Children’s Aid Society of Toronto v. C.P., 2011 ONCJ 550

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 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. C47808/09 DATE: 2011·XI·07 CITATION: Children’s Aid Society of Toronto v. C.P. , 2011 ONCJ 550 ONTARIO COURT OF JUSTICE BETWEEN: CHILDREN’S AID SOCIETY OF TORONTO, Applicant, — AND — C.P., M.Bi. and J.Ba., Respondents. Before Justice Robert J. Spence Heard on 3 November 2011 Reasons for Judgment released on 7 November 2011

CHILD PROTECTION — Status review — Interim care and custody pending status review — Grounds — Statutory presumption for status quo — Whether child’s best interests require change in custody or access — Risk of harm — To rebut statutory presumption, court had to be satisfied that child’s best interests required change in care and custody — To determine what was in child’s best interests, court chose to be guided by subsection 37(3) [non-exhaustive definition of “best interests”] and paragraph 1(2)¶2 [preference for least disruptive course of action] of Child and Family Services Act — Boy (now 15 months old) had been in care of children’s aid society since birth as result of his mother’s unremitting drug abuse — At status review, society sought Crown wardship in accordance with its plan to have child adopted by New Brunswick woman under kinship placement — Father made motion for interim care and custody order pending status review whereby boy would be placed with friends who were husband and wife whose record in supervised access visits to boy was remarkably good — Society opposed father’s motion because husband had long-standing history of high-level alcohol consumption (several cases of beer per week) — About 3 years ago, he trashed various parts of home in drunken rage against wife and had physically assaulted her — Since then, husband and wife had never engaged in any form of couples counselling to get at root of domestic violence issue — After that incident, wife had insisted on zero alcohol tolerance but husband admitted that he had now restricted himself to “1-2 beers” at any time — He claimed to have participated in Alcoholics Anonymous but failed to furnish any proof and was content in knowledge that he had overcome problem without any professional assistance — Court concluded that combination of couple’s failure to engage in counselling, together with husband’s continued use of alcohol posed unacceptable risk of harm to child whose tender age placed him among most vulnerable class of children — Court was also concerned that couple’s affidavit material gave no real detail how they planned to care for child on round-the-clock basis, who was part of their support system, how they would address protection concerns in case of another domestic crisis, who they would call in case of another incident that might threaten child’s safety and wellbeing — Furthermore, couple’s apparent willingness to allow for generous access by father who had significant mental health issues showed their lack of insight and understanding of those mental health issues and lack of recognition that those issues posed risk of harm to child — It never occurred to them to have measures to ensure that child would be protected from his father — Court concluded that it was not in child’s best interests to be placed with this couple — Court dismissed father’s motion.

STATUTES AND REGULATIONS CITED Child and Family Services Act , R.S.O. 1990, c. C-11 [as amended], paragraph 1(2) ¶2, subclause 37(2) ( b )(i), subclause 37(2) ( b )(ii), subsection 37(3) , paragraph 37(3) ¶8, paragraph 37(3)¶10, subsection 64(8) and clause 70(1)( a ). Shiri M. Smolkin ........................................................................... counsel for the applicant society Respondent mother, C.P. ..................................................................................... on her own behalf Colin A.

Tobias .................................................................. counsel for the respondent father, M.Bi. Charlotte L. Murray .................................................. counsel for the respondent added party, J.Ba. [ 1 ] JUSTICE R.J. SPENCE:— This is a motion brought by the father, seeking to vary the temporary placement of the child, D.P. D.P. is currently in the temporary care and custody of the Children’s Aid Society of Toronto (the “society”). The father seeks an order placing D.P. with the father’s friends, Mrs. D.M. and Mr.

