Child Custody

CAS v ER and M.B.B: Unexplained Injuries

In the case CAS v. E.R. and M.B.B., 2020 CarswellOnt 9478. Justice Pazaratz was tasked with deciding whether to terminate a final Order that left a 29-month-old child in the custody and care of his maternal grandmother while having supervised access with his mother and father. In late 2019 the parents began having unsupervised approved by the Children’s Aid Society.

Background

The parties child was 7 weeks old at the time of the injury which took place in early 2018. The child suffered an unexplained brain injury and as a result had brain bleeding, hemorrhaging and eye hemorrhaging. He also had bruises on his stomach and his back. He remained in the hospital for a long period of time and unfortunately suffered many severe seizures and further eye hemorrhaging. The doctor who assessed the child determined that the child had suffered at least one episode of severe trauma to the head, back and abdomen and the injuries may result in a permanent disability. At the time of the injury, it was undisputed that the child was only in the care of his parents, who were unable to provide any explanation for the injuries. The family sought a second opinion regarding the child’s injuries and both doctors had independently concluded that the child’s injuries were inflicted onto him by another person. Further, the second doctor’s neurologic findings identified that he suffered traumatic head injuries on at least two occasions. The parents also rejected this determination but were still unable to provide any alternative explanation. No criminal charges were brought against either parent because it was impossible to establish which parent caused the injuries. Children’s Aid Society presented to the court that the child suffered physical harm at the hands of one or both parents.

In response to the abuse, and once the child was well enough to return home, he spent the next 2 years living with his maternal grandparents where his condition was able to significantly improve. During these two years, both parents exercised regular supervised access. In the late fall of 2019, as the parents had complied with all of the terms imposed by the court and the child thriving, the parents were able to begin having unsupervised access. The child remained in his grandparent’s care until January 20, 2020. On January 20, 2020 an Order was made on consent for the child to be placed in the care of his parents for a period of 5 months, under the supervision of the Children’s Aid Society.

Analysis

On June 17, 2020, the Children’s Aid Society was comfortable that it was time for supervision to cease and brought a Status Review Application seeking to terminate the supervision Order. Justice Pazaratz was tasked with determining whether it was time to lift the supervision Order. He heard evidence that the parents had complied and saw to every medical need of the child, cared for the child well, and attended programming to improve their parenting skills. Ultimately, Justice Pazaratz was tasked with deciding whether it was safe for this child to be back in the unsupervised full care of his parents. Justice Pazaratz was happy with the progress the child appeared to be making and agreed that the parents appeared to be doing a good job of taking care of him. However, due to the gravity of the abuse and the resulting injuries on the child, Justice Pazaratz was weary to grant the Order removing supervision. In his opinion, it is our job as a community and judicial system to protect all children and ensure that their vulnerability is not preyed on.

The court sought to engage in balancing various objective when making its determination such as the fact that supervision orders are intrusive and disruptive for the child. Interestingly, the court noted that because of COVID -19, currently supervision is less intrusive and expensive than normal because supervision can be done over teleconference.

Ultimately, Justice Pazaratz decided that it was just too early to life the supervision Order and was not comfortable at this time that the child was 100% in a safe environment and ordered ongoing supervision by the Children’s Aid Society.

For more information, please call us at Feldstein Family Law Group P.C. or contact our firm online.

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