Children’s Aid Society of Algoma v. D.M., 2011 ONCJ 817

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. Sault Ste. Marie Registry No. 116/2011 DATE: 2011·XI·02 CITATION: Children’s Aid Society of Algoma v. D.M. , 2011 ONCJ 817 ONTARIO COURT OF JUSTICE BETWEEN: ) ) CHILDREN’S AID SOCIETY OF ALGOMA ) ) Jennifer A. Mealey, for the applicant society ) ) — AND — ) ) ) D.M. and J.B. ) ) T.

Frederick Baxter, for the respondent parents ) ) ) HEARD: 2 August 2011; and 19 October 2011 [ 1 ] JUSTICE J. KUKURIN:— This case presents an unusual set of circumstances. It is a child protection case in which two children A. (age five) and N. (age two and a half) were apprehended by the applicant society five months ago. [ 2 ] On the first court appearance, an interim “without prejudice” order was made for temporary care and custody in favour of the society, with provisions for both maternal and paternal access. [ 3 ] A temporary care and custody hearing was scheduled after the parents, Ms. D.M. and Mr.

J.B., had retained counsel and had filed some responding evidence. At the conclusion of this hearing, I indicated orally that I was inclined to make an order pursuant to clause 51(2) (

b) of the Child and Family Services Act , R.S.O. 1990, c. C-11, as amended, returning the children to the temporary care and custody of their mother, subject to an interim supervision order, with conditions. However, I was not prepared to return the children to their father. This presented a problem as the mother and the father were living together, both prior to and after the apprehension.

[ 4 ] The temporary care and custody hearing was adjourned to give the society and the parents a brief time (one day) to arrive at mutually agreeable terms of paternal access. This access was intended to be exercised with the children back home living with their mother, and the father living elsewhere. The parties could not agree on interim paternal access terms. This was in early August.

The hearing was further adjourned for filing of additional evidence and for further argument so that a judicial order could be made setting out these specific details of paternal access. [ 5 ] The continuation of the hearing did not take place until October 19, 2011, two and a half months later. In the meantime, the “without prejudice” interim order remained in effect. For a time, the father did not exercise access. However, by mid-September, some supervised access visits involving both parents were arranged at the society’s premises. The first two, on September 23 and September 28, were quite positive.

At the visit on October 5, the father acted appropriately for the first hour and then, for some reason of which no one is quite sure, he lost his self-control.

The society’s evidence describes this incident and the father in considerable detail: . . . suddenly became very upset . . . into a rant . . . escalating in his tone and volume . . . random comments . . . [nothing] precipitated such a reaction . . . sudden outburst . . . yelling at the top of his voice . . . pacing back and forth . . . flailing his arms . . . yelling and swearing . . . unprovoked reaction and rage . . . [language] extremely vulgar . . . numerous vile comments . . . randomly jumping from subject to subject . . . blaming the society . . . no focus to the father’s rant . . . clearly in a rage [ 6 ] The father was not receptive to efforts by society personnel to get him to calm down, but he eventually left on his own, continuing to vent very loudly.

His behaviour upset everyone: the children, the society access workers present, other families in the building who were engaged in their own access visits, even the mother who had witnessed his similar behaviour before. [ 7 ] The society, if not immediately, within a very short time, prepared a motion (at tab 17) for an order to vary the existing without prejudice interim order, by deleting therefrom the provision for paternal access and substituting in place thereof an order that the father was to have no access except with agreement of the society, or upon further order of the court.

Since this motion dealt with the same issue as was involved in the temporary care and custody motion that had been adjourned from early August, they were heard together. [ 8 ] The mother and father remained together and remained united in their resolve to oppose the society. They have the same counsel in this case. They do not plan to separate. In fact, there is evidence that the mother cannot afford to separate. The father receives ODSP benefits, which include the mother. The family was in the process of moving to new, and considerably superior, accommodations when the children were apprehended.

The mother, on her own, could not continue to pay the rent and utilities. More to the point, she does not want to leave the father. [ 9 ] As dramatic as the October 5, 2011 access visit may have been, it would be an error to allow it to overshadow what this case is all about. The society took two young children away from their parents with whom they have lived their entire lives. They have been in a foster home now over five months.