S.M. or, in the alternative, for expanded access to both the M.s, as well as to father himself. The society is opposed to this motion, as is Ms. J.Ba., the proposed caregiver who lives in New Brunswick. 1: BACKGROUND [ 2 ] D.P., who was born […], 2010, has been in the care of the society since birth. On 16 December 2010, pursuant to a signed statement of agreed facts, I made an order finding D.P. in need of protection pursuant to subclauses 37(2) ( b )(

i) and (ii) of the Child and Family Services Act , R.S.O. 1990, c. C-11, as amended (the “Act”), and placed D.P. in the care of the society as a society ward for a period of six months. [ 3 ] On the status review, the society initially sought a further period of society wardship. However, the society subsequently amended its status review application to seek Crown wardship for the purpose of adoption. Neither parent has advanced a plan to care for D.P.

The mother is in default of these proceedings, while the father’s plan is for the permanent placement of D.P. with the M.s. [ 4 ] The society investigated the M.s’ plan and has rejected it for a number of reasons. Instead, if D.P. is permitted to remain in the temporary care of the society, it proposes to place D.P. with Ms. J.Ba. as a kith or kin caregiver, with the expectation that Ms. J.Ba. will eventually adopt D.P. Of course, if D.P. is placed with Ms.

J.Ba. in New Brunswick, that will have the effect of drastically reducing the present access between D.P., his father, as well as the M.s, all of whom live in Toronto. 2: THE LEGAL TEST TO VARY THE CURRENT PLACEMENT [ 5 ] Subsection 64(8) of the Act states (my emphasis):

(8) Interim care and custody. — If an application is made under this section, the child shall remain in the care and custody of the person or society having charge of the child until the application is disposed of, unless the court is satisfied that the child’s best interests require a change in the child’s care and custody.

Therefore, D.P. must remain in the society’s legal care and custody unless it can be established that it is in his best interests to vary that order by placing him with the M.s. [ 6 ] In determining what is in a child’s best interests, the court must be guided by two provisions, namely, subsection 37(3) and paragraph 1(2)¶2 of the Act . I direct my consideration primarily to the latter provision as the various factors under subsection 37(3) have limited applicability on the facts of this case, except as I will otherwise discuss in these reasons. Paragraph 1(2) ¶2 of the Act states (my emphasis):

(2) Other purposes.— The additional purposes of this Act , so long as they are consistent with the best interests, protection and well being of children, are: . . . 2. To recognize that the least disruptive course of action that is available and is appropriate in a particular case to help a child should be considered. . . . [ 7 ] D.P. has been in a foster home since birth. Disruption to him would result if he were to be moved from placement to placement, or if he were to be moved to a placement that would not likely be permanent, only to have to be moved once again.

The court’s objective must be to look for permanency planning at the earliest opportunity in a way that is consistent with the child’s best interests and the child’s need for minimal disruption. (See also paragraph 37(3)¶10 of the Act .) 3: DISCUSSION [ 8 ] It is clear from all the evidence that the M.s love this child and very much want to have a child of their own to care for. In or about December 2010, the society became aware of the existence of the M.s, as family friends, through information conveyed to the society by the paternal grandmother.

Since then, the M.s have been exercising fully supervised access at the society’s office twice each week, for a total of three hours. Most of those visits are generally positive, although the society noted that the person providing most of structure during the visits is Mrs. D.M., rather than Mr. S.M., or she and Mr. S.M. together. [ 9 ] In or about March 2011, the society began a kinship assessment of the M.s to determine the appropriateness of placing D.P. with them on a permanent basis. The society rejected the M.s’ plan for a number of reasons, which I will discuss below.

It subsequently conducted a second assessment, this time a protection assessment, which the society rejected as well. [ 10 ] The society’s concerns about placing with the M.s primarily revolve around two main factors — alcohol abuse and domestic violence. During the course of its investigations, and interviews, Mr. S.M. told the society that he had a long-standing history of high-level alcohol consumption. He began drinking in his twenties and his consumption increased to the point where he was drinking several cases of beer each week. In 2008, he assaulted Mrs.

