WARNING

The court hearing this matter directs that the following notice should be attached to the file:

This is a case under Part III of the Child and Family Services Act and is subject to subsections 45(8) of the Act. This subsection and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply with subsection 45(8), read as follows:

45.— (8) 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.

85.— (3) A person who contravenes subsection 45(8) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Court File and Parties

Court File No.: 195/10 Date: 2012-05-04 Sault Ste. Marie Ontario Court of Justice

In the Matter of the Child and Family Services Act, R.S.O. 1990, c. C.11

Between:

Children's Aid Society of Algoma John Rossi, for the CAS

— And —

A.B. Eric McCooeye, for A.B. (mother)

S.C. Frederick Baxter, for S.C. (father)

Heard: January 25, 2012

Decision

Justice John Kukurin

Introduction

[1] This is a decision on the motion (at Tab 5 Volume 2) of the respondent mother in this status review case. She asks for:

(a) an order placing the child K. (age two) in her care and custody, and

(b) in the alternative, an order specifying the details of her access (frequency, duration, location and level of supervision).

[2] The society opposes the mother's claims. So also does the respondent father, although not as strenuously.

Background

[3] The mother's first child, a daughter, is now age 12. The society was involved with the mother and the father of this child for several years over issues of the mother's instability, volatile temperament, drug use, associations with inappropriate persons, and domestic violence involving the father of that child. Ultimately, that child's father obtained a sole custody order when the child was four or five years old. The child is still in his custody.

[4] Sometime in 2009, the mother moved to Calgary "in an attempt to start over". She met the father S.. K. was born to them in 2010. However, the relationship between the mother, A., and the father, S., was far from idyllic. The Calgary equivalent of the Children's Aid Society became involved over protection concerns, to the point that it obtained an apprehension warrant for K.

[5] The mother fled with the child to Ontario before the warrant could be executed. The Algoma society, alerted by the Calgary society, became involved. It did not apprehend K. at first. The mother and child were living with S.'s mother, the child's paternal grandmother, R., a seemingly suitable arrangement. However, within a month, the mother and child left and moved into a woman's shelter. They were there about a week, when the mother was asked to leave because she was not following the rules of the facility. Thereafter, she stayed temporarily with friends and was eventually located by the society at the home of a distant cousin of whom the society disapproved because of his criminality and drug use. It apprehended K. and started a child protection application. This was at the end of September 2010. K. was then six months old.

[6] The society's child protection application resulted in a finding that K. was a child in need of protection under risk of physical harm grounds. The mother consented to an order of society wardship for six months. This order was made near the end of March 2011. The father S. had remained in Calgary. He did not file an Answer or participate in that case.

[7] The society commenced the present status review application, as it is statutorily required to do, in September 2011, prior to the expiry of the six month wardship order. In this status review, its claim is for Crown wardship with no access to either mother or father. It wishes to have K. adopted. K. has been in the society's care, in a foster home, for over 18 months continuously to date. Under the Child and Family Services Act (CFSA), the statute which governs child protection cases, the court is precluded from making any further temporary orders that keep K. in the care and custody of the society. The choices are now Crown wardship, or placing the child with the mother, or the father, or some other person subject to a supervision order.

[8] It is in the context of this status review case that the mother has brought her motion (at Tab 5, Volume 2).

[9] The status quo is that the society's wardship order gives it care and custody of the child K.. This has continued to be extended by the court while the status review case has been ongoing. The mother now seeks to change this status quo. She wants K. returned to her care and custody.

[10] The mother has been exercising access by visits with K. since he was apprehended. The details of her access has varied over the past one and one-half years with changes more or less dictated by the society, depending on changes in circumstances from time to time. If K. is not returned to her, the mother is asking the court to change the existing access order pending the finalization of this case by making her access more specific.

The Law

[11] Section 64 of the CFSA is a provision for the status review in this case.

[12] Because this case is a status review case, there must necessarily be a "status". That status is the status of the child. "Status" in the context of a "status review" means the status of the child that was established by the final order made in the immediately prior proceeding involving the child. Moreover, such prior final orders can only be those made under section 57(1) of the CFSA statute, namely, orders for temporary society wardship, or for society supervision.