The only basis for such an intervention is to protect the children from likely harm. [1] What particular harms the society feels were likely in this case can be inferred from two things: from the grounds relied upon by the society for a finding that these children are in need of protection, and from the factual allegations in its evidence that underlie those grounds. [ 10 ] The grounds are under clause 37(2)( a ), subclause 37(2)( a )(ii), clause 37(2)( b ), subclause 37(2)( b )(i), subclause 37(2)( b )(ii), for both children, and clause 37(2)(

h) for the child N. only. [2] Clearly the main concern in terms of harm is believed by the society to be “physical harm”.

With respect to N., the concern was also that she suffered from a developmental condition (lag) and the parents were doing nothing to remedy this condition. [ 11 ] As to the underlying factual allegations, these included: • dental neglect for both children; • insufficient food in the home; • inappropriate discipline methods; • marijuana use by both parents; • the mother’s suretyship for a close friend charged with offences under the Controlled Drugs and Substances Act , S.C. 1996, c. 19, as amended, which including residency with the mother; • the father’s volatility, verbal aggression, loss of temper, lack of self-control, yelling and swearing, and his chronic use of coarse language; • N.’s speech-language delays; • N.’s seizures; • lack of cooperation with the society. [ 12 ] Of increasing importance, as this child protection case goes on, is the claim of the society, namely for wardship of the children for six months.

Both children are under age six. In less than a month, they will have been in continuous care of the society for six months. The court will then be precluded from making the six-month wardship order sought by the society. [3] This case has not yet had a trial management conference, which is virtually a condition precedent to obtaining trial dates. With the grounds relied upon by the society, it will have to adduce considerable historical evidence as well as evidence of current circumstances. The parents are contesting all aspects of this case.

My conclusion is that a trial will be lengthy. [ 13 ] There is currently (and it seems, perpetually) a considerable delay in getting to even the first day of a trial, to say nothing of the completion. What is the logical outcome of all of these factors? They are a recipe for a case of Crown wardship, with no access, for the purpose of adoption. Even should the children be ultimately returned to their parents, they will have spent, for certain, at least a year, and quite likely, two years in foster care if this case progresses on its present course.

This seems extremely incongruous considering that I expected these children to go home to their mother two months ago. [ 14 ] The father’s propensity to become verbally aggressive, to use vulgar language and to rant in a loud voice should have been

well within the society’s knowledge. In fact, the incident that precipitated the apprehension of these two children involved similar behaviour by the father. Two of the society’s child protection workers had attended at the home, unannounced, to investigate a telephone report (made to a third society worker) from a previous client of the society who wished to remain “anonymous” (and still remains so). The mother was not home at the time. The child N. was sleeping. The father did not want to wake her.

The father stated that he had an appointment already scheduled the following week with the child protection worker. When told of the reason for the visit, namely, to discuss with him the referral concerns prompted by the report of the anonymous former client, the father, whom the society had already observed to be agitated, began yelling, swearing, shouting aggressively and repeatedly stated “Get the fuck out of my house”. The society workers did not quickly get the hint that he wanted them to leave, but eventually they did so. They obtained an apprehension warrant and the next day, apprehended both children.

A. was not at home during this incident. When she was apprehended, she was at her school. [ 15 ] This incident was hardly an aberration. The father had a child B. (now age 10), with a former partner with whom he had been engaged in a protracted and high conflict custody and access litigation. [4] The society had a history of involvement with them and was, from that involvement, well aware of the father’s verbal aggressiveness and his many other social difficulties. It has also been involved with the mother and father in this case since 2006, even before the older child A. was born.

It opened and closed files in 2007, 2008 and 2009. The complaints about the father were always the same, a recurrent litany of his temper flare-ups, abusive language and difficulty interacting civilly with just about everyone on anything but a short term basis. [ 16 ] Forewarned by society records about the father’s unusual manner of social interaction, it is surprising that the society workers insisted on engaging in their investigation with him alone, particularly after he told them, and more than once, to leave. [ 17 ] Enough said about the father. My intention was to return the children to their mother.

She was not even at home during the incident that precipitated the intervention. She does not interact with others like the father does. She is not a model of motherhood and housekeeping, but she can, in my view, parent adequately.

I would have few concerns about her care of these two children with the society supervision order in place, with conditions to address areas of concern, and with the father living elsewhere for the time being. [ 18 ] From a statutory point of view, the society has not met the second part of the two-part test set out in subsection 51(3) of the Act. [5] But for the father being in the home, I was satisfied that the children would be adequately protected by being returned to their mother. [ 19 ] From a factual standpoint, there is no question that the children’s teeth were significantly delayed.

