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 Information

Sault Ste. Marie Court File No.: 116/11 Date: 2013-07-08

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 Jennifer Mealey, for CAS Algoma

— And —

D.M. T. Frederick Baxter, for D.M. (mother)

J.B. J.B. (father) deceased

Heard: June 20, 2013

Before: Justice John Kukurin

Reasons for Decision

Introduction

[1] These are Reasons for my decision on the temporary care and custody variation motion (at Tab 10, Volume 4) brought by the respondent mother in this child protection case. The motion has three claims:

(a) for return of her three children A. (6), N. (5) and C. (1) to her temporary care and custody;

(b) alternatively, for expansion of maternal access; and

(c) for permission to relocate (with the children) to M[…] Island.

[2] At the outset, the mother's counsel indicated he would not argue the relocation claim but defer that to a later date. Moreover, the mother's claim for the return of her children was being limited to the two older ones, A. and N., for the time being.

[3] A. and N. were apprehended from the mother and the father on May 29, 2011, and they have remained continuously in foster care (with the same foster family, in fact) to date, a period of just over two years. A temporary care and custody order was made by me on November 2, 2011, after a hearing that started in August 2011. Reasons for that order set out the history of the family, the protection concerns at the time of apprehension, and why I ordered that the children remain in care.

[4] It would not be an exaggeration to say that the main protection concern, and the precipitating reason why the children were apprehended, was their father. In fact, I would have returned the two older children to the mother's temporary care and custody over two years ago if the parents would have lived separate and apart. They chose not to. Their two children consequently remained in society care. So also did the third child, C., when she was apprehended at birth.

[5] The father is no longer in the family picture and is no longer a factor in terms of representing a protection concern. He passed away in February 2013 from incurable esophageal cancer. He and the mother had remained together, and she was his main support person to the end.

[6] The mother's present motion was brought very shortly after the father's death. It is a motion brought pursuant to section 51(6) of the Child and Family Services Act. It seeks to vary the temporary care and custody order that was made by me in November 2011.

[7] Despite the fact that this case is now over two years old, there has been no finding made that the children are in need of protection. A motion for summary judgment for a finding and for an order for Crown wardship without access (the present position of the society) was brought a year ago. It was adjourned a number of times, and eventually was withdrawn after the father died.

The Law

[8] The law that relates to variation of temporary care and custody in child protection cases has developed through jurisprudence. The statutory provision [section 51(6) CFSA] is devoid of any guidance. Despite this, there is a judicial unanimity that the onus on a motion to vary a temporary care and custody order rests on the motion applicant. There is a further consensus that there is a threshold step for such applicant, namely to demonstrate that there has been a material change in circumstances since the existing temporary care and custody order was made. This prerequisite has been recognized for many years, and has appellate authority in the following words of Himel J.:

"The statute does not provide that the moving party on a variation motion must demonstrate a material change in circumstances. However, to give effect to the statutory scheme, and recognizing that stability and continuity for children is desirable, it is appropriate to impose a threshold test of material change in circumstances."

[9] There is, according to Graham J., a second stage of the test to be met by the variation applicant.

"The second … consideration of whether 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 a supervision order as well as a broad and discretionary assessment of best interests of the child."

[10] That the test at this second stage is simply "the best interests of the child" has been rejected explicitly by at least one jurist and by necessary implication by several others including myself.

[11] While the "best interests of the child" is a part of this second stage, it is not all of it. What else factors into this second stage?

[12] In a global context, Katarynych J. concluded:

"It is an exercise of the court's discretion dependent on a variety of factors, all of which must be brought to bear on the motion evidence to ascertain whether a variation of the "status quo" makes sense within the statutory scheme provided by Part III of the Act for child protection."

[13] Foremost among these other factors are the statutory directives found in section 1 of the Child and Family Services Act that pervade this entire statute. First among these is section 1(1) which is unequivocal.

1. Paramount purpose. – (1) The paramount purpose of this Act is to promote the best interests, protection and well being of children.

Thus, the promotion of the best interests of a child as a factor in deciding variations in temporary care and custody has a statutory foundation in this important subsection.

[14] However, promotion of best interests is not the only objective specified. On equal footing in the paramount purpose are the promotion of the protection of a child, and the promotion of the well-being of a child. There are no priorities specified among this trinity of objectives. Moreover, it should not be presumed that protection, well-being and best interests are invariably congruent. Circumstances of a case may sometimes make these competing objectives. Finally, the statutes spell out fairly exclusively in section 37(3), the circumstances the court must consider when dealing with "best interests". The Act is much less definitive in providing guidance as to circumstances relating to the promotion of "protection" of a child. As for "well-being", this is nowhere defined statutorily, and is about as wide (open) as to what can be considered for purposes of this objective in the paramount purpose.