[13] There is no statutory definition for the word "status". The existing status of a child under one of these prior child protection orders is a combination of the provisions for placement, and the provisions that apply to such placement. In the case of a supervision order, for example, a review of the "status" of the child could result in the continuation of, or a change to, either or both of the child's placement or the supervision order terms and conditions that apply to that placement.

[14] Status review does not extend to the review of any access order relating to the child that may have been made contemporaneously with the order that established the child's status (or made subsequently). Access is not status. Section 64 CFSA does not require a society to bring an application for a review of any person's access to a child. In some cases, changes to access orders may be desirable, particularly if there is to be a change in the child's status. In such cases, any order that changes access is made under section 58 CFSA, not under section 64. This applies equally if the change in access takes place while the status review case is ongoing. In other words, if a claim is made for an interim variation of a prior (final) access order pending a final resolution in the case.

[15] The specific provision of the CFSA statute that deals with interim care and custody until a status review case is completed is section 64(8).

S. 64(8) Interim care and custody - If an application is made under this section, the child shall remain in the care and custody of the person or society having charge of the child until the application is disposed of, unless the court is satisfied that the child's best interests require a change in the child's care and custody.

[16] This subsection establishes a presumption or, at the very least, a legal bias in favour of maintaining the placement of the child with the person having charge of the child, until a final disposition in the status review application. However, the continuation of this placement is not written in stone. The status quo can be changed by the court, on an interim basis, but only if the court is satisfied that the child's best interests require change.

[17] I have, in other cases, set out my views on what section 64(8) CFSA means in practical terms. Some judicial difference of opinion exists with respect to that meaning. A succinct but comprehensive elucidation of what section 64(8) means can be found in a recent decision of Murray J.:

In my view, on such motions, the moving party must first establish that there has been a material change in circumstances related to the child's best interests. If there has been such a change, then it must be demonstrated that it is necessary, in protecting the child's best interests, to change the existing order before trial of the status review application. The Act sets out certain factors, in addition to continuity of care, which may be relevant in assessing a child's best interests.

[18] Murray J.'s words "... it must be demonstrated ..." relate to the statutory words in section 64(8) "... unless the court is satisfied that ..." Because of the presumption (or bias) in favour of maintaining the status quo with respect to the placement of the child, the onus clearly falls on the motion applicant seeking to change the status quo on an interim basis. That onus is to satisfy the court that the best interests of the child require a change in the child's care and custody. That onus is to be discharged on the basis of admissible evidence presented to the court. The evidentiary rules that pertain to such evidence are those found in the CFSA that are applicable, as well as those found in the Family Law Rules that are applicable. Because this is a civil proceeding, the standard of proof required of the person seeking an interim change is the usual civil standard, namely, proof on the balance of probabilities.

[19] Some things are so apparent that they are sometimes overlooked. In motions that involve section 64(8) CFSA, it is the best interests of the child that must be shown to require an interim change to the child's existing care and custody. Accordingly, the judicial expectation of the parties is that their evidence will be related to the best interests of the child. That is the criterion set by the statute. The same statute lists a number of circumstances that the court must consider, to the extent that they may apply in a particular case, in relation to best interests.

[20] Finally, variations in access are also based on best interests of a child. In the framework of a status review case, however, there is no express statutory presumption in favour of maintaining the provisions in the current access order. There is, however, a judicial acknowledgement that the existing access order was in the best interests of the child when it was made. Accordingly, the onus is on the applicant seeking to change the access provisions to show, again with admissible evidence, and on the balance of probabilities, that some material changes in circumstances have taken place such that the access changes sought are now in the child's best interest.

The Evidence

[21] The mother has not satisfied the evidentiary burden in her motion with respect to her claim for care and custody to be transferred to her. By far, the majority of her evidence has been a response (or perhaps a defence) to the allegations of the society with respect to:

(a) historical events in her life before K. was even born;

(b) what had happened between K.'s birth and his apprehension;

(c) her criticisms of the society and its child protection workers;

(d) community agencies, services and programs that the mother may or may not have accessed, and the details thereof; and

(e) her use of drugs and what she has done about this.

