“It is always very difficult to deny a parent access to his children, but that access must be for the benefit of the children, and in their best interests. In this case I am satisfied that access is not in their [children's] best interest, in fact it is contrary to their best interest.”  DiMeco v. DiMeco, [1995] O.J. No. 3650 s. 36

CHILD PROTECTION PROCEEDINGS - CAS - ONTARIO

Many parents involved in child protection proceedings in Ontario Family Court face a completely unfamiliar environment with intricate legal procedures. The most important thing a parent can do is to get an Ontario Family Law lawyer to represent them against the Childen's Aid Society (CAS), typically housed by a team of specialist lawyers who prosecute child protection applications on a daily basis. Our firm has the expertise to prepare parents for trial or a hearing, and to defend parents who are facing a child apprehension.

 

Call us today if you feel pressured into signing an agreement where your children would reside in a “place of safety.” Our expertise can make the difference in the ultimate outcome of your child protection proceeding.

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NOTABLE CAS/FACS (FAMILY AND CHILDREN'S SERVICES) CASES - ONTARIO:

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1.) Children’s Aid Society of Sudbury and Manitoulin v PS, 1992 ONCJ 7220

 

Situation: Concerning the children of Mr. RS and Mrs. PS, the children in this matter are SS and MS. The Society first became involved with this family in January of 1991, at that time they wanted to remove the children from their parents and have them placed with their paternal grandparents. This was due to the need for RS and PS to work on their marital issues, as well as addressing their alcohol and drug abuse.

 

Facts: This application was brought forth on the 24th of January 1991. Due to problems, the application was altered on February 28, 1991 to have the children placed with their mother for a period of six- months, supervised. In compliance with reconciliation between the parents, the matter was returned to court in June of that same year so that the children may be returned to both parents.

 

Issue(s): However, when reconciliation failed, the Children's Aid Society sought to have the children placed once again with their mother, alone. In September of 1991, following an application by RS, he was granted supervised access with the children at Society offices on an interim basis. In regard to their short-lived reconciliation that would have seen the children returned to the parents, it deteriorated following an incident where RS threatened PS with a knife. Subsequently she fled the home and injured herself in the process. Thus, on August 23, 1991, the Society sought to have the children placed with the mother alone for six months.

 

During the hearing, evidence came out from two female witnesses, SC and SL, that RS had had an exterior romantic relationship within the summer of 1991. The evidence consisted of information that RS had used cocaine five to six times, as well as indulging in frequent drinking. In lieu of this, SL confirmed that she had in fact perjured herself in earlier testimony on behalf of RS. She stated that he had threatened to call the Society and have her children taken away, if she didn’t testify otherwise. Her revised testimony being that RS was an excessive drinker. After attacking the credibility of these witnesses, RS called a counselor from Pinegate Addiction Centre to his defence. The counselor, Richard Audette, explained how RS had completed a 21-day alcohol program and had been free of cocaine use at least up until the trial. Society workers on the other hand were not convinced and believed RS relatively unchanged. This followed expert witness on behalf of PS, from a Ms. Bowes-Chezzi. She relayed that PS held many symptoms common with battered wife syndrome and spousal abuse and would need much more counseling.

 

Conclusion: Following the hearing, the children were placed with PS, provided she attend counseling. And the visits with RS were subsequently diminished to once every two weeks under general supervision for six months. This lumped in with conditions that RS not use alcohol or other drugs and attend counseling.

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2.) Children’s Aid Society of the District of Sudbury and Manitoulin v CB, 2003 ONSC 2043

 

Situation: A motion by the Society to have a child remain in their care, following an appeal that had previously granted custody of the child to the mother.

 

Facts: The mother had regular access with the child following its apprehension by the Children's Aid Society at birth. The move to remove the child from the care of the mother was based largely on her past history. The mother had been heavily involved with drugs and alcohol abuse, was diagnosed with attention deficit disorder and previously lived on the streets. Furthermore, the mother had previously given up her first child as a Crown Ward in 2002.

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Issue(s): It was found that in 2003, the mother had ceased her drug and alcohol abuse, had her own living accommodations, had ended an abusive relationship and had been attending pre-natal classes as well as counseling, in regard to the forthcoming child. The Society, however, held that the initial decision by the Judge that the mother was fit, and the child would be safe, was poorly conceived. Thus, the Society submitted their motion that the Judge erred in this case. The Society alleged that the Judge had failed to apply the relevant legal test at the hearing, lacked consideration for the physical well-being of the child and simply that the child should not be placed with the mother.

