) ) CHILDREN’S AID SOCIETY OF ALGOMA ) ) John J. Rossi, for the applicant society ) — v. —, 2011 ONCJ 679

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 subsections 45(8) of the Act. This subsection and subsection 85(3) of the Child and Family Services Act , which deals with the consequences of failure to comply with subsection 45(8), read as follows: 45.—

(8) 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. . . . 85.—

(3) 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. Sault Ste. Marie Registry No. 13/2011 DATE: 2011·III·29 CITATION: Children’s Aid Society of Algoma v. H.P. , 2011 ONCJ 679 ONTARIO COURT OF JUSTICE BETWEEN: ) ) CHILDREN’S AID SOCIETY OF ALGOMA ) ) John J. Rossi, for the applicant society ) — AND — ) ) H.P. and R.B., ) ) ) Romuald F.

Kwolek, for the respondent mother H.P. P. Kristi M. Whitfield, for the respondent father R.B. ) )) HEARD: 23 March 2011 [ 1 ] JUSTICE J. KUKURIN:— This is a decision on three motions: (

a) at tab 2, brought by the applicant society for an order for temporary care and custody in its favour; (

b) at tab 10, brought by the respondent mother for temporary care and custody in her favour; (

c) at tab 19, brought by the respondent father for temporary care and custody in his favour. The children in this child protection case are Cassidy, age nine, and M., age almost six. [ 2 ] The children were apprehended from the charge of their mother on January 17, 2011. An interim without prejudice order was made on the society’s motion (at tab 2) on January 21, 2011. That motion was adjourned to March 23, 2011 for a hearing on the issue of temporary care and custody. In the meantime, the mother has brought her motion at tab 10, and the father his motion a tab 19.

All three motions were argued together. [1] [ 3 ] The test for determination of temporary care and custody is set out in section 51(3) [2] of the Child and Family Services Act , R.S.O., 1990, c. C-11, as amended (the Act). The court is required to make one of four possible orders that are set out in section 51(2) [3] each time that a child protection case comes before the court. The court is required to make a non-removal order, under clauses (

a) or (

b) of section 51(2) unless the society has met both parts of the two-part test in section 51(3) . If it has, then the court may make a removal order under either of clauses (

c) or (

d) of section 51(2). [ 4 ] In this case, the mother maintains that the society has failed to meet its onus on both parts of the two-part test in section 51(3) . She claims she had charge of the children prior to apprehension. Therefore, they should be returned to her temporary care and custody until this child protection case is resolved. She does not object to the return of the children being subject to reasonable terms of a supervision order. [ 5 ] The society and the father disagree. They maintain that the society has met both parts of the test. Accordingly, the court

should, at this temporary care and custody hearing, make a removal order, one that does not return these children to their mother. The father proposes that the temporary care and custody of these children should be entrusted to him. The society asks that the children remain in its care, but concedes that it would not be adverse to a temporary placement with the father. [ 6 ] Pursuant to section 51(3.1) [4] the court has to consider kin placements prior to awarding temporary care and custody to a society. In this case, the father falls into this category.

Two other “kin” placements have been proposed as alternatives. [5] The mother proposes her mother, and the father proposes his parents. The society has been notified and is in the process of completing kin assessments (which were not available when the present motions were heard). [ 7 ] Some background is in order. The mother and father are separated. There is an existing order under the Children’s Law Reform Act , R.S.O. 1990, c. C-12, as amended, between them dealing with custody and access. The children reside with their mother. They spend time with their father on a regular basis.

Since apprehension, they have been residing in a foster home in Thessalon. The father resides in Sault Ste. Marie with his present partner and her two children. The paternal grandparents’ home is at Richards Landing on St. Joseph Island. The maternal grandmother resides in Bruce Mines, approximately a ten minute drive from the home of the mother and the children. [ 8 ] Of substantial importance in this case are the reasons for the protection concerns that prompted the apprehension of the children and the commencement of this child protection application.

The Child and Family Services Act requires a society to set out the grounds on which it relies for a finding that a child is in need of protection. In this case, there is only one ground that is specified, namely, section 37(2)(d) — risk of sexual harm. [6] The factual allegations in this case all point to one person as the potential perpetrator of such sexual harm, namely Mr. H.C. [ 9 ] If my inferences from the society’s evidence are correct, Mr. H.C. has twice been convicted of sexual offences against female children, and has been twice imprisoned. Once was in Michigan in 1996.

The second time was in Ontario in 2007, on a sexual assault charge against a 15-year-old stepdaughter to which he pleaded guilty. For this, he received a prison sentence. He was released in November 2008 with a two-year probation order. [ 10 ] Mr. H.C. is, at present, back behind bars. According to the evidence, he was formally charged on January 11, 2011 [7] with nine dated sexual offences against a daughter, now 13 years old, and possibly another unidentified (in the evidence) adult female.

