Children’s Aid Society of Algoma v. L.G., 2011 ONCJ 392

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. Elliot Lake Registry No. 12/10 DATE: 2011·VII·22 CITATION: Children’s Aid Society of Algoma v. L.G. , 2011 ONCJ 392 ONTARIO COURT OF JUSTICE BETWEEN: CHILDREN’S AID SOCIETY OF ALGOMA, Applicant, — AND — L.G., H.B. and A.G., Respondents. Before Justice Robert P. Villeneuve Heard on 7 March 2011 Endorsement inscribed on 22 July 2011

CHILD PROTECTION — Interim access — Variation — Terms of order — Frequency of access — Children’s aid society had apprehended child (now 7½ years old) from care of her paternal step-grandmother on grounds that she used excessive physical discipline of child while apparently under influence of illicit substances and drugs — Court made interim care and custody order placing child into society’s care and soon thereafter, society placed girl into care of her natural father, subject to society supervision and grandmother’s access — Grandmother failed in her motion to vary interim order because 3 sets of hair follicle tests showed that she was still abusing drugs — She also asked for change in terms of access that currently limited her to 3 hours per week and irregular telephone access — After review of evidence, motion judge could find no reason to increase grandmother’s access, adding that grandmother’s primary focus at this time should be dealing with her significant drug and alcohol issues — Judge was prepared to allow society to deal with any expansion of access (whether in terms of hours or terms of freedom from supervision) on basis of changing circumstances.

CHILD PROTECTION — Interim Care and Custody — Variation — Grounds — Reasonable grounds to believe in risk of child’s likelihood to suffer harm — Local children’s aid society had apprehended child (now 7½ years old) from care of her paternal step- grandmother as result of anonymous tips about grandmother’s excessive physical discipline of child — She faced criminal charges for that behaviour as well but was eventually acquitted — Under interim care and custody order, child remained in society’s care and soon thereafter, placed into care of her natural father, subject to society supervision and grandmother’s access — Society’s position was that grandmother might well have engaged in abusive behaviour towards child while under the influence of illicit substances and drugs — At her motion to vary interim care and custody order, grandmother claimed that she had abstained from drugs since court appearance 10 months ago, although 2 hair follicle tests conducted shortly thereafter indicated that this was not so — Court was prepared give some credence to her argument that tests taken so shortly after her abstention might carry traces of drugs and all parties agreed on 3rd test that was made 4 months ago — Unfortunately for her, test results still registered positive — Motion judge observed that grandmother’s motion involved 2 stages: • threshold test of showing material change in circumstances since date of last interim order; • absence of reasonable grounds to believe that there was risk that child would be likely to suffer harm if returned to grandmother and that the child could not be protected adequately by supervision order Grandmother argued that her acquittal in criminal court constituted material change in circumstances — Society disagreed — Motion judge concluded that it was no necessary to deal with this issue — Even if grandmother were right about acquittal as material change in circumstances, she would fail on merits of her motion — Results of 3rd test and fact that 2 other children in her care showed traces of illicit drugs lead judge to conclude that child’s return to grandmother would create risk such that child would be likely to suffer harm and that there were no terms of supervision that court could impose that would address this risk of harm — Grandmother’s motion dismissed.

STATUTES AND REGULATIONS CITED Child and Family Services Act , R.S.O. 1990, c. C-11 [as amended], subsection 51(6) and subsection 51(7) . Bonnie L. Ostroski ........................................................................ counsel for the applicant society Respondent father, A.G. ....................................................................................... on his own behalf Eric D. McCooeye ................................ counsel for the respondent paternal step-grandmother, L.G. [ 1 ] JUSTICE R.P.