 

Law/Analysis: The Society’s appeal grounds were found to not establish a case in its favour. As well, the Judge applied all necessary tests and law correctly. In addition, the supervision clauses attached to the Order would mitigate vast amounts of harm. As well, the mother had changed drastically from her original situation. It was found during the s. 51 hearing that the mother wanted to parent the Child, was breastfeeding, and had not missed any access visits. The mother was in counseling and had her home clean and in order to accommodate the Child. In light of these changes and conditions, it was determined that fostering a bond with the mother was in the best interests of the Child, and that no significant risks were present that outweighed or presented any concerns regarding the overall safety of the Child. It was deemed that the mother and child should be spending more time together to further foster their relationship and bond. This process should not be delayed any further and should not be discouraged by the Society.

 

Conclusion: This, all-in light of the fact that the Society’s initial Order involved a three-month wardship, to be completed, provided the mother showed substantial progress and was emotionally and mentally stable. The progress undergone by the mother met these criteria. As well, the supervision clauses resulted in adequate risk management, deemed by the initial trial Judge. Thus, the Society motion was dismissed.

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3.) Children’s Aid Society for the Districts of Sudbury and Manitoulin v KT, 1995 ONCJ 10077

 

Situation: This case concerns a status review application by the Children’s Aid Society of a child, TNT. The CAS were requesting Crown Ward status for TNT, born May 10, 1993. Primarily, however, the Society sought to have the child placed permanently with the maternal grandparents.

 

Facts: The mother, KT, was an admitted drug addict, with questionable parenting abilities. Thus, the Society became acquainted with the child quickly following their birth. Precisely a few months following the child’s birth, the Society apprehended the child and subsequently obtained a Protection Order. Following this incident, there were several following occurrences of the child being released and re-apprehended by the Society. These recurrences were largely due to the mothers’ frequent relapses and inability to follow treatment. Eventually, the Society placed the child in the care of the maternal grandparents. KT would continue on with treatment with the intention that she would eventually obtain custody of her child, TNT.

 

There were some positive alterations by the end of 1994. The father, a drug dealer and user, had recently begun to show interest in the Child. The father subsequently upgraded his education and was taking advantage of access visits. The mother, KT, also recently graduated from a successful treatment plan. It was at this point that the Society aimed and sought to end their involvement. This included having the child permanently placed with the maternal grandparents.

 

It was deemed that the Society ending involvement with the child would be premature. This, in light of the father’s only relatively recent interest in his son, as well as the mother not being completely free of the substance abuse issues, as she had relapsed most recently in December of 1994. Not only that, but the mother was once again pregnant. This factored into the consideration of her being able to reasonably care for TNT, seeing the stress that the prospective twins would bring. The parents themselves also needed to continue to stay drug-free and to prove that they could continue to do so. It was also found that despite the grandparents doing a relatively good job with the child, TNT, that they lacked the necessary objective oversight, and thus needed to have the Society continue as a mode of supervision.

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Conclusion: It was thus deemed to be the least restrictive option and to be in the best interests of the child to have him remain with the grandparents and continue under supervision of the Society. The overarching decision would be to have the Society maintain supervisors for another six months, while the child remained with the grandparents. The child was still deemed to be in need of protection for the time being. This not being a decision stating that KT may not have recovered in the time frame; however, that the circumstances currently pointed to their still needing to be a vast amount of work undertaken by both parents.

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4.) Children’s Aid Society of the Districts of Sudbury and Manitoulin v TS, 2009 ONCJ 70

 

Situation: Crown wardship with no access is being requested for these two children.

 

Facts: At the outset of the case, the two children, now ages 4 and 2, had been in Society care for two years and three months. The youngest child in particular had been in Society care since birth, on April 4, 2008. The children were apprehended in 2006 following several supervision orders since 2005. It was also made clear that the major risk factor at hand was the threat of domestic violence. The mother, having dealt with several of the parenting deficit concerns and substance abuse issues. The Society made it clear that if the father was no longer a part of the relationship, and if that could be quantified, then the children would be returned to the mother’s care.