He was also charged with invitation to sexual touching with respect to M., the younger child in this child protection case. However, the Crown has decided not to prosecute this latter charge. Although the society does not identify the specific date that he was arrested, my inference from what evidence was provided is that the arrest took place on January 11, 2011. It seems clear that Mr. H.C. has had a bail hearing. In fact, the society intimates that the mother was present at his bail hearing, one of the numerous insinuations she denies.

In any event, it was common ground, as of March 23, 2011, the date that these motions were heard, that Mr. H.C. was still detained in custody. Had he been released and re-arrested in the over two months since his arrest, I expect that this would have been included in the evidence. My conclusion is that Mr. H.C. has been continuously detained in custody without bail since January 11, 2011. This period includes the date of January 17, 2011 which is the day that the children in this case were apprehended.

I also infer that what transpired on January 17, 2011, a Monday according to the calendar, is that the children were removed from their school, taken to the Ontario Provincial Police (OPP) detachment in Thessalon for interviews, and taken from there to Thessalon hospital where they were handed over to approved foster parents who took the children to their home. In absence of any mention in the evidence to the contrary, I infer that this apprehension was effected without any apprehension warrant, and without any attempt to obtain such a warrant. [8] [ 11 ] The society concedes that Mr. H.C. remains in custody.

Its argument is that: (

a) either he may be released on bail at any time; (

b) or, as an “in-custody” accused, he can qualify for an early trial date and be released back into the community if he is acquitted on his charges. In either case, the society maintains that the mother absolutely could not be trusted to keep away, and to keep the children away, from him should they be returned to her care. The society points to a mountain of evidence that supports the conclusion that the mother has deliberately misrepresented, on many occasions, the fact of her continuing relationship with Mr. H.C., and has outright lied to both police and to society workers.

It maintains that she has permitted contact between the children and Mr. H.C. knowing full well that he is a convicted sexual offender against children, and has done so despite numerous warnings by the society. [ 12 ] How solid is this argument of the society? Does it provide the “reasonable grounds” mentioned in section 51(3) of the Act ?

To answer this question, one has to look at the evidence. [ 13 ] One of the oddities in the evidentiary standard applicable at the temporary care and custody stage of a child protection case is that the court “may admit and act on evidence that the court considers credible and trustworthy in the circumstances”. [9] This is clearly a relaxation of the standard that applies at other stages of a child protection case, for example, at trial, or that applies throughout a status review proceeding. [ 14 ] There must be some logical reason for the existence of such a statutory exception to what elsewhere seems to be a more stringent evidentiary standard.

One explanation, suggested by the marginal notation to this subsection “Evidence on Adjournments” is that it is only where a child protection application is simply being adjourned that this reduced evidentiary standard applies.

In other words, it was not meant to apply to a “contested” temporary care and custody hearing. [ 15 ] My view is that this relaxed evidentiary standard was intended to compensate for the requirement on a society to have child protection applications before the court within five days of an apprehension. [10] In many cases, it is extremely difficult, if not impossible, to have evidence that meets a more conventional standard before the court in such a short time. When combined with the

requirement on the court to make some kind of temporary care and custody order on each date that the child protection case is before the court, there is some logic to legislating a reduced evidentiary standard, at least to apply in the early stages of a case. [ 16 ] However, as a case ages, and the time pressures are relieved somewhat, the applicability of this looser evidentiary standard becomes more difficult to justify. As time marches on, evidence that was earlier admitted and acted upon as being credible and trustworthy may become less so.

Typically, this happens when the initial evidence is hearsay in nature, or on occasion, double hearsay. [11] It certainly would be the case where responding evidence is filed that contradicts earlier evidence, especially if such earlier evidence was not firsthand. [ 17 ] Perhaps this explains the wording of section 51(7) chosen by the legislative draftsmen of the Act . The wording does not automatically make “admissible” evidence that would normally be inadmissible, even if it is judicially considered to be credible and trustworthy.

What section 51(7) actually does is to create a judicial discretion to admit such evidence. That discretion can be exercised either to accept or reject such evidence. [ 18 ] In the present case, there are many contradictions in the evidence, many assertions and intimations, many qualifications and denials. Ultimately, if the application goes to trial, these will all be tested.

For purposes of the hearing of the motions at tabs 2, 10 and 19, all of which are concerned with the issue of temporary care and custody, the evidence that is critical, in terms of relevance, is that related to a risk that these children are likely to suffer sexual harm, at some point between the present and the time that this case is finally resolved. [ 19 ] The mother’s argument is that the risk is nil at present, and the present is what the court should be limiting itself to considering. Her contention is that Mr.