[22] While some of this evidence may have some peripheral relevance to K. and to his best interests, the mother says surprisingly little from which the court can conclude that there has been any changes in circumstances that bear directly on K. or on those circumstances that are required to be considered in the context of his best interests. The main evidence of any consequence is related to her access visits, her parenting of K. during these visits, and what they do during such visits. She provides some information about her plan to care for him if he is returned to her care.

[23] Unfortunately, the totality of what she states, even if it is all accepted as true and accurate, does not satisfy the test in section 64(8) CFSA for changing care and custody of K. on an interim basis.

[24] The evidence with respect to K. is that he has been in the same foster home since apprehension. That is over 18 months. He is only two years old. The evidence indicates that he is thriving in his foster home placement. Continuity of care is a mandatory consideration in the best interest test. This consideration is, in my view, accorded heightened importance in the context of a section 64(8) CFSA claim for change in the care and custody on an interim basis. My inference is that a move of residence and change in primary caregiver to his mother would be disruptive for him.

[25] K.'s mother does not have a home for him, nor does she have the financial means to provide for him. She does not have alternate childcare providers in place, or even identified. These are elements of her plan that she says she will take care of in the future – if K. is returned to her.

[26] The question of whether the mother uses illegal drugs is still a major issue. She says she doesn't. If there had been no evidence of prior drug use, perhaps this would be enough to put this issue to rest. However, there is evidence of prior drug use. She candidly admitted using marijuana sporadically although she does not see this usage as a problem. In April 2011, she acknowledged that she had used Percocet, Oxycontin, ecstasy, cocaine, fluxeril and clonazepam, none of which had been medically prescribed for her. A June 2011 hair follicle test covering the months of March, April and May 2011 confirmed that she was an active cocaine user. Since that test, she has not undergone any further testing despite tests by the society for her to do so.

[27] The mother has been unimpressive in dealing with the drug issue. She was less than diligent in completing an assessment with the Community Alcohol and Drug Program (CADAP). She only recently started going to AA meeting even though her problem is not so much with alcohol as it is with drugs. She apparently underwent a Suboxone treatment regime which I can only infer was to treat a drug addiction. But she has no details of this regime, little information about medical prescription or follow-up; nothing about the results. The mother was on the brink of being discharged from services with CADAP in late October 2011 because of missed appointments. In short, drug use was a problem for this mother and the evidence is far from satisfactory that this is no longer a problem from a child protection point of view.

[28] The mother concedes that if K. is returned to her, it will be questionably be subject to a society supervision order. The evidence of both the mother and of the society confirms that their relationship will in all likelihood be fraught with problems. The mother's complaints involve allegations of little, if any, society support or assistance, misrepresentations by her worker, often no response to her messages requesting return contact. Eventually, the society assigned a new worker. On the society's part, it alleges that the mother's cooperation with the society was dismal. She was difficult to contact either by telephone or by other means. She often cancelled meetings or was simply a no show. Her attitude was atrocious, characterized by yelling, belligerence and swearing. At one point, she made a society worker wait outside her door for 20 minutes. Regardless of the allocation of fault, it is clear that a supervision order will be difficult to carry out. Why would a court place a young child in a situation that will have so much conflict?

[29] There are other areas where the evidence is not favourable to the mother in the role of primary caregiver and custodian at the present time. Her personal health, apart from illegal drug use, raises concerns. She had consulted a physician but the last consultation was in September 2011. At that time, she received prescriptions for anxiety and mild depression. As for her mental health, the most recent information is that she is wait listed for seeing a psychologist for an assessment through the Metis Centre. She has been recommended to an anger solutions group that has not yet even started with this program.