VILLENEUVE ( endorsement ):— This endorsement pertains to a notice of motion brought by the respondent, Ms. L.G., and found at tab 11, volume 1 of the continuing record for an order pursuant to subsection 51(6) of the Child and Family Services Act , R.S.O. 1990, c. C-11 [as amended], reviewing an order of this court dated 22 February 2010. [ 2 ] It must be noted at the outset that, although the matter was argued on 7 March 2011, as can be determined from the endorsement of that same date, the court was advised that Ms. L.G. had recently undergone a segmented hair follicle test in March of 2011.

As of the hearing of this motion on 7 March 2011, those results were unknown. There had been two prior collections of hair samples from Ms. L.G. on 8 October and 20 December 2010. The results of those tests are set out as exhibits “A” and “B” of the society’s affidavit at tab 16. Those same test results were appended to the affidavit filed at tab 15 of the society. [ 3 ] There arose an issue, however, based on the contention by Ms.

L.G. that, since September of 2010, she had not consumed illegal drugs or substances and, as such, a determination was made to conduct segmented testing on a hair sample collected on 3 March 2011. For obvious reasons, the results of those segmented hair tests were not available at the hearing of this motion. It was agreed by all parties that, upon receipt of the segmented drug tests results on the hair follicle testing, written submissions would be filed by all of the parties. The most recent filing was a filing made by Mr.

A.G. filed with this court on 23 June 2011. [ 4 ] By way of background, this child protection file deals with one child — namely R.K.H.B., born on […] September 2003. This child was apprehended on 17 February 2010 as a result of an anonymous complaint arising out of alleged improper physical discipline of the child by the respondent Ms. L.G. Ms. L.G. is the paternal step-grandmother of the child R.K.H.B. Ms.

L.G. had custody of the child R.K.H.B. at the time of the child’s apprehension. [ 5 ] This court made an order on 22 February 2010 on an interim “without prejudice” basis placing the child R.K.H.B. in the temporary care and custody of the applicant Children’s Aid Society of Algoma. That order went on to provide access terms for the paternal step-grandmother, Ms. L.G. The next order made by the court is dated 26 April 2010. On consent, the child R.K.H.B. was placed in the interim care and custody of her father, Mr. A.G., subject to the interim supervision of the society with access to Ms.

L.G. as stipulated in paragraph 2 of that order.

[ 6 ] As stated, the initial apprehension and the subsequent court orders mentioned above were made in response to allegations from an anonymous third party and then from the child directly to the Ontario Provincial Police of excessive physical disciplining of the child on the part of the paternal step-grandmother, Ms. L.G. Those charges were eventually heard in Blind River.

The Crown was unable to meet the evidentiary burden imposed upon it in a criminal trial and all charges were dismissed. [ 7 ] In the interim, this court made an order on 21 September 2010 returning two younger children, the subject of a separate child protection file, to the care of Ms. L.G. Ms. L.G.’s evidence at that time was that, although she admitted to consuming illicit substances and drugs on a limited basis, she had not consumed any such substances since the return of the two children aforementioned to her on 21 September 2010. [ 8 ] It was the intention of Ms.

L.G. following the dismissal of criminal charges to bring this motion for a review of this court’s order of 26 April 2010. That motion, dated 6 January 2011 found at tab 11 of volume 1 of the continuing record, was returnable on 17 January 2011 at 1:00 p.m. [ 9 ] Ms. L.G., through her counsel, in her motion at tab 11, seeks a review of the aforementioned court order on the basis that there has been a material change in circumstances in that the alleged improper physical discipline of the child R.K.H.B. leading to that child’s apprehension was unproven in court. Counsel for Ms.

L.G. submitted on 7 March 2011 and in written submissions that the fact that these allegations were incapable of being proven in court was in of itself a material change in circumstances that would fall within the test required in subsections 51(6) and (7). [ 10 ] The society was of the view and took the position on the hearing of this motion that the fact that the Crown was unable to meet the heavy onus imposed upon it of proof beyond a reasonable doubt of the offences before the court did not constitute a material change in circumstances.

