Children’s Aid Society of Algoma v. P.N., 2013 ONCJ 739

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

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

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

c) prohibiting the publication of a report of the hearing or a specified part of the hearing, where the court is of the opinion that . . . 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) or 76(11) (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. ONTARIO COURT OF JUSTICE COURT FILE No.: Sault Ste. Marie 118/13 DATE: 2013-12-20 Citation: Children’s Aid Society of Algoma v. P.N. , 2013 ONCJ 739 BETWEEN: CHILDREN’S AID SOCIETY OF ALGOMA, Applicant, — AND — P.N., N.S. AND HOLLY SYRETTE, Respondents. Before Justice John Kukurin

Heard on December 11, 2013 Reasons for Judgment released on December 20, 2013 Jennifer Mealey ................................................................... counsel for the applicant society Shadrach McCooeye ........................................................... counsel for the respondent P.N. Lynn Tegosh ......................................................................... counsel for the respondent N.S. Holly Syrette ........................................................ band representative for B[…] First Nation KUKURIN J. [ 1 ] This decision is on a motion (at Tab 2) brought by the applicant society in this child protection case seeking an order under section 51(2)(

b) of the Child and Family Services Act (the “ Act ”), which is the statute that governs child protection proceedings. Section 51(2) of the Act requires the court to make some temporary care and custody order each time that a hearing to determine if a child is in need of protection is adjourned. There are four possible temporary care and custody orders that a court can make. The first two under clauses (

a) and (

b) of section 51(2) are not non-removal orders. The third and fourth under clauses (

c) and (

d) of section 51(2) are removal orders. [1] [ 2 ] The Act sets out in section 51(3) [2] , a two-part test for choosing between a removal order and a non-removal order. The onus always falls on the society to satisfy the court that the temporary care and custody order it seeks is the proper order to be made. [ 3 ] In the present case, the society is not asking for a removal order. It is content that the three children in this case remain in the temporary care and custody of their mother, but subject to a supervision order in favour of the society, with a number of terms and conditions.

The father (of the youngest child) supports the society’s position on the temporary care and custody issue. They both want an order under section 51(2)(

b) of the Act . [ 4 ] The mother disagrees. She wishes a temporary care and custody order to be made under clause (

a) of section 51(2). This would place the children in her temporary and custody, but without any society supervision and without terms and conditions. TEST IN SECTION 51(3) [ 5 ] With the consensus that a non-removal order is appropriate comes the corollary that the two-part test in section 51(3) is not met on the evidence in this case. The temptation would be to ignore the test in these circumstances.

However, that would be inadvisable, at least from a judicial point of view. [ 6 ] In this case, the society and the father take the position that the first part of the two-part test has been met, but that the second part of the test has not. The mother’s position is that neither branch of the test has been met. [ 7 ] Does this disparity with respect to section 51(3) test matter? Regardless of which position one adopts, the end result is a non-removal temporary care and custody order which leaves the children with their mother. [ 8 ] In fact, it does matter.

It matters in the making of a decision of whether a section 51(2)(

a) or a section 51(2)(

b) order is to be made, both of which are non-removal orders. It matters even more, in the event that a section 51(2)(

b) order is made, in deciding what are the appropriate terms and conditions to include in such order. [ 9 ] The phrasing of section 51(3) of the Act is important. Although there are two parts to the test, and these are conjunctive, they are not independent of each other. [ 10 ] Failure to meet the first part of the test must logically affect the second part of the test.

Why would a court concern itself with whether a child would be adequately protected by court imposed conditions or by society supervision in a temporary court order if it did not even have reasonable grounds to believe that a child was likely to suffer harm if he or she remained in the care of his or her caregiver? [ 11 ] It follows that deciding if the first part of the test is met is relevant to whether the temporary order made is with or without society supervision and conditions.

If the order made is with society supervision and with conditions, it is even more important to identify the nature of the risk of likely harm in order to determine what are the appropriate conditions to include to address the risk. [ 12 ] In the present case, I am satisfied that the first part of the test is met. The onus on the society in this first branch of the test is not to establish that a risk of likely harm to a child exists if the child remains with his or her caregiver. The onus is less than this.