 

Issue(s): There is a long history of assaults involving the mother and father between January 2005 and December of 2007. This is in conjunction with the father’s probation officer witnessing an interaction between the father and mother at a bus stop. This interaction constituted a breach on a No Contact Order. The officer was also strongly of the opinion that there were likely several occurrences of these breaches that they were likely unaware of. Secondary to this was an incident in June of 2008, where the mother missed an access visit and failed to inform. When the Society worker eventually met with the mother, and due to a proximity concern of the location of the father, it was likely that the mother and father had met in the window that the access visit was to take place. All of this coincided with a black eye the mother was witnessed to have. There were also breaches involving the mother meeting the father for alcoholic’s anonymous meetings.

 

At the current point in time, the mother promised to keep the children in terms with the Society Order and to abstain from all contact with the father. The concern noted by the Judge would be if it was reasonable to assume the mother would abide by these conditions. The previous statements by the mother, along with her own sentiments that she desires reconciliation with the father are directly contradictory with these statements. It was decided it would be likely, that if the father presents himself, especially in the circumstances that he is sober, that the mother would likely show complacency. She has also been noted to lie to the Society about interactions with the father, which would present further problems.

 

It was deemed that the mother would be in need of therapy and counseling, potentially a stronger form than initially prescribed. There was a complexity and depth to the trauma of the mother that was further discovered in terms of PTSD and intergeneration impacts, this along with known instances of sexual abuse, it would appear the mother was in dire need of further counselling.

 

Conclusion: Thus, the Society stated they did not have the necessary resources to monitor such a high-risk situation. Despite the mother undergoing therapy and further counseling,there was no indication that any implementations had been made in her life and that she intended to keep those changes consistent. The Society stated that they could not mitigate the risk of domestic assault, especially considering the complacency regarding the No Contact Order with the father. A No Access Order was rendered.

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5.) Children’s Aid Society of Toronto v DS, 2009 OJ No 4605

 

Purpose: The motion involved an appeal by the mother in regard to her child. A Judge had previously made a decision that the child was to be made a Crown ward with no access following a summary judgment motion.

 

Facts: Previously, the child had been apprehended by the Society at birth, and had been available for access visits. With the appeal, some new evidence was admitted. In conjunction with this, the mother alleged that the trial Judge erred by allowing conflicting evidence, making no connection to the mother’s drug use and parenting abilities and by focusing on the length of time the child had been in Society care.

 

Conclusion: It was decided in the appeal that the Judge had made no errors regarding their application of law. There was also no dispute involving the mother’s use of cocaine and crack. It was also held that the Judge considered on a balance the possible outcomes, especially given the drug test in relation to the mother. It was also held that the Judge was correct in using the time for the child being in Society care as a deciding factor. This being relevant due to a lack of options remaining for disposition.

 

Despite the mother’s drug tests indicating negative results, the father had up to that point, not handed over any drug tests, so he was viewed a relative unknown. In lieu of this, the new evidence admitted actually showed that the mother had been using drugs past the point she had initially indicated in her submissions. It was also noted that the mother’s own plan of care indicated that her drug use prevented her from properly caring for her children, thus her initial conundrum involving the Judge was not thought favourable. The appeal was dismissed due to the Judge deeming that the trial Judge had correctly considered all options and applied the law correctly.

 

Further to this, it was also noted that the time in Society care is always a relevant metric when considering if the child is to be placed in extended care. The motions Judge was also seen to be sensitive to the parent’s efforts to change and address issues, as opposed to the mother’s assertations. Much of the mother’s points failed to consider that the primary vehicle for considering these outcomes was in fact the best interests of the Child and not the efforts or positions of the parents.

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6.) Children’s Aid Society of Toronto v O.C, 2012 ONCJ 213

 

Purpose: Regarding a motion for summary judgment, seeking Crown wardship with intention resulting in adoption.

 

Facts: The motion concerns two children, EO and AO, and their parents MS, and CO. The parents in this case request that the children be returned to their care, that the motion be dismissed and that there be a full trial. The children were first taken into Society care in March of 2010, and first found to be in need of protection in July of 2010. By July of 2010, the children had been in continuous Society care for 24 months.

 

Issue(s): Both children were diagnosed with having special needs. Along with all these concerns, the parents have consistently been lackadaisical with their commitments regarding access. It is noted that between March 2010-2012, that they attended access sporadically, sometimes even canceling visits outright. Second, there were even recorded moments where the parents expressed a sentiment of wishing to fully terminate access with the children. At other times the parents would express a want to care for the children. The father, MS, was even arrested in January of 2012 and unable to continue access for some time. The mother, CO, also alleged that her life situation had changed, and the children could and should be returned to her care. In opposition to this, the Society presented that all the above indicated a pattern of both parents failing to attend to and care for the children and that they were unable to commit to caring for them. Thus, the motion by the Society was allowed.