D.M. following the consumption of somewhere between 16 and 24 bottles of beer, and two bottles of wine. According to Mrs. D.M., he began to argue with her late at night, when she objected to getting out of bed and playing video games with him. He then flew into a rage, throwing a beer bottle at the glass door of the china cabinet and breaking most of the crystal glass inside. Mrs. D.M. states: He then went into the kitchen and started to break everything on a metal shelving rack . . . and started to ram the fridge with it [the metal shelving rack] while still cursing and swearing at me.

He destroyed the fridge door and all the food. She tried to get away from him but he followed her outside, continuing to yell at her. When she went back inside the house, he followed her, continuing to yell at her and “ripped off his shirt.” When she again told him she was going to leave, he grabbed her by the wrists and “pinned me to the door by my wrists”; however, Mrs. D.M. states: “he did not pin me hard”. She called the police who took him away and charged him with assault. For his part, Mr. S.M. claims to have little memory of what happened.

During the course of argument on this motion, father’s counsel (advocating on behalf of placement with the M.

s) referred to this incident as a “hiccup”. [ 11 ] Mr. S.M. stated that, in the months and years leading up to this incident, he would drink 24-36 beers during the week and “maybe a 24 pack on the weekend”. [ 12 ] Following this incident, Mr. S.M. enrolled in and completed the Partner Assault Response Program as well as an anger management program. [ 13 ] Mrs. D.M. was prepared to give Mr. S.M. another chance after this incident. However, she imposed several conditions, including: “NO MORE DRINKS AT HOME” (her emphasis) and “Not more than 2 to 3 drinks at special occasions”.

She states in her evidence that things have changed for the better since that incident and she and Mr. S.M. are ready to proceed with having D.P. placed in their care. [ 14 ] Mr. S.M. states (my emphasis): I have learned my lesson from that incident. . . . When I drink at home , it might be 1-2 beers at a time if I am by myself. I also drink on holidays with family and friends or special occasions such as birthday, with visiting friends from out of town etc . [ 15 ] What I note from the two preceding paragraphs is that it was extremely important from Mrs. D.M.’s perspective that Mr.

[ 15 ] What I note from the two preceding paragraphs is that it was extremely important from Mrs. D.M.’s perspective that Mr. S.M. not drink at home any longer. However, Mr. S.M. himself states that he continues to drink at home, although he says that he limits the amount he drinks to “1-2 beers at a time”. It is also noteworthy that Mr. S.M. continues to drink outside the home on the occasions he indicates. [ 16 ] From a protection perspective, a number of issues remain unaddressed. First, there is the issue of couples counselling. For whatever reason, Mr.

S.M. decided to take out his anger on his wife on the occasion of the assault in 2008. And yet the two of them have never engaged in any form of couples counselling to get at the root of this issue — specifically, why was his anger directed at his wife, how can the parties better address communication issues, and so on — the very kinds of things that couples counselling seeks to address. It appears from the M.s’ evidence that, quite simply, they believe there is no need for any such counselling. [ 17 ] Second, given the lengthy history of high levels of alcohol consumption, what steps did Mr.

S.M. take to address what clearly had become a problem for him? At one point, he told the society worker that he had previously attended Alcoholics Anonymous (“AA”). But he provided no details about the AA program, what the program’s objectives are or any specifics as to how the program works. As a result, the worker had reason to question Mr. S.M.’s credibility about having attended AA. Nor did Mr. S.M. give a reason why he had stopped attending AA. I agree that the society has good reason to be sceptical regarding Mr.

S.M.’s supposed attendance at AA. [ 18 ] Furthermore, it is commonly understood that the only way to address alcohol addiction — and certainly the approach taken by AA — is to abstain completely from alcohol consumption. By his own evidence, Mr. S.M. states that he continues to drink. The incident in 2008 arose in connection with Mr. S.M.’s playing video games and drinking at the same time. And today, Mr. S.M. admits to the society that he still drinks while he plays video games because it is more fun to play those games while drinking. [ 19 ] From all of the above, I conclude that Mr.

