WARNING
The court hearing this matter directs that the following notice should 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: Children’s Aid Society of Toronto v. A.S., 2022 ONCJ 553
DATE: November 29, 2022
COURT FILE No.: C42752/22
BETWEEN:
Children’s Aid Society of Toronto Applicant,
— AND —
A.S. (mother) T.J.R. (father) C.S. (caregiver entitled to Notice)
Before Justice Roselyn Zisman
Heard on November 10, 2022
Reasons for Judgment released on November 29, 2022
Linda Hofbauer............................................................... counsel for the applicant society Colin Tobias............................................................... counsel for the respondent mother Emma Brown.................................................................... agent for the respondent father C.S. (maternal grandmother and caregiver)....................................... on her own behalf
Endorsement
Zisman, J.:
1. Introduction
[1] This is a motion by the Respondent T.R. (the father) for an order that the children A. who is 3 years old and M. who is almost 2 years old (the children) be placed in his care.
[2] The Children’s Aid Society of Toronto (the society) supports the father’s motion although it has no concerns about the care the children are receiving from the maternal grandmother who is their current caregiver.
[3] The Respondent A.S. (the mother) opposes the order and seeks an order that the children remain in the temporary care of the maternal grandmother.
[4] The maternal grandmother stated that she was unaware that she had any say in the proceedings. But based on her affidavit and submissions it is clear that her position is that the children at this time remain in her care. She was under the impression that the father planned to move back to Toronto and then would be more involved and have visits on weekends.
2. Background
[5] The mother and father are the biological parents of the children.
[6] The society was involved with the parents from May 10, 2021 to April 19, 2022 as a result of concerns about the mother’s long standing drug addiction and continued use of cocaine while caring for the children, the father’s use of crack cocaine and conflict between the parents.
[7] In May 2021, the maternal grandmother called the society to notify them that the mother was a drug addict and would often care for A. while using drugs. She also reported that the father was a crack cocaine user but would not use while in a caregiving role.
[8] Both parents acknowledged their drug use.
[9] The mother reported that she had been in a methadone treatment program for the last year. The doctor at the clinic reported that the mother regularly tested positive for cocaine and opiates (Percocet). The society intake worker expressed concerns that the mother was using drugs while in a caregiver role for A. as she was her primary caregiver while the father was often away from home at work.
[10] The father reported that he started to use cocaine in August 2020. He acknowledged that it was a problem and that he sought treatment through attending NA in December 2020 and had not used since that time.
[11] The society verified concerns regarding caregivers with a drug problem and the child being exposed to partner violence.
[12] On May 21, 2021, the parents decided to place A. in the care of the maternal grandmother. A kinship assessment was initiated and the parents signed a Voluntary Service Agreement.
[13] By June 2021, the parents were no longer in agreement with A. remaining in the care of the maternal grandmother. Neither parent appeared to be using drugs while caring for A. and the mother’s last positive screen was on May 21, 2021. The society agreed that A. be returned to the care of the parents with a safety plan utilizing the maternal grandmother.
[14] The maternal grandmother reported that on August 27, 2021, she had removed the mother from the home as the father had gone out on a “binge” and when they returned the father would not let them into the apartment for 45 minutes and then he was seen lying on the bed with a crack pipe. He father initially said that it was the mother’s crack pipe and that the maternal grandmother should take A. The maternal grandmother was also concerned that the mother, who was pregnant, was using drugs.
[15] The father subsequently admitted that he had used crack cocaine that evening and stayed out all night but he had not used since.
[16] The father left the home on September 20, 2021 and acknowledged that A. should not be exposed to the parents’ conflict. He advised the society worker that he suspected the mother was using drugs. He felt that A. was safe with the mother as long as the maternal grandmother was supporting her.
[17] The father deposed that at the time he needed to secure suitable accommodations and could not care for the children until then as the mother stayed in their apartment.
[18] The father had limited contact with the mother or A. after the separation. The father in his affidavit complains about the mother denying him access.
[19] The mother gave birth to M. who although healthy tested positive for cocaine with low withdrawal levels.
[20] The father returned to the apartment shortly after M. was born in early […] 2021. Neither parent attended for M.’s follow-up appointment. The mother did call to advise that she had not realized the appointment was that day and would reschedule.
[21] In February and March 2022, both the father and maternal grandmother expressed concerns to the society about the mother using drugs. Bu the mother’s drug screens were negative and the society’s infant nurse specialist reported that M. was healthy and there were no concerns.
[22] In March and April 2022, the father was reporting that his conflict with the mother was escalating but the parents were staying together as they could not afford to separate due to financial issues and were coparenting.