However, the mother realized the cause even though this was late in the day. She was taking steps to get both children the services of a dentist. In fact, the evidence indicates that dental appointments were imminent when the children were apprehended. The needed dental work has now been done. Recurrence of this concern is controllable with society monitoring through a supervision order. [ 20 ] The evidence that there was no food or insufficient food in the home was less than persuasive. The majority of the evidence was to the contrary.

Only two specific incidents were recounted, for which the parents had plausible explanations and these were clearly situational and unforeseeable. It is hard to believe that this was so significant a concern particularly as the society did not apprehend in its five years of its involvement with this family. [ 21 ] The parents admitted to occasional (two to three times per month) marijuana use but never in the home, and never in the presence of the children. Is this a reason for apprehension? It has not been, even though the society has been aware of this marijuana use for quite some time.

The hair follicle testing of the children subsequent to apprehension was totally negative for cocaine, opioids and cannabis products for A., and only for a trace amount of cannabinoids for N.. The explanations for this proffered by the society and by the mother are both equivocal and either may be true. I do not believe that drug use in this family is a significant source of risk of harm. In any event, I believe that a prohibition of marijuana use by the mother would be complied with. [ 22 ] The mother was a bail surety for a longstanding female friend who was charged with drug offences.

The bail condition required that friend to live with the mother. Perhaps this was unwise. However, there is no evidence that the children were ever alone with this person, or that this person actually “resided” at their home. This suretyship appears to have been short-lived in any event as the father objected to this condition. This was no longer a concern by date of apprehension and certainly is not now. [ 23 ] A., now age six, appears to be meeting all of her developmental milestones. N., age three and a half, lags in her speech development.

The society noted this and recommended that N. attend for a speech language screen with Algoma Public Health. Its evidence is that the parents refused. The mother’s evidence is that N.’s speech was improving, that an Algoma Family Services worker she had informally encountered had suggested that she might wait a while longer before putting N. into speech therapy as some children are slower to develop. The society has, since apprehension, arranged the developmental screen that recommended a formal assessment by a speech language pathologist. This was done at the end of August 2011.

The findings were a delay in expressive language, somewhat delayed in receptive language skills, and appeared to be delayed in social communication. The recommendation was for intervention by way of caregiver ( i.e., foster mother) training and group treatment. Why N. is speech delayed is not identified in the assessment or otherwise in the evidence. Her lag does not appear to be an excessive one. There is nothing to causally connect this child’s speech delay to the actions of either parent. The mother does not seem to oppose speech therapy.

In any event, therapy can be a basis for a supervision condition. [ 24 ] As for N.’s seizures, I am unconvinced that she has, or even had, any. [ 25 ] Co-operation with the society is not a condition precedent for keeping one’s children. Put more accurately, non-co- operation with the society is not, in itself, a justification for apprehending children. In this case, there is actually very little evidence of non-co-operation with the society on the part of the mother. In fact, it was the mother who had most of the meaningful communications with the society workers throughout the society’s involvement.

Although she may have disagreed at times with society workers on certain matters, she kept the lines of communication open. Accordingly, I do not see this as a reason to preclude a return of the children to the mother. The mother’s relationship with the society would not act to frustrate a supervision order. [ 26 ] This would not be the case with the father. Why he behaves the way he does is not at all clear. His behaviour is aberrant

and abnormal. There are references to mental health issues (agoraphobia, social anxiety and dysphoric mania) with which he may or may not have been diagnosed. There are also references to prescribed medications which he does not appear to take any longer. In short, his mental health picture is very muddled and uncertain and whether or what impact it has on his behaviour is unknown. [ 27 ] It is the father’s behaviour that is the biggest problem in this case. It is perceived by the society as hostile, sarcastic and threatening.

It is a fair inference that the society cannot work with him in the context of the supervision order. It is an equally fair inference that, with his present attitude, and with whatever problems afflict him, he cannot work with the society. [ 28 ] This is not all, however. I cannot infer from the evidence that the father has ever physically harmed any child. I discount totally reports by an anonymous referent that the parents locked the children in separate rooms and tied the door handles with bed sheets to prevent them from coming out.