It is only to persuade the court that reasonable grounds exist to believe that this is so. [ 13 ] Satisfying the court of these reasonable grounds is a task that is facilitated by other provisions, both in the Act , and in the Family Law Rules (the Rules ) that apply to child protection proceedings. [ 14 ] Section 51(7) of the Act [3] permits the court, at the temporary care and custody stage, to admit and to act on evidence that it

considers credible and trustworthy in the circumstances. This is a lowering of the standard for evidence that would normally apply in the balance of the proceeding. [ 15 ] In addition, section 50(1) of the Act [4] permits the court to consider, in any proceeding, and in any part of a proceeding under

Part III, the past conduct of a person, such as the mother in the case, towards any child at any time in the past. In doing so, any report or statement, written or oral, that the court considers relevant is admissible into evidence. [ 16 ] Also, because the claim for a temporary care and custody order is made by motion, Rules 14(18) and 14(19) [5] apply to permit hearsay evidence to be admitted and to be acted upon by the court. [ 17 ] To summarize, it is not difficult to meet the first part of the test.

Section 51(3) does not even mention what kind of harm or what degree of harm, or for that matter, what degree of risk is required for this first part of the test. [ 18 ] There was no challenge by any of the parties to the evidence filed in this temporary care and custody motion by any other party.

The cumulative evidence filed by mother, father and society more than satisfy me that reasonable grounds do exist to support a belief that one or more of these children is likely to suffer harm without some court ordered precautions in place. [ 19 ] In terms of the kind of harm, it is likely physical harm primarily, but it may have emotional harm aspects as well. [ 20 ] The court arrives at reasonable grounds based on evidence before it. There are many pieces of evidence, some dated, some recent, in this case. It is not necessary to deal with each individual bit of evidence in these Reasons.

It is sufficient to summarize the main factual underpinnings for the first part of the test. [ 21 ] Not necessarily in order of any priority, the evidence supporting grounds to believe in likely harm are:

a) use and abuse of alcohol by the mother;

b) use and abuse of alcohol in the home of the children by others;

c) domestic discord, short of violence, involving the mother;

d) violence by the mother towards partners and ex-partners;

e) violence to and by the mother involving non-partners;

f) questionable choices in alternate caregiver arrangements;

g) questionable levels of child supervision. [ 22 ] What ostensibly precipitated this child protection case was an incident at the home of the mother when she and the youngest child were not even in the home. They were staying overnight with the maternal grandmother of the children because the mother was sick. The incident was serious, resulting in police attendance, and criminal charges against adult participants. The older two children were in the home at the time of the incident. [ 23 ] While the mother was not present, and arguably blameless, this incident, by itself, is not the basis of risk of likely harm.

It is one in a number of incidents in which one or more of the children were subjected to circumstances that might reasonably have resulted in some harm to them. In one case, physical injury was suffered by one child. [6] [ 24 ] The mother has responded to some of the factual allegations. Is the court’s belief reasonable in face of her response? I believe it is. The mother has not responded to some allegations at all. Her argument of being blameless in the most recent incident does not negative the historical evidence applicable to the mother, especially relating to use of alcohol.

SUPERVISION UNDER CONDITIONS [ 25 ] Having found that a belief in risk of likely harm is sufficiently grounded on the evidence, the second part of the test in section 51(3) comes into play. It should be stated that just because one, two or all of the parties believe that the child can be adequately protected by an order involving society supervision, and including conditions, this does not make it so. It is from the court that the Act requires a reasonably grounded belief of adequate protection of a child through the order it makes. [ 26 ] This leads to the second main issue in this particular case.