[23] In April 2022 the society closed its file as the family was being supported by the maternal grandmother and she was seeing the children regularly. The maternal grandmother agreed to contact the society if there were further concerns. A. was attending daycare and both A. and M. presented as happy, healthy and meeting their developmental milestones.
[24] On May 26, 2022 the maternal grandmother contacted the society to report that the parents were struggling financially and struggling with drug use. She advised the society of the incident that occurred on May 21st.
[25] On May 21st, maternal grandmother had recommended that the mother and children come to her home due to the ongoing conflicts and violence with the father. However, that evening the maternal grandmother told the mother to leave her home when she found cocaine on the mother and in close proximity to the children. The mother would not leave so the maternal grandmother contacted the police who could not attend that evening due to the weather. The mother voluntarily left the next day.
[26] The father later dropped off the children’s belongings. The father told the maternal grandmother that he and the mother were struggling and they could not care for the children.
[27] The children remained with the sole care of the maternal grandmother. The maternal grandmother reported to the society that she was extremely stressed by the current arrangements as she worried that if she did not do or say what the parents wanted that they would take the children. She was struggling financially and did not have any documentation for the children so she could apply for any available funding. She had asked the parents to provide funds but neither provided her with any funds despite the fact that the father was working.
[28] The father advised the society worker that he had left the home but then recently returned. The father did not provide any details as to when he was present. He confirmed that there had been an argument with the mother on May 21st but denied that he hit the mother. He confirmed that the children were present during the argument and that he had left A. in the bathtub while they argued. He agreed that this was dangerous.
[29] On June 6, 2022 the father attended at the apartment and removed his belongings and moved in temporarily with his mother in Norfolk County.
[30] The father initially advised that he wished to coparent with the mother so that she would care for the children during the week, when it was safe for her to do so and he would care for them on the weekends. He further stated that he knew the children needed stability and it was too much of a hurdle for him to care for them fulltime. He was agreeable for the children to remain with the maternal grandmother as he knew they were safe with her.
[31] However, several days later he advised the society worker that he changed his mind and wanted to present a plan for the children. He was open to a co-parenting plan with either the mother or the maternal grandmother. He acknowledged that he had made mistakes, had some slip ups using cocaine and demonstrated poor judgement when he left the children with the mother despite knowing that the mother was using cocaine. He advised the society worker that he was open to proving his sobriety through testing.
[32] The mother also reported to the society worker that she wished to plan for the children. She had nowhere to live as the apartment lease was in the father’s name and was terminated. The mother was exploring further treatment options. According to the methadone clinic, she tested negative in June.
3. Court proceedings and position of the parties
[33] The society commenced a Protection Application on June 16, 2022 seeking an order that the children be placed with the maternal grandmother for 6 months pursuant to terms of supervision.
[34] The society sought a temporary order for the children to remain in the care of the maternal grandmother to allow more time for the society to assess the parents’ current levels of substance misuse, as well as for the parents to work on their sobriety, find stable housing and clarify their plans for the children.
[35] On June 23, 2022 a temporary without prejudice order was made placing the children with the maternal grandmother with access to both parents in the discretion of the society and in consultation with the maternal grandmother. The father was represented by his current counsel and the mother and maternal grandmother were not represented but were assisted by duty counsel.
[36] The matter was adjourned to August 30th for a temporary care and custody motion or a case conference.
[37] The parties did not proceed with the temporary care and custody motion on August 30th. Leave was granted to any party to bring a motion regarding the placement of the children. At the request of counsel, a motion date was set for November 10th although the court had much earlier dates available.
[38] The father subsequently sought an extension to file his materials that was granted.
[39] Counsel for the father takes the position that this is the return of the without prejudice temporary order that is, that it is the temporary care and custody motion. She further takes the position that the parents were jointly in charge of the children at the time of their removal.
[40] Counsel for the mother submits that the without prejudice order became a with prejudice order due to the passage of time and that the mother was the parent in charge of the children prior to the intervention of the society.
[41] Counsel for the society submitted that she assumed that the father’s motion was a motion to vary the temporary order that was deemed to be a with prejudice order. This is the reason that the society filed a response to the father’s motion as opposed to a Notice of Motion to place the children with the father.
[42] The society’s Protection Application and the temporary care and custody motion presently before the court still support placement with the maternal grandmother although the society’s responding affidavit now supports the father.
[43] Counsel for the society submits that the society was providing services to both parents and submits that both parents were jointly in charge of the children prior to their removal.
[44] The father in support of his Notice of Motion, relies on his affidavit sworn October 19th ,2022 and a responding affidavit sworn November 8th ,2022. The mother relied on her affidavit sworn November 7th, 2022. The society relied on the responding affidavit of the family service worker sworn November 3rd ,2022. The maternal grandmother relied on her affidavit sworn November 9th,2022.