In fact, I am more impressed with the evidence that suggests that the father loves all three of his children and is protective of them. If he has problems with others, it is with adults. [ 29 ] That he has problems with adults, and not just society workers, is very evident. Moreover, his manner of dealing with these adults has been, at minimum, inappropriate, and more often than not, outrageous and inexcusable. He physically assaulted the mother, albeit in 2006, and was arrested, charged, detained in custody, and convicted.

The society’s evidence refers to “extensive criminal behaviour, which includes two charges of assault in 2004, two charges of threatening in 2010, and one charge of mischief shortly after the apprehension in 2011. [ 30 ] This criminal behaviour involves violence, either actual or threatened. However, there has been violence apart from occasions that involved consequences in the criminal justice system. He has, more than once, had physical fights with his own sister, in one of which she stabbed him. He had very conflicted relationship with A.B.’s mother.

The society refers to (at least) two charges related to domestic violence of which it is aware. [ 31 ] More significantly, when the father loses his self-control, he does not seem to care who is present. He has engaged in his behaviour with his own children present, and they have become visibly scared and upset. [ 32 ] There is no way to predict what may set the father off. There is no way to calm him down once he goes on a rant.

Despite the insistence of the mother and of the paternal grandmother that his bark is worse than his bite, I view the father as a risk of physical harm and likely of emotional harm. [6] Children should not be caught in the cross fire of adults in conflict. [ 33 ] The unusual aspect of this case is that an otherwise acceptable mother remains in a cohabitation relationship with a father who is not acceptable either as a caregiver or as a co-resident with the caregiver of these children. [ 34 ] My decision remains to place the children with their mother provided that the father does not live in the home and has no contact with the children except as ordered by this court.

This places the onus directly on the mother. If she wants to have A. and N. back, she must satisfy the court of the foregoing and find some way to control the father. In that regard, I would be amenable to making an order under

section 80 of the Act [7] to assist the mother. [ 35 ] If the mother continues with her present resolve to continue her cohabitation with the father, I have no choice but to make an order under clause 51(2)(

d) of the Act keeping the children in the temporary care and custody of the society. If this results, my prediction is that the mother and father should prepare to live their lives without their children. [ 36 ] As for paternal access, I am prepared to make an order suspending the father’s access pending a decision by the mother and pending the making of an order for temporary care and custody.

It should be very rare that an order of no parental access be made even on a temporary basis. [ 37 ] Should the children not be returned to the mother’s temporary care and custody, she should have frequent and expansive interim access in circumstances where the father will not be present. [ 38 ] As a postscript, I note the evidence of the mother that N.’s surname is B. and not M. The identification findings under section 47(2) of the Act should be amended accordingly, and all references to this child’s surname should conform. Released: 2 November 2011 Justice John Kukurin

(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 caused by or resulting from that person’s, . . . (ii) pattern of neglect in caring for, providing for, supervising or protecting the child; (

b) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by 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;

. . . (

h) the child suffers from a mental, emotional or developmental condition that, if not remedied, could seriously impair the child’s development and the child’s parent or the person having charge of the child does not provide, or refuses or is unavailable or unable to consent to, treatment to remedy or alleviate the condition; 70. Time limit.—

(1) Subject to subsections (3) and (4), the court shall not make an order for society wardship under this Part that results in a child being a society ward for a period exceeding, ( a ) 12 months, if the child is less than 6 years of age on the day the court makes an order for society wardship; or . . .

(3) Criteria.— The court shall not make an order under clause (2)(

c) or (

d) unless the court is satisfied that there are reasonable grounds to believe that there is a risk that the child is likely to suffer harm and that the child cannot be protected adequately by an order under clause (2)(

a) or ( b ).

(2) Custody during adjournment.— Where a hearing is adjourned, the court shall make a temporary order for care and custody providing that the child, (

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. 80. Restraining order.—

(1) Instead of making an order under subsection 57(1) or

section 65.2 or in addition to making a temporary order under subsection 51(2) or an order under subsection 57(1) or

section 65.2, the court may make one or more of the following orders in the child’s best interests: 1. An order restraining or prohibiting a person’s access to or contact with the child, and may include in the order such directions as the court considers appropriate for implementing the order and protecting the child. 2. An order restraining or prohibiting a person’s contact with the person who has lawful custody of the child following a temporary order under subsection 51(2) or an order under subsection 57(1) or clause 65.2(1)(

a) or ( b ).