[30] The mother ostensibly returned to Ontario where she claims to have had a support group. However there is little evidence of this. She got into trouble with the criminal law for associating with persons with whom she ought not have been associating. Although the bulk of the charges against her have been withdrawn, she still faces one or two of the less serious criminal charges. She is free on bail release but must reside with her mother who is her surety. Her mother's home is too small to accommodate the child. Her mother (the maternal grandmother) was assessed by the society and rejected as a kin placement. The mother proposed another kin placement, but this person later withdrew. For quite some time, the father was, according to the mother, supportive of her. However, that no longer is the case. He is opposing placement with the mother and advocating placement with his mother (the paternal grandmother), and eventually with himself (and his new girlfriend). The paternal grandmother had been supportive of the mother, but has recently come forward as a prospective kin placement for K., thus pitting herself against the mother. The mother's supports have turned out to be somewhat illusory.

[31] From the point of view of the child, the mother does not appear to represent that significant a person in his life. He was just six months old when he was removed from her care. His life with his mother was marked with domestic discord in Calgary, an impulsive cross Canada flight from child welfare authorities, and several changes of residence in a short time in Sault Ste. Marie. In short, instability. There is no reliable evidence that K. has ever attached to his mother. Her relationship with K. is now, and has been for a year and a half, that of an access parent. For a number of months, she was less than faithful in her attendance for access, at one point, leading to a reduction in frequency to once per week. Although the maternal access visits are appropriate, with the mother showing affection and nurturing, the court has to reflect on whether the child's emotional ties are primarily with the mother or elsewhere.

[32] In summary, there is nothing that persuades me to order that K. be placed in his mother's care and custody while the status review case is ongoing. I do not doubt that the mother may have taken some positive steps to lessen the protection concerns that led to the removal of K. from her care. Her evidence falls short, in quality, as well as in content, from satisfying her onus to show that K.'s best interest require a change from his present placement. Her claim for interim care and custody is dismissed.

Maternal Access

[33] The existing maternal access order was made at the same time as was the six month wardship order. The court record indicates that the mother consented to that access order.

[34] The access provisions are somewhat generic but give the mother reasonable access on reasonable notice to the society. Such access is to be arranged with the society, to be exercised at a location approved by the society and to be supervised if the society so decides in its discretion, and, if so, it is to be by a person approved by the society. In addition, the access order contains a number of other terms and conditions that mainly require the mother to do or not do certain things.

[35] This access order was made pursuant to section 58(1) CFSA. This is the only subsection in Part III of the CFSA that authorizes the making of any access order. This same subsection authorizes the child protection court to vary, or to terminate, an existing access order, and to impose on an access order such terms and conditions as the court considers appropriate.

[36] As to when a court may do so, subsection 58(1) is very clear. It may do so,

(a) when making an order under Part III, or

(b) upon an application made under section 58(2).

Section 58(2)(b) permits "any person", other than the child or the society, to make such application.

[37] The society argues that there is nothing in section 58 that authorizes the court to vary, on an interim basis, a final order for access. I take this argument to suggest that I do not have the authority to make the order that the mother is seeking in her motion with respect to maternal access. The society maintains that the authority to vary an existing access order is limited to doing so by way of a final variation order only.

[38] I cannot agree with this interpretation. Section 58(1) clearly gives the court the power to vary an order respecting a person's access. To use, and reverse, the argument of the society, there is nothing in section 58 that precludes the court from doing so on an interim basis. Moreover, there is nothing in section 58 that restricts the court in doing so only on a final basis.

[39] Subsection 58(1) permits the court to make a variation order in either of two situations. The first is when it makes an order under Part III of the CFSA.

[40] There are myriad orders that the court can make under Part III CFSA. Many of these may be made while a proceeding is ongoing. On occasion, circumstances change such that the terms of an existing final access order make the continuation of that order until the status review case is finally resolved unreasonable, or unrealistic, or unworkable, or inappropriate. There may well be a need for an interim variation simply to protect the child. The alternative is to allow the existing, now inappropriate access order, to remain in force but to ignore it, or to continue to implement it. Neither is a reasonable option.

