Nogdawindamin Family and Community Services v. A.W., 2018 ONCJ 833

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

Part V of the Child, Youth and Family Services Act, 2017 , (being

Schedule 1 to the Supporting Children, Youth and Families Act, 2017 , S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows: 87.—

(7) Order excluding media representatives or prohibiting publication. — Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, 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, the court may make an order, . . . (

c) prohibiting the publication of a report of the hearing or a specified part of the hearing.

(8) Prohibition re 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) Prohibition re identifying person charged .— 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. . . . 142.—

(3) Offences re publication. — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(

c) or subsection 87(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 CITATION: Nogdawindamin Family and Community Services v. A.W., 2018 ONCJ 833 DATE: 2018·08·20 COURT FILE No.: Sault Ste. Marie File No 141/18 BETWEEN: NOGDAWINDAMIN FAMILY AND COMMUNITY SERVICES, Applicant, — AND — A.W. M.P. J.S. SANDRA DEWING (BATCHEWANA BAND REPRESENTATIVE) Respondents. Before Justice John Kukurin Heard on August 15, 2018

Reasons for Judgment released on August 20, 2018 Murdoch Carter, agent for Rejean Parise ...................... counsel for the applicant society Eric McCooeye ...................................................... counsel for the respondent mother A.W. Christopher Fitzgerald .......................................... counsel for the respondent father, M.P. Sandra Dewing ..........................................

Band Representative, Batchewana First Nation J.S. .................................................................................................................. on his own behalf KUKURIN J.: [ 1 ] This is a decision on a motion (at Tab 2) for temporary care and custody, and for interim parental access, made on a ‘without prejudice’ basis. [ 2 ] The applicant society has brought a child protection application naming four respondents. There are four children who are the subjects of this application. [ 3 ] In reality, however, there are four separate applications, one for each child.

Three share common parties and common issues. For convenience, I deal with these as Child Protection Application No. 1. The parties are the mother, A.W., the biofather of these three children, M.P., and the society. The children are G., P. and C. [ 4 ] Child Protection Application No. 2 is for one child only, B., age nine months.

The parties in this second application are the mother, A.W., the biofather of B., J.S., the Band Representative from Batchewana band, Sandra Dewing, and the society. [ 5 ] I treat these as two separate application because they are distinct, one form the other, and that distinction is important, not only to the facts in evidence in this case, but also to the court’s treatment. For example, application No. 1 has no band representative. Both parents are non aboriginal and so are their three boys.

By contrast, the father of B. is a card carrying member of Bathewana First Nation and she is a First Nation child so a band representative is a necessary party in application No. 2. Moreover, all of the Child, Youth and Family Services Act ( CYFSA ) provisions that apply to a First Nation, Inuit or Metis child apply to B., but do not apply to G., P. or C. Re: G. (9), P. (6) and C. (4) [ 6 ] The society seeks temporary care and custody placement of these three boys with their father, M.P.

The father and their mother have a domestic order under the Children’s Law Reform Act dated Dec 20, 2016 from this court that gives them joint custody and equal shared parenting time on a week about basis with exchanges on Friday afternoons. [ 7 ] The society’s motion wants the father to have sole temporary care and custody and the mother to have access, with such access to be supervised in the discretion of the society. The society does not say what the maternal access will actually be, in terms of where, when and how often it will take place.

It does not exclude a week about regime, but neither does it confirm that it will take place. My view is that week about access is unlikely if the society makes these access decisions. It is not reasonable that it will supervise the mother overnights if she has these children on a week about access visit. In short, the society seeks a temporary care and custody order that overrides the mother’s joint shared custody that she enjoys on alternating weeks. It wishes her time with these children to be supervised in its discretion and does not indicate by whom.

If it is to be society personnel, her access is not likely to be generous as supervisory personnel from this society are not plentiful. It also wishes the court to impose a supervision order on the placement of the children with their father and subject to several conditions. [ 8 ] To be successful, the society has to meet the test in s.94(4) CYFSA . This requires it to satisfy the court of two things: firstly , that reasonable grounds exist to believe that there is a risk that each of these three children are likely to suffer harm [if they remain on a week about parenting time

schedule with their mother], and secondly , that each of these children cannot be adequately protected by an order of the court made under clauses (

a) or (

b) of s.94(2) CYFSA [ ie that maintains the week about joint custodial regime but subject to a society supervision order and court imposed conditions] [ 9 ] The main source of risk of harm to these three children is from the father of B., J.S. The mother is a secondary source of risk of harm. [ 10 ] I am satisfied that the reasonable grounds required by the first branch of the test do exist based on the present evidence. This belief is based on the following factual allegations: (