That is, what are the terms and conditions that should be included in the section 51(2)(

b) order in this case. Perhaps an even more basic issue is what are the criteria by which to determine whether a particular condition is or is not appropriate to impose. [ 27 ] Here again, the mother disagrees with the society and with the father. Her argument seems to be that each condition imposed must be necessary, with “necessity” to be gauged in relation to the particular risk of harm the condition is meant to address. [ 28 ] The society, supported by the father, does not subscribe to so restrictive a criterion as necessity. Rather, it suggests that the qualification for a term or condition in a section 51(2)(

b) order is whether it is reasonable (as opposed to necessary), whether it is fair, and whether it relates to what are the protection risks. [ 29 ] There are two statutory provisions in the Act that mention terms and conditions in relation to a section 51(2)(

b) temporary care and custody order. The first is section 51(2)(

b) itself, that provides for placement of the child

“subject to the society supervision”, and “on such reasonable terms and conditions as the court considers appropriate”. The second is section 51(3.2), a relatively recently added subsection of 51 of the Act . [7] This subsection is an expansion of section 51(2) (

b) or (c). It seems to limit the terms and conditions to the child’s care and supervision. It describes individuals who can be ordered to be subject to such terms and conditions. This includes the supervising society (subject to some financially based limitations). [ 30 ] Of note is that any such terms and conditions must be “reasonable”, a term that is sometimes as elastic as spandex. It must also be considered to be appropriate in the view of the court. Finally, whether a particular term or condition is imposed is in the discretion of the court. [ 31 ] How does all of this apply in the present case?

The society’s motion for temporary care and custody to the mother asks for 20 conditions letter (

a) to (t). Nineteen start with the words “The mother shall” or “The mother shall not”. The twentieth, for some unfathomable grammatical reason, starts with “The mother will”. There is no request for any term or condition to be imposed on any other party or on the society. [ 32 ] The mother does not object to many of these 20 conditions being imposed on her. She does object to some, however. What does the court apply to decide whether these maternally objectionable terms and conditions should or should not be included? [ 33 ] There is a fair amount of case law that addresses this very question.

This is not surprising as supervision orders and terms and conditions have been around for a long time. The case law is not consistent and continues to evolve. [8] At one end of the continuum of judicial opinion are jurists such as Nevins J. who expressed: “Nor should temporary supervision orders be used to address a limitless number of possible concerns over a child’s care.” [9] Nevins J. felt that the determination of whether a term or condition was “reasonable” was tied to the protection concern in the case at the time.

He stated in R.(B.) : “…provided that any terms or conditions of supervision are to be imposed with extreme caution and are to be directed solely to the facts and circumstances established that gave rise to the belief that the child may need protection.

At this stage of the proceedings the court should exercise its power of intervention carefully and with serious consideration, and great caution must be taken to ensure that any regimen of supervision established at this juncture by way of terms and conditions is limited to alleviation of the relevant and material causes for concern.” [ 34 ] In the discussion in that case, Nevins J. was concerned with the criterion of “reasonableness” of the proposed term, and whether the test of “reasonableness” was different before or after a child was found to be in need of protection. “There is, therefore, a corollary issue that should be addressed as well in this case, and that is whether or not the test of “reasonableness” of any terms or conditions imposed on a supervision order is different, depending on whether or not the child has been found to be in need of protection.” He concluded that “the best interests criteria” are to be considered “after a finding” to determine the terms and conditions that may be imposed as part of a supervision order.

Quite unequivocally he stated: “I reject the argument that the best interests test is to be applied in determining the conditions and terms that may attach to a temporary supervision order.” [10] [ 35 ] A somewhat contrary view may have been taken by Caputo J. in Children’s Aid Society of Algoma v M.C. and M.C. (Unreported Dec 21, 2006 – Sault Ste. Marie Registry 662/06-Ont.

S.C.J.) an appellate decision which struck out a condition imposed in a temporary care and custody (interim supervision) order and substituted another on the basis, inter alia, of the “paramount purpose of the Child and Family Services Act , which is to promote the best interests, protection and wellbeing of children.” [ 36 ] A fundamental problem is this area arises from an absence of any definition of what is meant by “subject to the society’s supervision” in section 51(2)(b). There are no parameters expressed that give any description of what a society’s supervision includes.