 

Legal Analysis: All evidence provided for genuine concern as to the commitments of the parents and if they could adequately parent on a long-term basis. S. 70 of the applicable Act also laid-out that due to the time of care, with the children already being at 24 months, that it precluded a further time of Society wardship.

 

Conclusion: It was determined that for the best interests of the children, they required a stable and permanent environment in which to grow. Returning them to the care of either or both parents would be counter intuitive to this decision. The children would be unsafe and be exposed to a risk greater than necessary to their well-being. Thus, wardship leading to adoption was determined to be the best route for the children. In determining the issue of access, the Judge deduced that parents had not presented any evidence that would indicate that their relationship with the children was at all meaningful or beneficial. In addition, the parents’ multitude of missed visits and general misgivings were also taken into ill context. Thus, resulting in the order for wardship with no access.

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7.) Children’s Aid Society (Ottawa) v A.F

 

Facts: In the case of the Children’s Aid Society (Ottawa) v A.F, the facts are as follows. The father and mother have two biological children M. and C. The father has four children from a previous relationship. Between 2005-2013, there were ten openings relating to the family. Child protection proceedings were commenced in March of 2015 after both parents were charged criminally. Later in July of 2017, Justice Roger found after a 26-day trial that M. and C. were at risk of physical harm and in need of protection. He found that the children could be adequately protected on a 12-month supervision order.

 

The Court also found that separating the mother and the father would reduce the risk of harm. In his reasons, Justice Roger made his decision based on the following findings: there was no finding of physical harm to M. or C., the parents looked after the needs of M. and C., the mother regularly attended pre-natal appointments and she regularly had her children attend the doctors, the home was well-kept and clean, the mother took courses and regularly attended supervised access. During these visits, she was affectionate and appropriate towards the children. The mother had shown a reasonable ability to follow conditions and work cooperatively with the Society. In addition, the Justice also ordered that the mother and children participate in a parenting capacity assessment by the Family Court Clinic of the Royal Ottawa Hospital to occur within the first 5 months.

 

Issue(s): The children were returned to the mother’s care in August of 2017. The Family Court Clinic delivered a report in January of 2018. The assessor found that the assessment of the mother was limited, due to the invalidated psychological testing where she presented herself in an angelic light. Further, the mother showed signs of cluster B personality disorder with dependency traits. The assessor was pessimistic in regards to the mother’s ability to provide for her children over time. These concerns included the father's return from prison. The assessor recommended a further supervision order with clauses requiring the mother to remain in counseling and he also recommended that she engage in a circle of serenity at the children’s hospital.

 

After the release of the report, the child protection worker met with the mother to address the three following concerns: the mother had not had an opportunity to develop a strong relationship with C., as he was brought to a place of safety as an infant, and returned to the mother when he was three years of age. The Society worried about a lack of strong attachment between the mother and C. Furthermore, the mother had not had the opportunity to parent both C. and M. on a full-time basis; she might struggle to manage the children’s behaviour, and M. might act out when frustrated or upset and she might harm others or her brother.

 

Later that year in March of 2018 after a lengthy criminal trial, the father was found guilty of 10 offenses against the other children and was sentenced to 4 years of incarceration. The mother was then found guilty of unlawful confinement, assault and criminal negligence with respect to one child. She received an 18-month conditional sentence followed by two years’ probation. In July of 2018 the Society launched a status review application to request for further supervision. However, at a settlement conference, the Society agreed to terminate its involvement. The condition was the supervision order was to be terminated, but a voluntary services agreement was to be put in place.

 

Later in September of 2018, the mother overdosed on cocaine at the home. Police were dispatched and paramedics also arrived on scene. Upon arrival, the police observed that the children were present on scene and visibly upset. The mother was then transported and the children were left in the care of Mr. R. The mother was discharged the following day.

 

The following day, a Child Protection worker attended the home unannounced to check on the children. The mother advised the worker of the following: the children stayed home that day due to illness and spent the day with the mother and Mr. R. The plan was for the children to sleep over at a neighbour’s home. Additionally, the mother had $20 worth of cocaine delivered to her home. The mother admitted taking the cocaine and feeling sick. She then passed out, remembers paramedics attending to her, but does not have much of a recollection until waking up in the hospital. The mother was tearful and remorseful and she admitted using the cocaine due to stress. The mother told the worker that she would do anything to keep the children in her care. She introduced a neighbour who would do sobriety check-ins three times on September 22, and four times every day after that.