a) the history of domestic discord, between the mother and J.S. in their often dysfunctional relationship which includes arguing, yelling, swearing, shouting and fighting, often in the presence of the children; (

b) the history of domestic violence between J.S. and the mother, which includes physical assaults and property damage, conduct which has placed both her and the children in the path of physical harm, and has on occasion led to police involvement including criminal charges against him; (

c) the history of chronic and regular consumption of excessive alcohol by J.S., which the evidence shows the mother herself

admitted was not only true but that such drinking exacerbated his argumentative and violent behaviours, often with the children present in the home or elsewhere; (

d) the history of the mother and J.S. failing to abide by directions from and agreements made with the society with the intent of keeping the children safe while in the mother’s care and preventing contact between them and J.S.; (

e) the failure of the mother to report the presence of J.S. in her home to the police, or to the society, and allowing him to spend time including overnights in her home when the children were in her care. [ 11 ] The second branch of the test is more problematic than the first. Can the court fashion an order to adequately protect these boys and still maintain the mother’s week about joint custodial regime in place for these three boys? Placing them with their biofather, M.P., full time is an option but not the only option, and not necessarily the option that the court must consider in the scheme of the provisions of the CYFSA . For these three children, and their mother (

a) the full time placement with their biofather flies in the face of a joint custodial scheme that has been in place for over 1 ½ years, which was made on consent of both of them, and which was approved by the court to be in the best interests of the children. Joint custody should not be changed to sole custody so readily and on only one sided (society) evidence; (

b) the full time placement with their biofather is a draconian response to circumstances that do not necessarily call for such placement. The big problem here is J.S., who technically has no rights to even see these three children, and his presence in the life of the mother when she has these three boys with her. The court should first address whether it can fashion some order that will prevent the further contact of J.S. with these boys short of depriving the mother of her week about custody; (

c) the full time placement with their biofather is not the least disruptive course of action for these boys mandated by the Act [see s.1(2) paragraph 2], and does not provide services that respect the continuity of care needed by children [see s.1(2) paragraph 3 (i)] (

d) the full time placement with their biofather is a remedy sought on only evidence from one party – the society. Realistically, the court cannot expect the mother to respond on one day’s notice time to all or any of the society’s allegations.

At this early stage of the motion, the court should seek to maintain as much as possible [subject to the overriding safety of the children] the status quo that existed prior to society intervention, particularly when there is a domestic court order in place already, and even more so when the court is making an order that is ‘without prejudice’. [ 12 ] The society’s efforts to shield these children from J.S. by Wellness Agreements with the mother have proven ineffectual. However.

A well fashioned court order has more teeth than an agreement and can be enforced not only with more stringent conditions or prohibitions, including removing the mother’s joint custodial time with the children, but also with criminal sanctions. [ 13 ] From a child protection point of view, the mother is less of a concern for these three boys. She is more the victim of domestic violence than the perpetrator.

While the evidence establishes that she contributed to and participated in the yelling, screaming, arguing, and obscenity and swearing with J.S., and failed to keep him away from these children, a suitably crafted court order can, I believe, prevent such repetitions in the future, at least during the currency of a without prejudice order. [ 14 ] There is another factor that is involved here. That is a procedural and evidentiary one. This motion for temporary care and custody is brought on short notice. In fact, there is no proof of service of this motion on the mother filed in the court record.

The affidavit in support of the motion is sworn August 10, 2018. The exhibits attached to this affidavit are sworn August 13, 2018. Clearly, the notice of motion could not have been served on the mother earlier than August 13, 2018. It was returnable in court August 15, 2018. I was also served on the father on August 13, 2018. This effectively gave the parents one day to respond. This is well short of the time for service of a motion required under the Family Law Rules. The inevitable result is that the mother and father did not respond. The court has only the evidence of the society.

And that evidence is to a great extent, hearsay or double hearsay in nature, and much of it admitted by the society to be not verified by its own investigations. [ 15 ] Accordingly, at this point, the court should be very cautious in making any drastic changes to a status quo unless they are necessary to protect a child. And on only evidence from one side in these circumstances, what the court should order should be on a ‘without prejudice’ basis. [ 16 ] These three children have been on an alternating week

schedule with their mother and their father for well over 1 ½ years. This should not be interrupted unless protection risks for the children dictate otherwise. [ 17 ] The father’s custodial care, based on the evidence, appears to be faultless. It is difficult to justify imposing a supervision order on his joint care and shared custody. The children will be placed in his temporary care and custody for alternating weeks starting and ending on Fridays at 4:45 pm. This will be an order pursuant to s.94(2)(

a) CYFSA and will not be subject to any society supervision order. The father, in any event, appears to be fully co-operating with the society. [ 18 ] The mother’s joint custodial care has not been as exemplary as has the father’s. A society supervision order is required to adequately protect the children when they are in her care. The supervision order conditions over the mother are not specified by the society as it was only asking for the mother to have access to them.