H.C. is detained in custody and is thus incapable of doing anything that might even remotely be said to create a risk of sexual harm for the two children in this case. Thus, she declares, the society has failed to meet its onus on the first part of the two part test in section 51(3). Therefore, from a statutory perspective, the only temporary care and custody order possible is one that returns the children to her. [ 20 ] Although not as strongly argued, the mother claims that the second part of the two-part test is not met either.

She insists that evidence, taken as a whole, does not meet the threshold of creating reasonable grounds to believe that the children cannot be adequately protected by an order returning them to her care. This, she asserts, is incontestable while Mr. H.C. remains in custody. Even should he be released, she argues that the court can craft an order returning the children to her and be confident that she will abide by any conditions it may wish to impose to ensure that there is no contact between the children and Mr.

H.C. [ 21 ] The society disagrees with limiting the determination of the existence of risk to the present. It does not dispute the mother’s assertion that Mr. H.C. cannot sexually harm these children while he is in custody. Its argument is that the first part of the two- part test in section 51(3) is concerned with risk of likely harm. “Risk” is a word that necessarily is prospective. “Risk” denotes the chances or the odds that something will happen in the future. Accordingly, it is proper to consider contingencies that may materialize in the future. Specifically in this case, the release from custody of Mr.

H.C. is the main contingent event that the society relies upon for the risk of likely harm mentioned in section 51(3) of the Act . [ 22 ] In my view, “risk” is something that can be assessed. That exercise is limited to the present in the sense that the assessment of risk has to be based on the information known at the time of the assessment. That does not mean that one must exclude from the assessment of risk, the happening of future events. However, the determination of whether a future event will or will not take place is an assessment of its own.

The chances of an occurrence of a contingent future event can only be done on the basis of the information that is available in the present. [ 23 ] Taking the society’s argument at its highest, the risk of likely sexual harm is negligible if Mr. H.C. remains incarcerated, and is extremely high if he is released. The contingent event of his release from detention is very determinative as to the degree of the risk. It is thus very important for the court to consider the chances of his being released.

Also, since the present reality is that he is detained, it falls upon the society to persuade the court as to the chances that he will be released from such detention. [ 24 ] That persuasion must necessarily be based on evidence that the court is prepared to admit and act upon. What precisely is that evidence? [ 25 ] On reviewing the evidence filed to date, I find the only evidence that touches on the chances of Mr. H.C.’s being released to be that filed by the society. In fact, this evidence is in allegations of the society’s child protection worker who herself says nothing from her own knowledge about this.

The allegations in her affidavits on this issue are clearly hearsay, and almost exclusively statements made by police officers. [ 26 ] At tab 3, paragraph 5, OPP Detective Constable Fairburn advised the society worker on January 17, 2011 that “they” were unsure if Mr. H.C. would be released from jail. “They” is one of those ubiquitous pronouns that, in the context of this passage, I take to refer to Constable Fairburn and perhaps one or more of his OPP colleagues. This passage has no value today as passage of time has attenuated any mental uncertainty that may have existed on January 17, 2011.

Even if this uncertainty continues among these police officers, their mental state contributes nothing to the determination of whether Mr. H.C. will be released or not. [ 27 ] At tab 3, paragraph 69, OPP Detective Constable Fairburn advised the society worker on January 17, 2011, that “they” are also aware that the mother was at Mr. H.C.’s bail hearing. This passage confirms that a bail hearing was held for Mr. H.C. on some date between January 11, 2011 and January 17, 2011. It is relatively poor evidence otherwise.

It does not state whether “they” know of the mother’s presence by way of firsthand observation, or from some other means. If from some other source, it does not identify this source. It also does not identify the “they” that OPP Detective Constable Fairburn was referring. I would not consider this evidence as either credible or trustworthy. In any event, its contribution to the assessment of chances of release of Mr. H.C. is only to establish that a bail hearing was in fact held. [ 28 ] At tab 3, paragraph 70, on January 17, 2011, OPP Constable Abelson expressed her opinion about the prospects of Mr.

H.C. making contact with the mother “if the father gets out of jail”. I take this reference to “the father” to mean Mr. H.C. Unfortunately,

this opinion, valid as it may be, is premised on a release of Mr. H.C. from custody. It actually says nothing about the chances of that taking place, not even in the form of an opinion. [ 29 ] At tab 16, paragraph 6, is a passage which I reproduce in full: 6. On February 15, 2011, I spoke with Ontario Provincial Police Constable Abelson who advised me that she is concerned that Mr. H.C. will get out of jail, as he continues to attend for bail hearings all of the time and also if Mr. H.C. were to ask for a speedy trial, and he wins and asks for time served, he will get out of jail immediately. This “evidence” is a mixture of: (

a) an expression of concern about a future happening, (

b) factual allegations that are unattributed (i.e. firsthand observation or information obtained from others), and (

c) an opinion based on any of one, two or three contingencies. I suppose that it is possible for an arrested and detained person to have a bail hearing continue on more than one day. However, I am sceptical that our criminal justice system can offer Mr. H.C. multiple bail hearings that he “continues to attend all of the time”. I am even more curious about how Constable Abelson would have been privy to this information on February 15, 2011.