[45] The court also reviewed the pleadings and the initial affidavit of the society sworn June 16th ,2020 and an affidavit of the father sworn July 5th, 2022.
[46] As in most contested temporary motions, there is limited evidence based on affidavits that have not been subject to the scrutiny of cross-examination. In this case, the mother and father’s version of events especially as to their roles in the lives of the children is contradictory.
[47] I find that the father has contradicted himself on several important issues and most specifically about his role in the care of the children and his role with respect to decision-making responsibilities.
[48] I find that both parents have minimized their drug use and the impact of their ongoing verbal and physical conflicts on the children.
[49] I find the maternal grandmother’s evidence as relayed in her affidavit and in her discussions with the society workers to be credible. Where the evidence of either the mother or the father contradicts the events as outlined by the maternal grandmother, I prefer her evidence.
[50] The maternal grandmother has proven herself to be protective of the safety and well-being of her grandchildren and has not hesitated to report concerns about both the mother and father. She has been very involved in caring for the children when the parents were unable to do so.
4. Applicable Legal Principles
4.1 Is this an originating temporary care and custody motion or a motion to change?
[51] Counsel for the mother and the society took the position that due to the lapse of time, the without prejudice order should be treated as a with prejudice order and that the father’s motion should be treated as a motion to change pursuant to sec. 94 (9) of the Child, Youth and Family Services Act (CYFSA).
[52] Counsel for the father submitted that this was an originating temporary care and custody motion pursuant to sec. 94 (2) of the CYFSA as the father always had the intention of proceeding with the temporary care and custody motion.
[53] The distinction is important as different legal tests apply.
[54] If this is an originating temporary care and custody motion, then the onus is on the society to establish on credible and trustworthy evidence, that there is a real possibility that if the children remain or are returned to the person who had charge of the children prior to intervention of the society that it is more probable than not that the children will suffer harm and that the children cannot be adequately protected by terms of a supervision order.
[55] If instead this is a variation of an existing temporary order, then the father must establish that there has been a material change in circumstances since the making of the last order which justifies a change of the current status quo so that the children should be placed in his care.
[56] There is jurisprudence that without prejudice orders do not continue indefinitely and have a limited “shelf life”. For example, Justice Brian Weagant in Children’s Aid Society of Toronto v. K.N. 2008 ONCJ 340, [2008] O.J. No. 3074 (Ont. C.J.), wrote at paragraph 14 and 15:
I do not agree with the proposition that an order made "without prejudice" can bind the court prospectively and indefinitely on the issue of who has "charge" of the child. In my respectful view, notwithstanding a prior "with prejudice" order, once an intervening "without prejudice" order is made placing the child elsewhere, the presumption described above has a dwindling shelf life.
Passage of time in the care of another person, even if it is on a “without prejudice” basis, can effectively create a new status for the child. As I have argued in other contexts, children are not pieces of furniture that can be stored for the convenience of a parent who wants to rehabilitate his or her situation, only to be taken out of storage once that parent feels that he or she is ready to argue the motion.
[57] Justice Weagant implied that 3 to 6 months might be sufficient to displace the legal assumption of who has charge of a child.
[58] In the case of Children’s Aid Society of Ottawa v. J.M. 2010 ONSC 7119, the court considered a lapse of 8 months from the date of the without prejudice order to be a relevant factor in assessing placement.
[59] In order to determine if the “shelf life” of a without prejudice order has expired, the facts of each case need to be determined.
[60] In this case, the mother left the children in the care of the maternal grandmother on May 21, 2022. The father agreed or at the very least acquiesced and took the position that he needed more time to prepare a plan to care for the children.
[61] The father indicated he needed to find accommodations before he could proceed with his plan. But in his July 5th, 2022 affidavit he deposes that he had accommodations with his mother, so there is not explanation as to why he did not proceed with the temporary care and custody motion on August 30th. This appears to weigh in favour of treating the father’s motion as a motion to vary the temporary care and custody order.
[62] However, it has continually been his position that his agreement to leave the children in the care of the maternal grandmother was only temporary. But he has never been clear as to when he planned to move forward with his plan or how long “temporary” meant.
[63] Even on this motion, although the Notice of Motion requested the children be placed in the father’s care, it was submitted that he was seeking a transitional order with his access being gradually increased until the children are placed in his full-time care.
[64] In this case, the children have resided with the maternal grandmother for almost 6 months, which is a very long time in the lives of such young children. This is a significant fact for the court to consider.