The maternal access conditions sought by the society appear to be equally suitable as conditions of a maternal temporary care and custody order, at least to protect the children until a formal temporary care and custody hearing determines otherwise. These conditions are in the Appendix in the society’s child protection application relating to the mother, A.W., in paragraphs (

a) to (g). [ 19 ] I would, however, add one further condition, namely (

h) that the mother shall not permit the children G., P. or C., to have any contact, direct or indirect, with J.S., and shall not permit J.S. to be in her home during any time that any of such children are in her care.

[ 20 ] J.S. is not the biofather of these children. He is not their stepfather, either by marriage or informally. He has no right of access to them and never did. Any contact he had with them was only that which was permitted to him by their mother during her exercise of shared joint custody, or over her objections. On the present evidence, the contact that he did have with them was not pleasant and presented a risk of harm to them. He is not a party in the proceeding involving these three boys.

He is not their statutory parent. [ 21 ] Accordingly, and to buttress the additional condition of the interim without prejudice supervision order I make with respect to the mother’s care and custody, I am inclined to make a separate order that binds not the mother, but rather J.S.. This is an order made pursuant to s.137(1) CYFSA (

a) p rohibiting J.S. from any contact with the said children, G., P. and C. W.-P., or any of them, or being any closer to them than fifty metres of wherever they may be; (

b) prohibiting J.S. from and any face to face contact with the mother, A.W., during such time as she has the care of these children, G., P. and C. W.-P., or any of them, during her joint custodial parenting time with these children; and (

c) that these orders will continue for so long as there is a s.94(2) temporary care and custody order in force with respect to these children, or until they are varied, extended or terminated by a court of competent jurisdiction. Service of a notice of the proceeding on the person to be so restrained is a pre-requisite for these orders. However, I assume that J.S. was served with the Application as he is present in court. I assume that proof of such service will follow. Also, these orders are not made without prejudice. Re B. (9 months) [ 22 ] The child protection application (No.2) with respect to the child B.

W.-S., age nine months, has as respondents, the mother, A.W., the biofather, J.S., and the Band Representative from Batchewana First Nation, Sandra Dewing. [ 23 ] The society in its temporary care and custody motion at Tab 2, seeks an order placing B. in the joint temporary care and custody of the mother, A.W., and the child’s maternal grandmother, T.M., with the maternal grandmother to have primary and total authority over all matters involving care and control of B.

It also wishes an interim supervision over this joint temporary care and custody placement with a number of conditions that bind the mother, and several other conditions that apply to the maternal grandmother. There is no consent by T.M. to any of this. She is not a party in the child protection case involving B.

She merely signed the safety plan, dated August 3, 2018, that the society put into effect ten days before this proceeding was started. [ 24 ] On the assumption that T.M. is consenting (as consent is a pre-requisite to placement with her), there is some inconsistency and incongruity with this joint placement concept from a statutory point of view. The mother, A., was the person who had exclusive charge of the child B. prior to the intervention by the society. Placing the child with her maternal grandmother, even on a joint temporary care and custody basis, is placing the child with “kin”.

A “kin” placement is made under s.94(2)(

c) CYFSA . The court is prohibited from making a “kin” placement unless both prongs of the two part test in s.92(4) CYFSA for temporary care and custody have been met. This test is described in paragraph [8] above. [ 25 ] However, if the two part test in s.92(4) is met by the society, then the court cannot place the child with her mother, even as a joint temporary caregiver and custodian.

To do so would be to make an order under s.94(2)(b) [or (a)]. [ 26 ] In short, the joint temporary care and custody placement that the society seeks for B. cannot be reconciled on a statutory basis. [ 27 ] Apart from this statutory difficulty, there is also the question of whether this joint mother-maternal grandmother placement makes any sense from a practical point of view in the factual circumstances of the evidence that is before the court to date. The mother and maternal grandmother do not reside together, and there is no evidence that they intend to do so.

The society’s conditions do not deal with where, or with whom, B. will reside at any given time, and whether the child’s residence can be changed unilaterally by the mother and grandmother without the knowledge or consent of the society. Giving the maternal grandmother full and primary authority is tantamount to giving her sole temporary care and custody. Put another way, what does the mother retain as a custodial parent if her mother has final say over B.? [ 28 ] The family dynamics involving B. are not well documented in the evidence to date. B. is only nine months of age. Is she being breast fed?