Of course, the kind and extent of a society’s supervision varies from case to case depending on the circumstances and on the protection concern involved. [ 37 ] A secondary and somewhat related problem arises from the fact that the society, at the temporary care and custody stage of the proceeding, is generally very involved in its investigative function. From the society’s point of view, the broader, the more far reaching and the more intrusive the terms attached to its interim supervision order, the greater its facility in discharging its investigative role.

The respondent parents, on the other hand, typically view such terms as interferences in their personal lives and intrusions in their families. They prefer minimal conditions or none at all. [ 38 ] Whether a terms is “appropriate” from a judicial point of view is too subjective to be of much value as a guideline. Ultimately what the court considers appropriate is what it finds to be reasonable.

Accordingly, how the court interprets “reasonableness” is critical to how it view a proposed term or condition. [ 39 ] While I agree that interim supervision orders, and particularly the terms and conditions attached to them, should not be used to address a limitless number of possible concerns over a parent’s care of a child. I differ with the extent of the limits and restrictions that Nevins J. suggest are appropriate in setting such conditions.

My view is that terms and conditions may be ordered that facilitate the supervisory role of the society even though they may only marginally relate to the facts and circumstances established in the evidence that gave rise to the belief that the child or children may need protection. This, of course, is tempered by the level of intrusiveness

involved in any such condition. [ 40 ] It should be remembered that if an interim supervision order is made at all, it can only be made if the court has been satisfied that there are reasonable grounds to believe that there is a risk that a child is likely to suffer harm. If this threshold has not been met, then the appropriate interim order in the case should be made under section 51(2)(

a) which involves no society supervision and no terms or conditions. If this threshold has been met, then the child’s custodian should expect some degree of intrusion in his or her family pending a final hearing in this case. [ 41 ] In the present case, the society has been given a supervisory role. Supervision includes elements of oversight, surveillance, direction, guidance, management, superintendence and control. Who, or what, is subject to this supervision is unfortunately not clear in the statute. Grammatically, it is the child or children. [11] Logically, however, it must necessarily include the person(

s) who is/are entrusted with temporary care and custody of the child, and even those who exercise access to the child. [ 42 ] Are terms and conditions necessary to be attached to every supervision order made under section 51(2)(b)? The suggestion from the wording of this subsection is that conditions go hand in hand with the supervisory role created. However, that is only an inference; it is not an explicit requirement. In fact, it is the court that decides what conditions, if any, are to be imposed. There may be cases where conditions are clearly necessary for the interim protection of the child(ren).

Typical examples are prohibitions against identified sexual predators residing in the same home as the child, prohibitions against illegal drugs being consumed in the home, or positive obligations to faithfully administer a child’s prescribed medication. Some conditions are not absolutely necessary to protect the child from the identified risk of harm in the case, but are certainly desirable for the purpose of enabling the society to carry out its supervisory duties in the case. I would certainly include necessary conditions.

I may (or may not) include conditions that are desirable but not absolutely necessary. [ 43 ] Ultimately, it is up to the parties to persuade the court, with evidence, of the appropriateness of including or excluding a particular term or condition. The onus is to show it is reasonable or unreasonable having regard to the risk(

s) of harm in the case. The statute does not have a list of statutory conditions, nor should the court start with the premise that any particular condition should automatically be imposed. On the contrary, each condition sought should be shown to be a reasonable one and relate to the child’s supervision. In the practical world, it is almost always the society that is seeking to have some conditions imposed so the primary onus falls on its shoulder. [ 44 ] The objections of the mother are not many.

She objects to the society having private visits with the children at school, and she wants advance notice from the society of any such visits. I see this as an interference with the investigatory mandate of the society and would not accede to the mother’s request in absence of very compelling evidence that this condition is inappropriate and/or unreasonable. She has not provided such evidence. [ 45 ] The mother has counsel.