The society continues to rely upon the utterances of the child and of the anonymous third party in support of the grounds for the initial apprehension. [ 11 ] In the interim, there have been three hair follicle tests completed. The first sample was collected on 8 October 2010. The results of that testing is set out in correspondence from Motherisk Drug Testing Laboratory and found as exhibit “A” to the society’s affidavit at tab 16 of volume 1. An analysis of the collected sample revealed positive tests for the presence of cocaine and benzoylecgonine.

Both of these substances were stated to be in the medium range based on the scale established by Motherisk Laboratory. A second hair follicle testing was completed on a sample collected on 20 December 2010. That sample tested positive for cocaine, benzoylecgonine, cocaethylene, codeine, oxycodone, cannabinoids and alcohol. [ 12 ] In response to those tests, Ms. L.G. raised the issue to challenge the rate of her hair growth.

She maintained that the hair follicle testing completed in October and December of 2010 was not inconsistent with her stated position in her affidavit evidence that she had not consumed any of those substances following the return of the two children, the subject of another child protection proceeding on 21 September 2010. [ 13 ] As a result of that position and the hair follicle testing results, all parties agreed that a segmented testing would be conducted and that hair sample was collected on 3 March 2011. The results of the testing of that sample are set out in exhibit “F” in the affidavit at tab 16.

As stated, the segmented testing was conducted in response to Ms. L.G.’s allegation and disagreement with the Motherisk calculations of hair growth rates. [ 14 ] The segmented test results at exhibit “F” would clearly seem to contradict the position taken by Ms.

L.G. and in particular, her allegation in her affidavit evidence of not having consumed illicit substances and drugs not prescribed for her since 21 September 2010. [ 15 ] The society has furthermore provided as exhibit “E” to its affidavit at tab 16 correspondence from Motherisk Laboratory commenting on the hair follicle test results in view of the list of medication prescribed to Ms. L.G. and provided to Motherisk Laboratory for review, which drug history extended from 1 October 2009 to and including 8 December 2010.

The conclusion reached by the laboratory was that there was a possibility that, with respect to the codeine readings in Ms. L.G.’s hair follicle test, a prescription filled on 21 October 2009 could have contributed to a positive codeine reading, provided that medication was consumed between mid-May and early December 2010. That opinion went on to note that, despite the presence of oxycodone in the hair follicle testing sample, there was no prescription for oxycodone given to Ms. L.G.. [ 16 ] Another development has recently occurred in that the two other children who had been returned to Ms.

L.G.’s care on 21 September 2010 were subsequently apprehended as a result of hair follicle testing conducted on each of these children. This testing tested positive for cocaine, benzoylecgonine, opioids and codeine. Ms. L.G. has offered no explanation for these positive tests other than to indicate that the children may have been exposed to other members of her family, namely her son who at the time may have been consuming these substances. [ 17 ] When the court considers a variation of a temporary order under subsections 51(6) and (7), the court must embark upon a two-stage process.

First, the court must determine whether there has been a material change in circumstances. The moving party, in this case Ms. L.G., must demonstrate that there has been such a change. [ 18 ] Ms. L.G. takes the position that the dismissal of all criminal charges does constitute a material change in circumstances. The society takes the position that, notwithstanding the outcome of the criminal trial, it stands by the allegations made by the third party and the child and, in fact, in view of the drug testing results alluded to above, that Ms.

L.G. may very well in fact have engaged in the alleged behaviour while under the influence of those substances. [ 19 ] I do not find it necessary to address the first prong of this two-part test under subsection 51(6).

I say so because the second prong of the test under subsection 51(6) provides that, if the court finds that there has been a material change in circumstances, the court must proceed to the second stage, which involves the consideration of whether 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 a supervision order. As well, the court is entitled to conduct a broad and discretionary assessment of the best interests of the child.