What contact is envisaged between B. and her maternal half sibling brothers? Or between her and her paternal half siblings? These are questions that the court should be concerned about in a child focused inquiry. There really is no plan put forward by the society with respect to B. other than joint care, with granny to have final say. [ 29 ] The biggest concern for B. is her biofather, J.S. As her biological father, he does have entitlement to visit with B.

However, his drinking, involvement in domestic strife and violence, and his failure to follow directions and commitments, combined with B.’s vulnerability and total dependence on adults, present a risk of potential harm to her. He is not prohibited from contact with the mother, nor is she prohibited from contact with him, when she does not have her three sons in her care. Typically, his contacts with the mother

have not turned out so well for her. This is exacerbated by her continuing in a relationship with him, including going to his home at times, riding in his vehicle with him, and allegedly permitting him to spend overnights at her home. The mother’s contributions to the dysfunctional relationship with him cannot be discounted.

Would a court order adequately protect B. in all of these circumstances? [ 30 ] There is also evidence that the father J.S., has surreptitiously accessed the mother at her home through a fence in her back yard, and has spent some time there, even overnight, despite that he was not supposed to be there. While this evidence comes from the children by way of hearsay, the court is entitled to admit it and act on it at this stage, if it considers it credible and trustworthy. Perhaps it will cease to be credible and trustworthy if and when the parents respond to it.

It leads the court to a pejorative view of the father’s conduct and a pessimistic assessment of the mother’s ability or willingness to prevent the father’s presence in her home. [ 31 ] In all of the circumstances, I am of the view that the society has met its onus to satisfy the court that the two part test for temporary care and custody has been met with respect to the child B. I do not believe that a court order can be fashioned, based on the present evidence, that can protect B. adequately if she is placed with her mother, A., in the joint temporary care and custody arrangement sought by the society.

I am also sceptical of whether such an order is possible under s.94(2) CYFSA . This doesn’t preclude some other temporary care and custody order being made once additional evidence is before the court. [ 32 ] For the time being, my temporary care and custody order for B. is “without prejudice” and places B. with her maternal grandmother, subject to the society filing a consent of the grandmother, T.M., to the placement and to the supervision order conditions sought by the society. Failing such consent, the society will have temporary care and custody.

In either eventuality, this raises the issue of parental access. [ 33 ] With respect to the father, J.S., and on a without prejudice basis, I agree that his access to B. should be as sought by the society. That is, access that is reasonable and is supervised by the society or its designate, and subject to the conditions of access applicable to this father, and listed in paragraphs (

a) to (

h) of the Appendix in the child protection application. It is appropriate that the father’s access be supervised having regard to the child’s age and vulnerabilities, and to the father’s propensity for excessive drinking, its effects on him and his questionable judgment.

I not that the band representative from his band did not oppose the temporary paternal access order sought by the society, even on a without prejudice basis. [ 34 ] With respect to the mother’s temporary access, although there is a claim for maternal interim access in the society’s motion at Tab 2, it is not a claim that I am prepared to deal with even on a without prejudice basis. Firstly, it is a motion on grossly inadequate notice to the mother. I am not inclined to deal with it without giving the mother an opportunity to respond to the society’s allegations.

Secondly, the society anticipated a joint temporary care and custody order for B. This is not materializing at this point and the society has said very little if anything about temporary maternal access. Thirdly, the court has very little information from the evidence as to the interactions of the child and the mother as well as other significant persons in the child’s constellation of significant persons. In short, there is not enough information in the evidence to even scratch the surface of the best interests of B., the criterion for any judicial pronouncement on access to a child.

The society’s claim for maternal access is deferred to be heard on the same date as its temporary care and custody claim. [ 35 ] That does not mean that the mother gets no ‘access’ to B. in the meantime. If the society envisaged joint temporary care and custody of B., it surely must have contemplated that the mother and daughter would have spent time together. It also is reasonable to assume that the mother and the maternal grandmother would have worked together to facilitate mother-daughter contact. None of this is foreclosed by the order I am making, or by the maternal access order I am not making.

The court is merely leaving maternal access to the parties to sort out pending a determination on better evidence, if at all, at some time in the future. The mother is free, of course, to bring her own motion for temporary care and custody or interim access if she is dissatisfied with the contact she gets with B. [ 36 ] With respect to the identification of B. under s. 90 (2) CYFSA , I have made this identification as well as that for the children G., P., and C. in my endorsement relating to the orders made by me. Released: August 20, 2018 Signed: “Justice John Kukurin”