[65] However, despite the factors that weight in favour of treating this as a motion to vary the June 23rd order, I agree that a court should be cautious about removing or interfering with the rights of a person who may have had charge of the child pursuant to sec. 94 (2) of the CYFSA. See Catholic Children’s Aid Society of Toronto v. W.I. 2014 ONCJ 62; Catholic Children’s Aid Society of Toronto v. F.Y.I. 2016 ONCJ 463.
[66] I am therefore prepared to proceed on the basis that the without prejudice order nature of the June 23rd temporary order has not lapsed.
4.2 Legal considerations on a temporary care and custody motion
[67] The legal test to apply on this temporary care and custody motion is set out in sec. 94 (2), (4), (5) and (6) as follows:
Custody during adjournment
(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 a place of temporary detention, of open or of secure custody.
Criteria
(4) The court shall not make an order under clause (2) (c) or (d) unless the court is satisfied that there are reasonable grounds to believe that there is a risk that the child is likely to suffer harm and that the child cannot be protected adequately by an order under clause (2) (a) or (b).
Placement with relative, etc.
(5) Before making a temporary order for care and custody under clause (2) (d), the court shall consider whether it is in the child’s best interests to make an order under clause (2) (c) to place the child in the care and custody of a person who is a relative of the child or a member of the child’s extended family or community.
Terms and conditions in order
(6) 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.
[68] In the case of Children’s Aid Society of Ottawa- Carleton v. T. 2000 CanLII 21157 (ON SC), [2000] O.J. No. 2273 (Ont. Sup. Ct.), Justice Jennifer Blishen set out the test on a temporary care and custody motion as follows:
The children’s aid society must establish, on credible and trustworthy evidence, reasonable grounds to believe that there is a real possibility that, if the child is returned to his or her parents, it is more probable than not that he or she will suffer harm. Further, the society must establish that the child cannot be adequately protected by terms and conditions of an interim supervision order to the parents
[69] A court must also consider the paramount purpose of the CYFSA is to promote the best interests, protection and well-being of children (subsection 1).
[70] A court must choose the order that is the least disruptive placement consistent with adequate protection of the child (subsection 1 (2). See: Children’s Aid Society of Hamilton v. B.D. and F.T.M., 2012 ONSC 2448.
[71] The degree of intrusiveness of the society’s intervention and the interim protection ordered by the court should be proportional to the degree of risk. See: CCAS of Toronto v. J.O.1, 2012 ONCJ 269.
4.3 Who had charge of the children?
[72] Section 94(2) of the CYFSA gives priority to the person who had “charge” of the children prior to the intervention under Part V sec. 94 (2).
[73] The father submits that both he and the mother had “charge” of the children at the time of their removal. The father submits that he was heavily involved in the care of the children while the parties resided together. The society also agrees that both parents had charge of the children prior to their removal.
[74] The mother submit that the mother had charge of the children at the time of the society’s intervention.
[75] It is important to note that this is not a case where the society removed the children from the care of either parent. Rather the mother agreed on May 21st that the children be placed in the care of the maternal grandmother and the father consented or at the very least acquiesced to this placement.
[76] It is also important to note that no one submitted that the maternal grandmother was the person who had charge of the children prior to the society’s commencement of the Protection Application.
[77] The issue of the meaning of who had charge of a child was thoroughly reviewed by Justice R. J. Harper in the case of Children’s Aid Society of London and Middlesex v. S.D. 2008 CanLII 49155 (ON SC), [2008] O.J. No. 3796. Justice R.J. Harper reviewed the caselaw in the context of s. 51 of the Child and Family Services Act [now s. 94 under the CYFSA]. The analysis is equally applicable to s. 94 (2) of the CYFSA and has been followed in many cases since the amendments to the legislation.
[78] Justice Harper in paragraphs 22-32 states as follows:
22 The structure of s. 51(2)(a) and (b) directs the court to return a child to the "care and custody of the person who had charge of the child immediately before intervention" without supervision or with supervision and terms and conditions. The court cannot keep the child in the care of the Society "unless the court is satisfied that there are reasonable grounds to believe that there is a risk that the child is likely to suffer harm and that the child cannot be protected adequately by an order under clause (2)(a) or (b)." [my emphasis]
23 The term "charge" is not defined in the CFSA. It has been interpreted in at least three cases. In Children's Aid Society of Algoma v. Teena G. et al. (2002), 2002 CanLII 52569 (ON CJ), 125 A.C.W.S. (3rd) 1020 (Ont. C.J.), Kukurin J. considered the definition of "charge." He made the following comment at para. 15: "... 'Charge' has connotation of authority and responsibility. 'Charge' of a child suggests some established relationship, not something transient or temporary. ..."
24 Kukurin J. did not think that simply having possession of a child was sufficient to bring that person within the meaning of the term "charge".