[ 20 ] Even if I were to find that there has been a material change in circumstances in view of the outcome of the criminal trial and the allegations of improper disciplining and assault made by the child, the developments with respect to the segmented hair follicle tests and the recent apprehension of the two other children whom this court had previously returned to Ms. L.G. on 21 September 2010, would lead this court to conclude that a return of the child R.K.H.B. to the respondent Ms.

L.G., would create a risk such that the child is likely to suffer harm and, furthermore, in light of these recent developments, there is no court-ordered supervision terms that could be imposed that would address that risk of harm. [ 21 ] Ms. L.G.’s explanation for the hair follicle testing and the results of those tests is, in part, to challenge the very science of that testing. Hair follicle testing occurs with regular frequency in the Province of Ontario and is relied upon by this court and other courts throughout the province.

There is no evidence before this court at this stage of the proceedings that would effectively challenge that science. [ 22 ] The hair follicle test results contradict Ms. L.G.’s affidavit evidence. It may be that she will need to seek treatment as she has deposed in her affidavit at tab 18.

Whether or not she seeks that treatment and the effectiveness of that treatment is an issue to be determined and addressed on another day. [ 23 ] For the reasons set out above, the respondent’s motion at tab 11 and specifically, that prayer for relief seeking a return of the child R.K.H.B. to the care and custody of the respondent, is dismissed. [ 24 ] The motion seeks, in the alternative, specified access to the child in favour of the respondent. [ 25 ] The current access regime is for three hours per week. That access is supervised by the society both in the society offices and in the community.

No access has occurred in Ms. L.G.’s residence. In addition, Ms. L.G. is to have telephone access to the child R.K.H.B. with such access to be arranged between Ms. L.G. and her stepson, Mr. A.G., with whom the child is currently placed. [ 26 ] The society takes the position that it is unable to facilitate access beyond three hours per week. It is not prepared to supervise access in Ms. L.G.’s residence at this time. [ 27 ] The evidence before the court filed by Mr.

A.G. would seem to suggest that three hours’ access per week is more than enough and that the child R.K.H.B. is a well-adjusted child who enjoys living with him and his spouse. He deposes in his affidavit material that his attempts to facilitate telephone access between R.K.H.B. and her grandmother have been earnest. There are days, he indicates, that R.K.H.B. simply does not wish to call her grandmother.

There are times as well when the grandmother telephones when R.K.H.B. is not available to speak with her. [ 28 ] The court is not prepared to impose an obligation upon the society beyond the three hours per week at this time. Ms. L.G. has issues with which she must deal by her own admission. She fully intends, again by her own admission, to deal with her drug and alcohol dependency issues. That should be her primary focus at this time. Access to the child at three hours per week seems to have been working well.

It is sufficient access in my view to maintain the parent bond that was established prior to apprehension. I am not prepared to order access in Ms. L.G.’s residence at this time. An expansion of access both in terms of hours and in terms of freedom from supervision should be determined by the society in the circumstances of this case as time goes on. [ 29 ] With respect to telephone access, it is evident that, for one reason or another, the child and her grandmother are not having regular telephone access. That access should be regular.

It is difficult to stipulate in a court order the exact time and dates of telephone access. As I understand it from reviewing the material, Ms. L.G. was having access by telephone to R.K.H.B. on an almost daily basis. Ms. L.G. should be careful to avoid pumping the child for information and should limit her conversations to discussing daily activities with the child. It is not appropriate in my view, that those calls be monitored or recorded. Given the child’s age, the calls should last no more than 15 minutes and should occur on an every-other-day basis. Ms. L.G. and her step son, Mr.

A.G., should mutually agree on a time and date for this access to commence. It has already been court ordered that such access be conducted, in any event, and the purpose of this endorsement is to reinforce that requirement. [ 30 ] This file shall now be adjourned to 29 August 2011 at 2:00 p.m. for a settlement conference. Thereafter the file shall return to the court docket on 19 September 2011 at 1:00 p.m. for the fixing of a trial management conference date.