and obligation to investigate allegations that children withintheir territorial jurisdictions may be in need of protection and to take action to protect those children,including apprehending children or bringing cases before the court where necessary, regardless of the“ordinary residence” of the children. Whether the children are in the jurisdiction as visitors, tourists,refugees or to attend school should not and does not make a difference when there are protectionconcerns. [80] I find therefore that the children are at risk and are in need of protection.

Released: 8 July 2011 Signed: “Justice Marvin A. Zuker”