 

In addition, the mother also identified two friends who could do check-ins. The mother also agreed to do drug screens. On September 22, 2018, the mother indicated that she ended her relationship with Mr. R. The children were then taken to safety on September 25, 2018.

 

Legal Analysis: Based on the previous facts, the following decision was made. Council for the children submitted that the children wish to live with their mother and that they should return to their mother’s care because it's in their best interests. The children have stayed consistent in their decision since they were brought into the Society’s care. The CPW (Child Protection Worker) also contested this statement.

 

Conclusion: The Justice in this matter found that the children can be adequately protected by a Supervision Order and be placed in the temporary care and control of the mother with the following conditions:

• the mother shall not reside with Mr. R., the father of M. and C. and shall not have any contact or communication with the father

•  the mother shall immediately notify the Society of any contact or attempt at contact by the father

• the mother is not to allow any communication between the father with child M. and/or C.

• the mother shall not have any contact or communication with the stepchildren

• the mother shall not reside with any person until approved by the Society or a Court Order

• the mother shall not introduce any partners to the children without prior consultation and approval by the Society

• the mother shall cooperate with the Society

• the mother shall allow the Society to attend her home on both an announced and unannounced basis

•  the mother shall allow the Society private access to the children

• the mother shall not use any illegal substances or allow for any illegal substances to enter her home

•  the mother shall consent to all random drug screens

• the mother shall register and actively participate in programs/counseling

•  the mother shall accept and engage with in-home parenting supports

• the mother shall seek immediate referral to a psychiatrist and should follow all recommendations/treatment

• the mother shall register both children for individual therapy and follow any recommendations

• the mother shall notify the Society of any changes

• the mother shall ensure the children’s basic needs are met

• the mother shall at all times be the primary caregiver

• and the mother shall sign any consent forms as requested by the Society

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8.) Children’s Aid Society of (Ottawa) v. JR

 

Facts: In the case of the Children's Aid Society of Ottawa v JR, the facts are as follows. The Child in this matter, ABR, is almost two years old, and she's been in foster care since she was three months old. She was initially placed with her mother, JR, back in early 2017, and was removed from her mother's care in August of 2017. The Court found that ABR was in need of protection, and she became a Ward of the Society for a four-month term. Please note, the father did not respond to this application and was noted in default.

 

Purpose: Given the amount of time that the Child had already been in foster care, there could only be two possible outcomes in this case. The Judge must make a decision to either order ABR to be placed in the Society's extended care with the possibility of being put up for adoption, or that she must be returned to her mother's custody. The Judge in this matter had to consider ABR's best interests. In this case, there is no doubt that JR loves ABR. Society workers that were involved in this case have noted that JR shows good parenting skills while she is with ABR. These things included making sure that ABR was well-fed, clothed, and cared for. ABR has always been happy to see her mother and it's clear to see that JR proactively engages with her.

 

Issue(s): The Society's original involvement stems from the danger presented by JR's partner, DB, and the violence and physical fights that would occur between them. JR and DB have always had a toxic, on-again, off-again relationship, since the beginning of 2016. The Ottawa police had been repeatedly involved with their relationship. DB has assaulted and threatened JR on multiple occasions, and a case went to Court, in which she testified that he had hurt her so many times that she couldn't remember all of them. Despite all these incidents, JR and DB continued to live together until July of 2018, when JR moved out. She promised the Society that their relationship was over.

 

According to the Society, there were still signs that the two were still involved. This stemmed from a series of missed access visits in late October 2018 and JR came in with an unexplained black eye. An investigation was conducted, and DB was found in her apartment in early December 2018, even though he was not supposed to know where she lived. Then, the following year, in early January 2019, JR moved into a women's shelter and told the owner of her apartment building that DB did not have permission to stay there. Later that year in February, the Society gave her the right to have ABR for days at a time and overnight. They told JR that if these visits went well, they were open to returning ABR to her care on a full-time basis, rather than seeking an Extended Care Order. The Society, however, did warn JR that she could not have contact with DB because of the risk that he will present to the child.