[15] There are also "additional purposes" of the Act which the courts must consider, provided that they are consistent with the paramount purpose. Of these additional purposes, the two most often quoted are in clause (1) – support for the autonomy and integrity of the family, and in clause (2) – least disruptive course that is available and appropriate.

[16] It is not surprising that a step by step analysis would emerge in motions dealing with variations in temporary care and custody. This judicial pathway was elucidated by Spence J. and was set out very neatly by him in K.D., supra:

1. Has there been a material change since the making of the previous temporary order?

2. If so, is that material change risk-based? In other words, is it a change that makes it either more likely, or less likely, to affect the risk of harm to the child?

3. If the material change is risk-based, is it significant enough to vary the child's placement, having regard to the length of time that the status quo has been in place and how soon trial is likely to occur?

4. In considering step number 3, is the requested variation proportional to the change in circumstances, having regard to the court's mandate to be guided by the paramount purposes, as stated in subsections 1(1) and (2) of the Act?

Spence J. conceived this analysis to operate like a flow chart, namely, in sequential steps. A "no" answer to any of these four questions spells failure for the motion applicant seeking to vary temporary care and custody. Moreover, it did not matter, in Spence J.'s view, whether a finding had, or had not, been made at the time of the variation motion, that the child in question was a child in need of protection.

[17] Ultimately, just about any factual circumstance, provided that it has some relevancy to the change in the temporary care and custody sought, can be considered by the court. The decision to make the change sought (or to make some other change), or to maintain the existing order, is an exercise of judicial discretion. Katarynych J. summarized the basis for the making of such decision quite nicely when she stated that the judicial function was "to ascertain whether a variation of the status quo makes common sense within the statutory scheme provided by Part III of the Act for child protection".

[18] Implicit in any order for temporary care and custody is temporality. The fact that such orders are temporary is significant. Among the temporal factors are length of time that the status quo has existed (and why), the length of time before the case comes to trial, the length of time that the children have maintained contact with parents, and the point in time when the proposed change in temporary care and custody is to take place. There may be other temporally related considerations depending on the facts of a particular case. The court should remain cognizant of the overall context in which the variation claim is before the court. History of the parties, of the children, of the case itself may be significant factors that could be relevant to the motion.

Analysis

[19] Following Spence J.'s helpful steps, it is abundantly clear that a material change in circumstances has taken place since the current temporary care and custody order was made. This change was the death of the father in February 2013. However, that is not the only change that has taken place that is material. Life has not stood still for anyone, and not for the children in particular.

[20] The society's main source of protection concern was unquestionably the father. However, there were others that related not only to him, but also to the mother, and some to both of them. These were set out in my Reasons released in connection with the temporary care and custody order and I repeat them here:

• dental neglect for both children;
• insufficient food in the home;
• inappropriate discipline methods;
• marijuana use by both parents;
• the mother's suretyship for a close friend charged with offences under Controlled Drugs and Substances Act, S.C. 1996, c. 19, as amended, which including residency with the mother;
• the father's volatility, verbal aggression, loss of temper, lack of self-control, yelling and swearing, and his chronic use of coarse language;
• N.B.'s speech-language delays;
• N.B.'s seizures;
• lack of cooperation with the society.

[21] What can be said today about the foregoing concerns? Certainly the father's outrageous social behaviours are no longer a concern. And this was the main concern when the society intervened in this family. Included or related to the father's conduct, which have ceased to be concerns are his marijuana use, his relationship to the mother which involved much arguing, some degree of inter-spousal violence and damage done by him to family property, and his long term conflict involving his daughter Brianna (from a prior relationship) and her mother Julie. Elimination of the father as a continuing source of protection concern is an enormous change. However, there are residual effects of his role as a parent to the children A. and N., at least, that are difficult to quantify or qualify, but clearly persist. Specifically, there is the inter-spousal discord and violence witnessed by these children, the father's destruction of property (in particular a television set), and the bizarre interactions between the father and others (including being stabbed by his own sister). These are remembered by the children and by the mother, and the memories continue to affect their lives. And not in any beneficial way.

[22] The dental neglect has abated as a concern but has not disappeared. The mother was historically the partner most responsible for the healthcare of the children. Information from dental sources post-apprehension emphasized how severely the neglect of dental care affected the children A. and N. One can lump in with this, the medical neglect of N.'s infant immunizations. In summary, the mother performed very poorly in her responsibilities as a parent in addressing the healthcare needs of these two children. What assurances has she provided that history will not repeat itself if these children are returned to her care? In fact, hardly any at all, at least none discernable from her evidence, or from anything she has done in the past two years.