25 In Children's Aid Society of Ottawa v. H.C. and C.C. (2003), 2003 CanLII 38754 (ON SC), 127 A.C.W.S. (3d) 1159 (Ont. Sup. Ct.), Blishen J. also considered the meaning of the term "charge" in s. 51. Blishen J. found that "charge" was linked to the term "care and custody" within s. 51:
- In order to apply the appropriate test on this care and custody motion, it is necessary to determine who was "the person who had charge of the child immediately before intervention". The word "charge" is not defined under the Child and Family Services Act. However, a close reading of the legislation makes it clear that the term "charge" is linked to the term "care and custody" as outlined in clauses 51(2)(a) and (b), which state that the child
... remain in or be returned to the care and custody of the person who had charge of the child immediately before intervention.
26 Blishen J. stated that questioning who had "charge" of the child is akin to questioning who had "care and custody." Like Kukurin J., Blishen J. was of the opinion that there had to be an active relationship of care and not mere possession of the child.
27 Most recently, in Children's Aid Society of Toronto v. S.A., 2008 ONCJ 348, [2008] O.J. No. 3110 (Ont. C.J.), Spence J. considered the same issue. In that case, Spence J. splits the idea of "charge" and "custody." He adopts a definition of "charge" that is grounded in actively caring for the child and potentially distinct from the legal notion of "custody." Spence J. ultimately determines "charge" to mean an active, caring relationship. He states:
[48] However, clause 51(2)(a) of the Child and Family Services Act does not talk about returning the child to the person who had "custody" but rather, returning the child to the person who had "charge" of the child. There clearly is a difference between the meaning of "custody" and "charge". There could be many instances where one person has custody of the child and another person has "charge" of that child.
28 Spence J. gives an example of his reasoning to demonstrate the difference. He describes a situation whereby a single mother, who has custody and charge of a child, informally relinquishes that child to an aunt for care purposes. After several months in the aunt's care, for example, the child would no longer be in the mother's "charge" but rather the aunt's. Spence J. was of the view that for a person to have "charge" of a child there must be evidence of active care and responsibility. However, clause 51(2)(a) of the Child and Family Services Act does not talk about returning the child to the person who had “custody” but, rather, returning the child to the person who had “charge” of the child. There clearly is a difference between the meaning of “custody” and “charge”. There could be many instances where one person has custody of a child, but another person has “charge” of that child.
29 I agree with the reasoning of Spence J. I am of the view that there must be evidence that a person has an active relationship with the child that includes care and responsibility. It is something more than physical possession or limited incidents of care.
30 I am of the view that s. 51 is structured in the manner that it is because the statute establishes a priority to the person who may have had the most active and responsible involvement with the child immediately before the apprehension.
31 If the court determines that the evidence discloses that there is a person who had the charge of the child immediately before intervention, then the court must return the child to that person unless there are reasonable grounds to believe that there is a risk that the child is likely to suffer harm and that the child cannot be protected adequately by an order that provides for a return on terms (s. 51(3)).
32 It is possible that more than one person had the charge of the child immediately before intervention and they subsequently compete for the return of the child to them at a temporary care hearing. In that case the court must consider the risk of harm of returning the child to either person.
[79] Counsel for the father relies on the case of Children’s Aid Society of Brant v. J.R. 2022 ONCJ 166 where Justice K.A. Baker cites the case law reviewed by Justice Harper and subsequent cases where the court has held that more than one person can have “charge” of a child. Justice Baker noted that in the case before her there was no court order and despite the child living primarily with the mother both parents had charge of the child. She relied on s. 20(1) of the Children’s law Reform Act (CLRA) that provides both parents are equally entitled to decision-making responsibilities. The court further noted that sec. 20 (2) of the CLRA provided that a person entitled to decision-making responsibilities with respect to a child has the rights and responsibilities of a parent of a child and must exercise those rights and responsibilities in the child’s best interests.
[80] The case is disguisable from the facts of this case. In the case before Justice Baker, there was a finding of fact that the child was in the shared care of both parents although spending a majority of time with the mother, that the father was an involved parent and involved in taking the child to various professional appointments. The child had also been in his care of the father for 6 months after being removed from the mother pursuant to a temporary without prejudice order.
[81] In this case, the evidence does not convince me that the father was in charge of the children at the time of the society’s intervention under Part V.
[82] The history of this family indicates that the children were in the primary care of the mother and were not left in the exclusive care of the father for any appreciable amount of time. When the parents could not care for A., they placed her in the care of the maternal grandmother. After M. was born, she was in the primary care of the mother and then both A. and M. were placed with the maternal grandmother.
[83] The history of the father’s role in the care of the children is unclear from the father’s outline of the facts.