 

In March of 2019, JR was observed by a Society worker walking around the neighborhood with DB. When JR was confronted with this information, she had claimed that this was a misidentification, but later admitted that it was DB. At this time, the Society decided that they could no longer support ABR's return to JR. The Society argues that JR has not shown that she will fully protect ABR from the risk arising from her relationship with DB.

 

Over the course of almost two years, JR has missed many access visits due to her relationship with DB and she's also missed most of her counseling sessions with the violence against women counselor. She's also failed to complete programs that would help her break all contact with DB. Even though she has a group of supporters, she's not always honest about her contact or her relationship with DB. JR is not against the Society’s decision to have DB removed from ABR's life. She does, however, argue against the possibility of placing ABR up for adoption. She believes that the Society should take into consideration the bond that she has with her daughter.

 

Another thing that is worth noting is each time JR met up with DB, their daughter was not present, nor in her care. JR believes that with adequate support from the Society, she could protect ABR from the risk of DB. Since ABR is a First Nations, Inuk or Métis (FNIM) child, does ABR continue to be in need of this Court’s protection and if so, what order is in ABR’s best interests? The Judge in this matter also referenced the party's previous history with the Society. JR had previous involvement with the Society as a younger child. Her brother had behavioral issues and her mother struggled with alcoholism. JR was also sexually abused by her own father. JR still receives income from the Ontario disability support program. She's also received support services from Kate Muscat, a worker with Ottawa Carleton Lifeskills. According to Muscat, JR has a learning disability. JR also uses an assistive hearing device. JR does, however, have the ability to manage daily activities on her own. The Judge also took into consideration JR and DB’s relationship over the years.

 

Conclusion: Given this information, the Judge made the following decision. Given that ABR just turned 2 and has spent 21 of the 24 months of her life in foster care, the Judge found if she were returned to JR's care even with a Supervision Order, she would ultimately be back in the system. Ultimately, this would not be in the best interests of ABR. The problem in this case is not just a single mistake that JR made by agreeing to meet with DB, it's also based on the evidence of the past two years and their relationship. JR has not engaged in any of her counseling or therapy that would allow her to understand what unhealthy relationships look like and what threat they pose to her child. As a result, JR will still assume the risk of meeting with DB while still putting ABR at the same risk.

 

Although JR has been more present for her daughter's life in the previous months, she is not taking advantage of the support and resources extended to her to help her sever her ties with DB. JR has also not shown that she can and will say “no” when DB reaches out to her. The proposed No Contact Order does not in fact preclude continued contact between JR and DB. If it were amended, the Judge had no confidence that JR would follow it. The Judge in this matter did give sympathy to JR's situation. The Judge recognizes that JR's childhood did not give her a clear understanding of how a loving parent behaves and how to distinguish between a healthy relationship and an abusive one.

 

Despite all of the concerns, JR has some wonderful parenting skills and has a constant desire to care and protect her daughter, but JR lacks the ability to put her daughter's needs before her own. The Judge believes that JR was given the chance to show that she can place ABR’s best interests ahead of her own, but has failed to do so on more than one occasion. The Judge deemed that the focus must be on ABR’s interests and believed that they would be best served if ABR remain in the extended care of the Society. The society's plan to provide ABR with the opportunity to have a stable and happy childhood environment is in her best interests. The Judge also decided that until JR is provided with the notice of the identification of the adoptive family for ABR, she may continue to exercise her access no fewer than three supervised visits per week.

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9.) Children’s Aid Society (Ottawa) v. A.M

 

Facts: In the case of Children’s Aid Society (Ottawa) v. AM, the facts are as follows. On January 15, 2019, the Children’s Aid Society (Ottawa) filed for a motion for summary judgment under rule 16 of the Family Law Rules on a status review application. This application regards child AR, born in 2010.

 

The Society seeks the following three things: an Order placing the child in the custody of the paternal grandparents, an Order that the child shall have access to her parents at the discretion of the grandparents, and any other further relief as counsel may advise.

 

The Society has been involved with the family for over two years. The Society submits that the parents have yet to demonstrate a period of stability. The mother has not been able to secure regular employment in two years, despite not having the child in her care and not being involved in programming. Currently, the mother supports herself with social assistance. The mother has also failed to stay consistent in attending meetings and visits with the child. The mother also admitted to having issues with her mental health.

 

The father in the matter resides with his parents and the child. He has currently supported himself with social assistance for approximately one year. The father would like to move out on his own, but has not followed up on this desire. The father has also not indicated an independent care plan for the child. The parents minimize and deny the serious concerns made by the Society. The father and the OCL support the decision of the Society. The mother, however, submits that there is a genuine issue for trial because the evidentiary record is not complete.