I consider her request to make her obligation to sign releases or consents in favour of the society conditional on prior review with her counsel as a reasonable request. [ 46 ] An absolute abstention from alcohol is unreasonable for the mother in this case on the evidence. It would be sufficient that she not be in a caregiving role to her children during and within 24 hours prior to having consumed alcohol. A reasonable addition is that there be no drinking of any alcohol by anyone, and no containers of alcohol, either full or empty or partially full, within the home of the children.

The mother, and her friends, can drink elsewhere than in the home. [ 47 ] The mother should submit to reasonable demands of the society for alcohol screens, but not for drug screens, at least not on the present evidence. [ 48 ] Prior approval by the society of an alternate caregiver or babysitter is unnecessary and too intrusive, since there is a term requiring the mother to provide appropriate supervision at all times. [ 49 ] The evidence does not support a condition requiring the mother to attend for a mental health assessment at this stage.

There are specific provisions in the Act [12] for ordering assessments, and some regulatory prerequisites as well. I see this proposed condition (

m) as a circumvention of the statutorily prescribed pathway for obtaining an assessment of the mother. The society can make a motion if it wishes this. Otherwise, it can argue that this is an appropriate condition for a final order under clause 1 of section 57(1). This is a very intrusive term or condition. [ 50 ] I would limit condition (

s) to the mother’s participation in a drug/alcohol assessment with CADAP (Community Alcohol and Drug Assessment Program), but not include her following any recommendations (which are presently are unknown). This assessment is self-reporting; it is not onerous; it is not all that intrusive. To require the mother to attend a residential treatment program, however, is extremely intrusive for a temporary order (even with the uncertainty that this may be recommended). [ 51 ] Aside from the foregoing, I would impose the other terms and conditions as proposed by the society.

Some may be unnecessary, but still reasonable to impose at this stage in the case. Courts should not have to micromanage each term or condition proposed. For those to which no objection is made, there should be a much wider judicial inclination to include these in the order made. These terms and conditions are in a temporary order. It is expected that they will be superseded or terminated by a final order made later in the case, on much better judicial appreciation of the overall evidence. Released: December 20, 2013 ____________________________________

Justice John Kukurin, Ontario Court of Justice [1] S. 51(2) 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. [4] S. 50(1) Despite anything in the Evidence Act , in any proceeding under this Part, (

a) the court may consider the past conduct of a person toward any child if that person is caring for or has access to or may care for or have access to a child who is the subject of the proceeding; and (

b) any oral or written statement or report that the court considers relevant to the proceeding, including a transcript, exhibit or finding or the reasons for a decision in an earlier civil or criminal proceeding, is admissible into evidence. [5] AFFIDAVIT BASED ON PERSONAL KNOWLEDGE 14

(18) An affidavit for use on a motion shall, as much as possible, contain only information within the personal knowledge of the person signing the affidavit. AFFIDAVIT BASED ON OTHER INFORMATION 14

(19) The affidavit may also contain information that the person learned from someone else, but only if, (

a) the source of the information is identified by name and the affidavit states that the person signing it believes the information is true; and (

b) in addition, if the motion is a contempt motion under rule 31, the information is not likely to be disputed. [7] S. 51(3.2) A temporary order for care and custody of a child under clause (2) (

b) or (

c) may impose, (

a) reasonable terms and conditions relating to the child’s care and supervision; (

b) reasonable terms and conditions on the child’s parent, the person who will have care and custody of the child under the order, the child and any other person, other than a foster parent, who is putting forward a plan or who would participate in a plan for care and custody of or access to the child; and (

c) reasonable terms and conditions on the society that will supervise the placement, but shall not require the society to provide financial assistance or to purchase any goods or services. [12] S. 54(1) In the course of a proceeding under this Part, the court may order that one or more of the following persons undergo an assessment within a specified time by a person appointed in accordance with subsections (1.1) and (1.2): 1. The child. 2. A parent of the child. 3. Any other person, other than a foster parent, who is putting forward or would participate in a plan for the care and custody of or access to the child.