S.M. was not truthful about his attendance at AA or, alternatively, if he attended AA, it was for a very brief period of time and he likely decided that he was not prepared to deal with his problem by the fundamentally recognized method of addressing alcohol abuse, namely, total abstinence. [ 20 ] I return to the characterization of the 2008 incident as a “hiccup”. I recognize that there is no evidence of any prior domestic assaults or any such assaults subsequent to 2008. However, the larger problem of alcohol and domestic violence is far more than simply a hiccup. In her own evidence, Mrs.

D.M. states that she and her husband began having problems at least two or three years before the assault in 2008. There is no indication that the two of them engaged in any form of counselling in that two-to-three year period in an attempt to resolve their issues. In her own heart, Mrs. D.M. was keenly aware that any continued drinking at home, after the 2008 incident, would be a recipe for potential disaster; and she made that perfectly clear in the manner in which she set that out in her affidavit. Yet despite this, Mr.

S.M. continues to drink at home. [ 21 ] The overall tenor of the M.s’ evidence — and particularly Mr. S.M.’s evidence — is a downplaying of what was certainly a very serious incident in 2008. They would both have had more credibility had they unreservedly acknowledged the seriousness of what occurred in 2008 and then actively engaged in remediation efforts to address both the domestic violence issue as well as Mr. S.M.’s excessive drinking. Instead, not only do they minimize what has occurred, not only have they not engaged in any form of counselling, but Mr.

S.M. himself categorically denies that he has any form of drinking problem today, for which outside assistance is required. [ 22 ] In my view, the combination of the M.s’ failure to engage in counselling, together with Mr. S.M.’s continued use of alcohol poses an unacceptable risk of harm to D.P. — all the more so because he is only 15 months old and, as such, is among the most vulnerable class of children. [ 23 ] Furthermore, an examination of the affidavits of both Mr. S.M. and Mrs. D.M. are notable for significant omissions.

Neither affidavit contains any real detail how they would plan to care for D.P. on a 7/24 basis, who their supports would be, how they would address protection concerns in the event of another crisis in the family home, who they would call in the event of another incident that might threaten D.P.’s safety and wellbeing. [ 24 ] I also note that the father — who is not planning for D.P. — is very much aligned with the M.s. In fact, in this same notice of motion that seeks to place D.P. with the M.s, the father himself asks for expanded, unsupervised access in the community.

The evidence is clear that the father is not only unable to plan for D.P., but that he would be a risk to D.P. were he to have unsupervised access. The father reports to the society about his own self-described mental health issues. What insights and understanding do the M.s have of these mental health issues? Do the M.s recognize that these mental health issues pose a risk of harm to D.P.? If D.P. were placed with the M.s, what steps would they take to ensure that D.P. is protected from his father? Why are the M.s seemingly not opposed to the father’s request for expanded, liberalized access to D.P.?

These questions are entirely unanswered in the evidence presented by the M.s. And the M.s’ failure to address these questions adds to the risk of harm to D.P. [ 25 ] Given all of this, I am unable to conclude that it is in D.P.’s best interests that he be placed with the M.s. [ 26 ] Having reached this conclusion, it is not strictly necessary for me to comment on the society’s intention to place D.P. with Ms. J.Ba. in New Brunswick.

However, I choose to do so because, in my view, this proposed placement would appear to be a very strong placement, one that augurs well for D.P.’s permanency planning. (See also paragraph 37(3)¶8 of the Act .) Ms. J.Ba. has known D.P. since his birth. She was assessed by the relevant New Brunswick child protection authorities and she was recommended as a suitable caregiver. Further, she has been coming to Toronto on a regular basis — at her own expense — in order to visit with D.P. And by all accounts, those visits have been very successful.