 

Also, the evidence of the child’s views and preferences are inadmissible at this stage. Further, the mother submits to have the child returned to her care amid a Supervision Order. The mother also believes that if her access is at the discretion of the paternal grandparents, it would lead to conflict.

 

Issue(s): In this case, the protection application was brought forward by the Society in June of 2017, based on the following concerns: significant drug use by both parents; the child’s exposure to drug use; the mother’s inability to maintain a stable home; the parents driving a motor vehicle under the influence of drugs with the child in the vehicle; and the child being exposed to adult conflict and domestic violence.

 

In 2017, an original Order was placed for the child to reside with the paternal grandparents, subject to the supervision of the Society. The father was to have liberal access to the child as long as it was supervised by the grandparents and the mother was granted three visits per week with the child as arranged.

 

From 2017 to 2018, the mother had taken some proactive steps to address the Society’s concerns. The Society at this time was prepared to work with the mother to bring the child back home. However, in 2018 with parental consent, the court ordered that the child shall stay in the care and custody of the grandparents. The parents were then to meet with the child protection worker to discuss enrolling n and participating in an addictions program. Once the program was identified, the parents were to meet with the worker and assessor to determine the appropriate treatment program. The parents were to demonstrate their ability to maintain sobriety following the program and were to participate in supervised, random drug screens.

 

The grandparents, weeks later, had contacted the worker over concerns that the mother was under the influence. It was also observed that the child was afraid of her mother, and in one instance, ran back to the car crying.

 

Legal Analysis: In July of 2018, the Society filed a status review application to place the child in the custody of the paternal grandparents under section 102 of the CYFSA. The parents at this time each filed an answer and plan of care opposing the proposed Custody Order. On August 27, 2018, Justice Summers ordered for disclosure from various police departments. The Society received over 1000s of pages of reports. The mother has had frequent contact with various police stations. The mother had multiple criminal charges including disqualified driving while driving on a suspended license; trespass to property; impaired driving while being in the possession of drugs such as cocaine, amphetamines, methamphetamines, benzylpiperazine and GHB. The father also has a history with the police. The father had been charged with impaired driving; possession of drugs including GHD and speed, as well as breaking probation orders.

 

Conclusion: Based on the presented facts, the following decision was made. On the issue of access, the Justice finds that the overall access has worked for the child. The Justice also found that the current access of two times per week supervised should be replaced. The mother and the paternal grandmother should have been able to work out a schedule that benefits the child. Further, if the situation requires judicial intervention, the mother may commence an application to vary and specify the access. Overall, it was ordered that the child be placed in the custody of her paternal grandparents, pursuant to section 102 of the Child, Youth and Family Services Act. It was also ordered that the child shall still have access to her parents at the discretion of the paternal grandparents.

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10.) Children’s Aid Society of Algoma v M.V. L. V, 2019

 

Facts: In the case of Children’s Aid Society of Algoma v M.V. L. V, 2019 the facts are as follows. The mother, MV, and the father, ML, were served on March 5, 2019 in the matter of their children. The children in the case are ML, born in 2009, and M.A, born in 2013. On March 6, 2019, the matter was first heard in court.

 

Purpose: The matter was brought forward by the Children’s Aid Society as a direct application. Under the current wording of the legislation, a direct application means “bringing the children to a place of safety.”

 

Issue(s): The main issue in the case relates to the relationship between ML and the mother of the children, ML and MA. There is a consistent history of domestic violence in the relationship. ML had previous charges relating to domestic violence, forcible confinement and mischief. ML was in custody from October 2016 to January 16, 2017. ML also has a child from another relationship with RK. SM and RK separated in March 2017. Child protection services visited the home of RK in June of 2017 after the police were contacted regarding a verbal dispute between RK and ML surrounding the child they had together.

 

Facts:

As of November 2017, it appeared that the biological mother of the children in this case and ML were now in a relationship. In light of ML’s previous domestic violence history, a child protection worker spoke with the mother. The mother agreed to sign a six-month Family Service Agreement that stated ML would not reside in the house with the mother and would not be in a caregiving role to the children.

 

Later that year in December of 2017, ML admitted to a child protection worker that he does lines of cocaine and smokes marijuana daily. ML was then incarcerated for a second time from January 2018 to September 2018.