[84] The father in his July 5th, 2022 affidavit, stated at paragraph 10, “While A. [the mother] and I were residing together in our relationship, A. [ the mother] was the children’s primary caregiver and I worked full-time.”
[85] However, in his November 8th affidavit at paragraph 16, he deposes, “A. [the mother] and I divided the responsibilities for our children throughout our relationship and until our final separation. A. [the mother] was not the primary caregiver. I was the primary caregiver when I was home and when I was not home, daycare was used.”
[86] According to the affidavit of the maternal grandmother, the children would often be left with her and the father would demand that she take them so he could go to Simcoe. When the parents fought, the father would leave for days at a time leaving the mother alone with the children. The maternal grandmother would often need to take A. to daycare in the morning on her way to work and pick her up.
[87] It was the grandmother, once the children were in her care that ensured that M.’s vaccines were up to date and ensured that A.’s extensive dental work was completed. If the father was the primary parent who had decision-making responsibilities and if he was the parent responsible for their health care then he neglected his responsibilities to the children.
[88] In the father’s affidavit of October 19th, he deposes that both parents struggled with drug addiction and both were caught by the maternal grandmother using drugs while the children were in the home. However, on several previous occasions, the father had stated to the society worker that he never used drugs in the presence of or while caring for the children.
[89] The father deposes that when the mother placed A. with the maternal grandmother in May and June 2021 and he was not involved in that decision as he was out of town. But this is contradicted by the society worker’s affidavit that both parents signed a voluntary agreement to place A. with the maternal grandmother.
[90] The father left the relationship in September 2021 and left A. with the mother. In other words, although there was no custody order, the father left the decision-making responsibilities up to the mother. This is despite the fact that he was aware that the mother was using drugs.
[91] After the birth of M. in […] 2021, the father returned to the home. But he advised the society worker that he left at various times. It is not clear when he was in the home or what his caregiving role was.
[92] When the parties fought on May 21st ,2022 the mother removed the children to the home of the maternal grandmother. At that time, the society was not formally involved with the family as it has closed its file in April 2022.
[93] When the society commenced their Protection Application, the children were in the physical care of the maternal grandmother but I find that they were in the custody of the mother.
[94] I find that after the parties separated in September 2021, the father left the mother with de facto custody of the children. Based on the evidence before me on this motion, the father had limited contact with A. and M. after this time. Even if the parties lived together for some periods of time from December 2021 to April or May 2022, the father did not provide evidence to establish his caregiving role and any decisions were made by the mother. There was evidence that the parents were only staying together due to financial issues.
[95] I find that the mother since the parties separated in September 2021 A. remained in the de facto custody of the mother. After M. was born it was again the mother who had de facto custody and the mother made the decisions with respect to both children.
[96] Although the father was concerned about the mother’s drug use, he took no steps to obtain custody of the children and was content that the mother and maternal grandmother care for them.
[97] When the mother agreed that the children remain in the care of the maternal grandmother on May 21st, it was the maternal grandmother that had charge of the children and who had the authority and responsibility over them. She arranged for the parents to have access to the children.
[98] The father did not provide any timeline or details about his involvement in the lives of the children. He did not provide any third-party evidence that he was the parent that made any decisions or had responsibility regarding the children. He provided vague evidence such as that he took the children to daycare that was contradicted by the maternal grandmother. He stated he attended at medical appointments. He provided no evidence for example from the daycare, doctor or dentist that he was “actively involved” in the children’s lives.
[99] Quite the contrary, it appears that the father despite having serious concerns about the mother’s drug use was still prepared to leave the children in her care on multiple occasions.
[100] When M. was born in […] 2021, the father was at the hospital. However, the parties were still separated and the mother made the decision to remove M. from the hospital, against the doctor’s advice and take her home. Both children then again remained in the care of the mother.
[101] The relevant time to determine who had “charge” of a child, is the commencement of the Protection Application.
[102] At time of the commencement of the Protection Application, the children were in the care of the maternal grandmother with the consent or at least acquiescence of both parents. The mother at the time had de facto custody and charge of the children. The mother looked to her mother for assistance as had been done many times previously. Accordingly, at the time of the society’s intervention, the mother had care and custody of the children but the maternal grandmother had charge of them.
[103] I therefore find that at the time of the society’s intervention the mother and the maternal grandmother had charge of the children.
[104] Even if the court had found that both parents had an element of care and custody of these children and the maternal grandmother did not have charge of them, I would not find that the children could not be returned to the father with supervision for the reasons outlined below.
4.4 The Application of the legal test under section 94 (2)
[105] Having found that the mother and the maternal grandmother had charge of the children at the time of the society’ intervention, the next step is to determine if the society has met the two-part test.