She presents as sensitive and understanding of D.P.’s needs; and she is very child- focused in her approach to D.P. There is no suggestion — not even from the father or the M.s — that Ms. J.Ba. would be anything other than an excellent caregiver to D.P. She has experience dealing with special needs children, something that may be of great importance in D.P.’s case, as he may well have been adversely affected by his mother’s unremitting drug abuse, which was likely part of her lifestyle during her pregnancy with D.P. Ms. J.Ba.’s plan to care for D.P. is not only very detailed, but it includes extensive supports.

On all of the evidence, it appears to me that D.P.’s placement with Ms. J.Ba. is likely to be a permanent one. [ 27 ] I appreciate that my rejection of the M.s’ plan has real implications not only for the M.s, but for the paternal family as

well. As D.P.’s legal guardian, the society will now have the right to place him with Ms. J.Ba. And that placement, by necessity, means that the access currently enjoyed by the paternal family will be significantly curtailed. Ms. J.Ba. has stated that she will co-operate in facilitating technology-based access between D.P. and his paternal family — that is, through Skype, e-mail, and so on, as well as sending photographs and cards. However, realistically, this cannot replace in-person access, regardless of Ms.

J.Ba.’s good intentions. [ 28 ] Father’s counsel argued that it would be open for the court to reject the M.s’ motion for placement with them and still prevent D.P. from being placed with Ms. J.Ba. in New Brunswick, thereby preserving the contact between D.P. and the paternal family. This could be done, he argued, by making a specific access order in favour of the M.s and the father such that, in practical terms, the access could only be carried out if D.P. continued to live in Toronto, still in the society’s temporary care. The current access order is in the discretion of the society.

Were I to make an access order — for example — for twice-weekly access with the M.s, as well as additional access to the father and the paternal family, this would in all likelihood have the practical effect of keeping D.P. in Toronto, as it would be next-to-impossible for the society to move him to New Brunswick and to return him to Toronto on multiple occasions each week to comply with an access order. [ 29 ] However, in my view, such an access order would be neither in D.P.’s best interests, nor would it be the “least disruptive course of action that is available and appropriate” to meet D.P.’s needs.

At the age of 15 months, and having spent his entire life in foster care, D.P.’s current placement exceeds the statutory time limit for an in-care placement, as permitted by clause 70(1) (

a) of the Act , which limits such a placement to 12 months for children under the age of six years. While technically, a dismissal of the M.s’ motion and D.P.’s resultant placement with Ms. J.Ba. in New Brunswick would still be the legal equivalent of an in-care order (because the initial placement with Ms. J.Ba. would be a temporary kith or kin in-care placement pending a final order), the practical effect of such an order would be to get D.P. out of foster care and into the care of the person who, in all likelihood, will be his permanent caregiver.

And permanency planning is what the Act is directed to achieving. 4: CONCLUSION [ 30 ] In the result, I dismiss the father’s motion in its entirety. The result of the dismissal is that the society retains legal care of D.P. and is free to place him with Ms.

J.Ba. at the earliest opportunity, with continued access to the paternal family in Toronto remaining in the discretion of the society. [ 31 ] I would expect the society to move D.P. as quickly as possible given the length of time that he has remained in his current foster placement. [ 32 ] As regards access to the paternal family, I would encourage the society to convene a meeting — perhaps a family group conference — with all the interested family members, as well as with Ms.

J.Ba., in order to discuss the best options available for maintaining a safe and appropriate connection between D.P. and his paternal family in Toronto. [ 33 ] Finally, while I recognize that the placement in New Brunswick is, in legal terms, simply a continuation of the current temporary care and custody order in favour of the society, I urge the parties to give this placement a few months in order to assess its viability.

If that placement does unfold in the positive way that I expect, it is my hope that the paternal family will accept this placement as a permanent one and something that is D.P.’s best interests, thereby obviating the need for a trial, or a motion for

summary judgment that the society would undoubtedly bring.