 

On September 4, 2018, it was reported to the Children's Aid Society that ML was living with the mother. At this time, the mother and ML met with the child protection worker, Jessica Bernhardt, to review the six-month Family Service Agreement. The mother expressed concerns of ML having a caregiving role. It was agreed that ML could not be in a caregiving role until approved by the Society.

 

By November of 2018, ML had approved care of the children, but only for brief periods of time. Once ML was in a caregiving role, a series of events occurred over a period of two weeks that led to the court application. The events that led to the court application over a period of two weeks are as follows. The mother and child ML were driving to the grandmother's for supper when child ML and the mother got into an argument. ML called the mother a “bitch and an asshole.” The argument stopped upon arrival, but continued on the drive home. The mother wanted to take ML to his mothers’ home for the night, but ML refused, grabbing the wheel and almost causing the car to go into the snowbank. ML yelled at the mother to stop the vehicle, and at that time, got out of the car and stayed with a friend for the night. In addition, the Child said that father ML would drink alcohol with the grandfather, but he has never seen father ML drink at home. The other Child, MA, indicated that she has never seen father ML hit her mother, but has seen her mother hit father ML in the forehead with her fingers. MA has also indicated she wishes to live with the father, ML.

 

In February of 2019, the mother attended the afterschool program to speak with MA. The child protection worker also attended. The mother asked MA if she wanted to live with her father and she confirmed. It was also confirmed that MA would live with the mother if ML moved out. The child protection worker indicated that the children are not safe in the home when the mother and ML are together. In terms of the biological father, there is very little material pertaining to him. However, child ML made disclosure pertaining to the father’s current spouse and the use of physical discipline. With respect to the children, child ML has no reported problems or issues. MA on the other hand, was diagnosed with severe speech delay and apraxia and has been receiving therapy twice a week.

 

Issue(s):

The main issue before the Court is whether the children should remain in the care of the biological parents with no conditions or with some conditions. If conditions are needed, what should they be? Justice R. Kwolek made the following decision based on the presented facts. It is with satisfaction that division of custody should continue between the mother and father with reasonable conditions. It is found that the Court is concerned with ML and the relationship with the mother. These concerns are related to ML’s past history of domestic violence and the current evidence of domestic violence, mainly verbal and episodic with the current spouse.

 

The Court is also concerned with the mother’s minimization of the current household violence and the lack of involvement in her programming to assist and deal with her relationship issues. The mother was granted a year to enroll in the program and has not done so. The mother has made some effort by indicating that she is now enrolled in counseling, meeting regularly with the child protection worker and the mother has contacted the police for the removal of ML when needed.

 

In terms of the biological father, the Court has very little concerns other than minimal evidence of substance abuse, domestic violence and punishment within the household. The Children’s Aid Society has requested very little terms on behalf of the father and the father appeared to be willing to comply.

 

Conclusion: Justice R. Kwolek drafted a temporary Order for supervision that could manage the risk to the children. Appropriate conditions were also put in place for ML that would not compromise the safety of the children based on the presented evidence.

 

The mother was subject to the following conditions: the mother shall not discourage the children from open discussions about their views and observations within the home while speaking with the child protection worker. The mother is also required to have father ML leave the home if he engages in any form of domestic violence or is intoxicated. If father ML refuses to leave the home, the mother is to immediately contact the police for assistance or the mother is to immediately leave the location where the domestic violence is occurring. In accordance with child MA, the following clause was put in place, “any parenting time that the mother is to have with the child MA shall be in accordance with MA’s wishes.” Given the concerns expressed by child MA, it was not found necessary for an order to be put in place for ML to have little to no contact with the child.

 

The parties are aware that if anything should change with their cooperation with the Children’s Aid Society or with the terms of the order, the Children’s Aid Society may need to take further action into the matter for the safety and the protection of the children. This can include a motion being brought forward for the mother and ML to have restricted contact with the children.

 

The conditions for the biological father in this matter include: the father will not engage in any punishment of the children and will not allow anyone acting as a parent for the children to engage in any punishment. A number of other temporary orders were made and additional time was requested for the mother to file responding material.

 

The Court looked into other applications in other jurisdictions but found no outlining protocols. Overall, the Judge is the gatekeeper and should ensure the best interests, protection and well-being of the children while ensuring that the hearing is conducted in a fair manner.

 

Sources: CanLii. Children’s Aid Society of Algoma v M.V. L. V

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