[41] In the context of a status review case, especially where a child's status is changed on an interim basis, there may well be need for corresponding changes relating to access to the child. These could entail the making of a new access order for a person who lost care and custody, or the termination of an access order for someone who acquired care and custody. It could mean changes to the access of other persons whose access might otherwise be frustrated, or made very difficult to exercise.

[42] The second situation where the court is permitted to vary an access order is upon an application being made under section 58(2). In this case, the mother has made such application. It is her claim in paragraph (2) of her motion at Tab 5, Volume 2.

[43] The society's argument suggests that if a claim is made for an interim access variation, the court can only make an order that is a final order. It makes no logical sense to make a final access order part way through a status review case when the more critical status of the child (and placement) are still undetermined.

[44] I reject this argument of the society. I conclude that this court can entertain the mother's claim for an interim variation of the existing maternal access order dated March 23, 2011.

[45] That does not necessarily mean that an interim variation order will be made. As indicated previously, the existing order represents what was in the best interests of the child K. on March 23, 2011 when it was made. Judicially speaking, that remains the case unless and until the court is satisfied by admissible evidence, on the balance of probabilities, that something has changed since the order was made, and that the change results in the existing access order terms no longer being in the child's best interest. The onus of showing this is on the person seeking the interim change – in this case, the mother.

[46] I might add that there is another dimension to the onus on the mother. This relates to the "interim" nature of the change in access she seeks. In my view, the case for an interim change must be shown to be more compelling from a best interests of the child point of view than for a final change. This is more difficult to do for the "interim" access variation applicant, in a typical case, because this kind of change is usually sought by motion. In a motion, affidavit evidence is almost invariably what the court has as the evidence. When the evidence is contradicted, it is often difficult to decide who is more credible. If such determination cannot be made, the motion applicant is the loser on the question in dispute because it is he or she that has the onus.

[47] In this case, the mother's motion asks the court to specify the frequency, duration, location and whether her access is to be supervised, and, if so, to what level of supervision.

[48] The mother's argument is essentially that it is agreed (consensus) that she has made many improvements and these do not warrant (contraindicate) the kind of access she is presently getting. She questions why supervision of access should continue. She asks the court to apply the maximum contact principle to justify the maximum maternal access that is consistent with the safety of the child.

[49] The mother asks that her access be daily. She wishes her daily access to be for six to eight hours per day and to include times during which such hands-on childcare activities as feeding, diapering, napping, etcetera, normally take place. She requests her access take place at her mother's home and asks the court to assume it is suitable in absence of evidence that the society has inspected it and found it unsuitable. As for supervision of her access, she does not say but hints that it is no longer necessary.

[50] The problem with the mother's motion claim is that the only evidence that she cites in support of this claim for interim variation of her access order is the somewhat general reference to the many improvements she has made. In fact, there is no consensus on this. The society certainly does not concede that she has done so. Its evidence is contradictory and, quite frankly, more detailed, albeit not always firsthand.

[51] If these "many improvements" that she has made represents the change in circumstances she relies on for the court order she is seeking, she is not going to be successful. In addition to the fact that these are not sufficiently proven, there is the more important deficiency, namely, that these have not been connected to how the best interests of the child are no longer served by her existing access order, and why the order she is requesting aligns much better with the child's best interests.

[52] Her motion at Tab 5 was filed September 23, 2011. She did not file any evidence in support of that motion as required by Rule 14(9)(a). It was not until December 15, 2011, almost three months, that she filed any actual evidence (at Tabs 11, 12, 13 and 14) and a later updating affidavit on January 24, 2012 (at Tab 21). A review of these five affidavits discloses very little with respect to the child K., and very little with respect to best interests considerations in the context of changes to maternal access.

[53] In summary, the mother's claim for interim variation of maternal access fails. This is not because the court is unsympathetic to her request for more frequent, longer access that she can exercise in a family home environment. It is more because she has not produced the quality and quantity of evidence that this court requires to be satisfied that the child's best interests require not only changes to maternal access, but those changes for which she is asking.

Released: May 4, 2012

Justice John Kukurin, Ontario Court of Justice