[106] The first part of the two-part test under subsection 94 (2) of the CYFSA only has to be met against one of two person’s who had charge of the child. Either will do. It is a low threshold. See: Children’s Aid Society of Algoma v. S.M.M., 2014 ONCJ 12.
[107] The father concedes that the society has met the first part of this test based on the concerns about the mother’s drug use.
[108] The mother also agrees that the society has met the first part of the test but I assume based on concerns about both parents.
[109] The first part of the test is therefore met as the mother concedes that the society has met the onus on it to establish that there are reasonable grounds to believe that the children would likely suffer harm if placed in her care with or without supervision.
[110] With respect to the second part of the two-part test, the case law clearly establishes that when more than one person has charge of a child prior to the society intervention, the court must assess which of the parties is better able to care for the child having regard to the purpose and intention of the legislation. See Catholic Children’s Aid Society of Toronto v. F.Y.I., supra, at para. 78 and cases cited therein.
[111] The mother is not seeking that the children be returned to her care. The mother has a long-standing serious drug addiction. I accept the evidence of the maternal grandmother that the mother has used drugs while in a caregiving role.
[112] The mother supports the children remaining with the maternal grandmother while she continues to deal with her drug addiction. The mother has provided negative drug screens since June 2022 but there is a concern that the drug testing is not random and may even have been manipulated by the mother.
[113] There are absolutely no concerns about the care the maternal grandmother is providing to the children. Both children have flourished in her care and all their medical, dental and emotional needs have been met.
[114] The maternal grandmother is vigilant in ensuring that neither parent’s drug issues place the children at risk. She has organized access for both parents despite the disruption in her own family’s life this has caused.
[115] The father is taking steps to change his lifestyle. He deposes that he has not used drugs since May or June 2022 and has been attending counselling about once a week since July 4, 2022. He is commencing a parenting course.
[116] As I have found that the father did not have charge of the children at the time of the society’s intervention, I do not need to outline my concerns about the risk the children would be placed in if placed in his care and why a supervision order would not be sufficient to mitigate that risk.
[117] However, if I am found to be in error in that the father was also a parent who had charge of the children at the time of the intervention then I would have found that supervision terms would be inadequate to protect these young children from a risk of harm in his care.
[118] The father’s evidence of his positive changes is based on self-reporting and a superficial investigation of his plan by the society. Many concerns that were reported by the maternal grandmother have not been followed up or investigated.
[119] I find the following concerns and lack of a sufficient investigation by the society would place the children at risk if they were placed in the father’s care:
a) The father has not engaged in any drug testing. The father states that he offered to undergo random drug testing but blames the society for not arranging this or the lack of resources in Simcoe. However, as early as June 24, 2022 the father was given information about where to arrange drug testing and he failed to do so.
b) The father provided a short letter from his counsellor whose qualifications are unknown, outlining the nature of his counselling. There are no specifics provided such as if the father acknowledges he has a drug addiction, if he acknowledges any issue with anger or if he has any insight into the impact of witnessing family violence on the children. A fulsome report should have been provided.
c) Although the father does not have a criminal record, he has admitted that he has offences pursuant to the Highway Traffic Act. The society has simply accepted his own statements as to the nature of those offences. Even though the father admitted that he is facing a charge of driving with a suspended licence, the society did not request the father provide proof of the nature of any of his offences. This is particularly concerning as the father has been transporting the children.
d) The assessment of the paternal grandmother was essentially only a safety inspection of her home. It offered no insight into her relationship with the children or her ability to intervene and protect the children if the father used drugs.
e) Even though the father has been exercising access in his home for many months, there were several safety concerns noted that needed to be remedied. It should not have required a society worker to point out such issues.
f) The society has not yet received information about the nature of the paternal grandmother’s history with the children’s aid. She admitted that she had a drug addiction history but it was 20 years ago. Nevertheless, the maternal grandmother has reported that the paternal grandmother has a drinking problem and this should have been explored by the society.
g) There is no information about the paternal grandmother’s relationship with the children prior to the intervention of the society. There is no information about her understanding of the father’s drug use or if she ever took any steps to protect the children.
h) The maternal grandmother reported that the father took the children to the CNE over the summer and she had packed two bottles and food for M. But they were returned untouched. The father reported to the maternal grandmother that M. was not hungry. The father in his affidavit only responded to this allegation by stating the M. was fed. The maternal grandmother reported that she was concerned that M. was tired and out of sorts due to dehydration.
i) The maternal grandmother reported that A. told her “she had a secret” and said that the paternal grandmother had fallen down while holding M., causing M. to hit her head and cry. The father did not advise the maternal grandmother about this incident. When questioned, he stated that the paternal grandmother fell however she broke her fall and M. was not hurt. It never occurred to him that he should have told the maternal grandmother.