I do not consider any part of this paragraph to be credible or trustworthy other than the fact that Constable Abelson may have expressed a concern to the society’s child protection worker on that date. The only factual allegation that, if I accepted it, would be relevant to an assessment of the prospects of Mr. H.C.’s release from detention, is that he may have had more than one bail hearing by February 15, 2011. [ 30 ] The result of the consideration of the evidence of the society is that I am not persuaded that Mr. H.C. will be released from custody.

The unvarnished facts that no one disputes are that: - he was arrested on January 11, 2011; - he has had at least one bail hearing; - he was not successful in being released on bail; - he has been detained continuously since January 11, 2011 and we are now in the last week of March 2011; - he is facing very serious and multiple sexual offences against a child, for some of which, on conviction, minimum terms of imprisonment are prescribed; - he has twice before been convicted of sexual offences against children, and has served terms of imprisonment on each; - he has breached bail conditions on at least two prior occasions in connection with prior charges; - he has been charged with a sexual offence against the child M., a charge that is not being pursued by the Crown. [ 31 ] Having regard to the foregoing factual circumstances, and to the evidence of the society that I have not rejected, I am not satisfied that Mr.

H.C. is going to be released from custody any time soon. Accordingly, I am not satisfied that reasonable grounds exist at this time, or in the foreseeable future, to believe that there is a risk that either Cassidy or M. are likely to suffer sexual harm of any kind if returned to their mother. [ 32 ] Even if I am wrong in this conclusion, I am equally unsatisfied that a suitably crafted court order will be unable to adequately protect these children if returned to their mother. [ 33 ] These children have been separated from their mother, who is their primary custodial parent and principle caregiver.

That separation has now persisted for over two months. Had the society followed the proper procedure of obtaining an apprehension warrant, this separation might have been avoided entirely. [ 34 ] In any event, the court cannot make an order under section 51(2)(

c) or (

d) and is restricted to a return of the children to the person who had charge prior to the society’s intervention. I propose to make this order under section 51(2)(b). Section 51(3.2) permits the court to impose “reasonable terms and conditions”. What these shall be has not been argued before me. My hope is that the parties will have come to an agreement as to what these terms and conditions will include. [ 35 ] In that regard, I propose that one of the conditions will be that the mother and the children are to move in with the maternal grandmother in her home in the (unlikely) event that Mr.

H.C. is released from custody prior to the final resolution of this child protection case. According to the mother’s evidence, she and the children were residing in the home of the maternal grandmother from June 2009 to November 2009. They can do so again. The maternal grandmother does not like Mr. H.C. and counselled the mother against any relationship with him. She is currently approved by the society as an access supervisor for maternal access visits that take place at her home. [ 36 ] I do not propose to make any order with respect to paternal access since no one has made any claim for such an order.

However, I would be agreeable to doing so on consent of all parties. Failing this, there is an existing “without prejudice” paternal access order in place in this case. I do not know if the terms of the domestic order that was in force prior to the start of this child protection case was more generous in terms of the father’s contact with the two children than the present “without prejudice” order. My preference is to restore whatever paternal access provisions were in effect prior to the commencement of this case. Those were presumably made in the best interests of the children.

The father’s access rights should not be prejudiced simply because the child protection case has intervened. This is especially so in a case like this where the protection concerns are not directed at the father at all.

29 March 2011 Justice John Kukurin Ontario Court of Justice (

a) remain in or be returned to the care and custody of the person who had charge of the child immediately before intervention under this Part; (

b) remain in or be returned to the care and custody of the person referred to in clause (a), subject to the society’s supervision and on such reasonable terms and conditions as the court considers appropriate; (

c) be placed in the care and custody of a person other than the person referred to in clause (a), with the consent of that other person, subject to the society’s supervision and on such reasonable terms and conditions as the court considers appropriate; or (

d) remain or be placed in the care and custody of the society, but not be placed in, (

i) a place of secure custody as defined in

Part IV (Youth Justice), or (ii) a place of open temporary detention as defined in that Part that has not been designated as a place of safety. (

c) the child has been sexually molested or sexually exploited, by the person having charge of the child or by another person where the person having charge of the child knows or should know of the possibility of sexual molestation or sexual exploitation and fails to protect the child; (

d) there is a risk that the child is likely to be sexually molested or sexually exploited as described in clause (c); (

a) the child is in need of protection; and (

b) a less restrictive course of action is not available or will not protect the child adequately (

a) a child is in need of protection; and (

b) 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 subsection 47(1) or obtain a warrant under subsection (2),