j) The maternal grandmother reported that on October 4, 2020, A. returned from a visit with the father with a serious cough and respiratory condition. The maternal grandmother had to take her to the hospital where she was diagnosed with Respiratory Syncytial Virus (RSV) and developing pneumonia. M. remained in the hospital for 4 days. The maternal grandmother stayed with her. The father attended once and the mother did not attend. The father does not explain why he did not notice this cough and seek medical attention. He only states that once he found out he took time off work to come to the hospital. This was a serious neglect of the health of A. There appears to have been no investigation by the society as to why the father did not arrange for medical care for A. or an exploration of his understanding of the care and attention that children need.
k) The maternal grandmother reported that the father and the paternal grandmother continue to smoke in the presence of the children. Again, there appears to be no follow up the society.
l) The father has not shown any financial responsibility and despite working is content to leave the financial burden of supporting the children to the maternal grandmother. If the maternal grandmother was in a financial situation to retain counsel it is clear that she would be advised to seek child support from the father.
m) The initial Notice of Motion by the society on June 23rd outlined various terms it was seeking regarding both parents. With respect to the father, he was to complete a program related to addictions, there is no evidence that he has done this. He was to refrain from the use of drugs while caring for the children, yet he has not provided any objective evidence that he has not been using drugs.
n) The children are closely bonded to the maternal grandmother given the role she has played in their lives. The children are happy, secure and settled. They are adjusted to their daycare and love attending. A. displayed anxiety through nail biting and constantly talking about the physical violence through hand gestures whenever she had a Facetime call with her parents and has now become calmer and content. There does not appear to be much thought by the society as to what risk of emotional harm there would be to both children if their current placement was disrupted at this time.
[120] The father currently resides in the Town of Simcoe in Norfolk County that is almost two and half hours away. The maternal grandmother was expecting the father to move back to Toronto so he could be more involved with the care of the children and spend more time with the children on the weekends.
[121] The father’s plan is unfortunate as it would require the children to be moved out of their current daycare and result in them losing the important presence of the maternal grandmother in their lives. It is unclear if the father can parent these children on a fulltime basis.
[122] If the mother wishes to have these children returned to her care, she will need to seriously explore programs to deal with her long standing drug addiction that may require residential treatment. She should ensure that she maintains contact and communication with the society worker.
[123] On any analysis of the evidence with respect to the two part test in section 94(2) of the CYFSA, there is no basis of removing these children from the care of the maternal grandmother.
5. Access
[124] The father is currently exercising access on alternate Saturdays from 9 am to Sundays 6 pm. and on alternate day visits on Sundays from 10 am to 5 pm. But these arrangements seem to have been made without the knowledge of the society and sometimes vary. There are also virtual calls daily.
[125] The mother is seeing the children about once a week in the community. But these arrangements seem to also vary from time to time.
[126] The society worker in her responding affidavit deposes that she is concerned with respect to the maternal grandmother’s ability to independently continue to facilitate and /or supervise the parents’ access on a long term basis based on her repeated concerns reported to the society as well as the impact on her stress level and anxiety.
[127] However, this is a temporary motion and the society is supposed to be supervising. One of their roles should be to assist the maternal grandmother in establishing a set schedule for both the parents’ access so that it is not her responsibility to arrange the access. Arguments have ensued between the maternal grandmother and both parents. Neither parent should be able to call the maternal grandmother and argue with her about their access arrangements or make arrangements directly with her.
[128] The maternal grandmother is reporting concerns that appear not to have been investigated by the society and it is understandable that this would cause her stress and anxiety.
[129] The society in consultation with the maternal grandmother should arrange a set schedule for both in person and virtual access. Both parents should understand that they are not free to renegotiate that schedule with the maternal grandmother.
[130] No submissions were made as to the terms of supervision or any expansion of the father’s access if he was not successful in having the children placed in his care.
6. Order
[131] There will be a temporary order as follows:
The Motion of the Respondent T.J.R. is dismissed.
The children A.R. born […], 2019 and M.R. born […] 2021 shall remain in the care and custody of the maternal grandmother C.S. subject to the supervision of the Children’s Aid Society of Toronto.
The terms of supervision as outlined in the Children’s Aid Society’s Notice of Motion dated June 23, 2022 shall continue until further court order.
The Children’s Aid Society shall meet with the parties to arrange a specific access schedule with respect to both in person and virtual access. If there is no agreement, the schedule shall be as agreed upon between the society and the maternal grandmother.
Pending such a meeting, the current access arrangements shall continue.
Released: November 29, 2022
Signed: Justice Roselyn Zisman