[23] Insufficiency of food in the home was a complaint of the society, with some credible evidence to support this as a protection concern. If this has changed, it is difficult to gauge. The children do not live in the mother's home so that her responsibility for their basic food needs is now limited to access visits. There is some anecdotal evidence that she is adequate in this area. What is of concern is the mother's financial resources on which her ability to provide for the nutritional needs of her children is directly dependent. She was reliant on the disability benefits of her now deceased partner. These benefits have ended. The evidence as to her financial self-sufficiency is very underdeveloped in the evidence. Child tax benefits is hardly an answer as she was receiving these when the children were still in her care and insufficiency of food was a factor in the family at that time. Moreover, it appears she may have to move as she cannot afford her present accommodations.

[24] Marijuana use by the mother has not disappeared. In fact, the uncontradicted evidence is that the mother has continued her use of marijuana to date, and appears to rely on it, perhaps even daily, to be able to sleep, to address depression, and simply to cope with daily living (which has not involved full-time parenting for over two years). Frankly, I am sceptical about any suggestion that her use of marijuana is restricted to medically related needs. She referred to her "smoking buddy" Chris, who appears to be her source of "weed". I simply cannot accept that her supply of this is gratis. The mother has not addressed this drug use with a view to discontinuing. She admitted to using within the last month, including using an "oil joint" each day. The inference I make from the evidence as a whole is that she intends to continue using cannabis substances even (or maybe even more so) if her children are returned.

[25] There were other concerns of two years ago that related to the children, specifically, their behaviour and their development. What has become very evident from the evidence filed in this proceeding over the past two years is that the concerns relating to the children, A. and N., are much more profound and much more concerning than they were then thought to be.

[26] N.'s speech/language delays were, in fact, verified by professionals after she entered the society's care. The mother had declined to access professional resources, despite being aware of N.'s developmental lags, believing it was premature to do so. In retrospect, she was wrong. She should have listened to society recommendations. Ultimately, N. underwent several assessments with Algoma Public Health, with a speech and language pathologist, with the Children's Rehabilitation Centre, with a physiotherapist and with an occupational therapist. The findings of all of these assessments were significant communication deficits that created difficulties in understanding, expression, language and socialization. In addition, N. lagged in gross and fine motor skills development. N. was diagnosed with a neurodevelopmental disorder, the etiology of which is not clearly established by the evidence. She has a genetic anomaly but has features that suggest her disorder is fetal alcohol related. In summary, the more comprehensive evidence available today identifies N. as a high needs child. Academically, she is identified as having exceptionalities requiring an individualized education plan with additional supports at school. N. needs a great deal of work in her home environment with a caregiver who understands her needs, who works cooperatively and closely with the professionals providing services to her, and who has the time and resources to implement the recommendations made by such professionals. N. craves consistency and does not do well with change.

[27] A. is a relatively healthy child. Apart from the serious dental problems that have since been attended to, there was only a need for prescription glasses. However, A. was, and still is, a high needs child whose behaviour is a challenge for anyone with whom she interacts. She is attention seeking and very self-centred. She is extremely aggressive and defiant, prone to lengthy and violent tantrum behaviours. She has threatened death to others and has destroyed furniture. She engages in pushing, shoving, hitting, biting, yelling and various other antisocial behaviours, often directed at her sister N., but some also towards adults. She is unpredictable, not very amenable to discipline or redirection, and often ignores boundaries and limitations imposed on her. She rants and raves and regularly displaces blame onto others, often lying when confronted by authority figures. Not surprisingly, A. had difficulties socializing with peers at school. Access visits with her mother have been difficult, sometimes chaotic. The mother has little or no control over A. who defies her, disobeys her and often, simply disregards her. In summary, A., at age six, is more than a handful for any childcare giver. She seems to be somewhat of a troublemaker and requires constant and competent supervision.

[28] It may be that the father's extreme behaviours simply eclipsed the parenting deficiencies and the needs of these two children when the family was still intact. With his disappearance from the family dynamics, with the lengthy period of upbringing of these children in a foster care setting, and with an equally lengthy period of observation of the mother's interaction with these children (and with the youngest child C.) at access visits, a much clearer picture emerges of what this family is all about.

[29] Much of what is known about the mother has surfaced in the past two years. She admitted to significant drug use in her youth. Her current drug use appears to be limited to cannabis, but there is no corroboration that this is so. She claims to use cannabis, but way of self-medication, as a method to cope with stresses in her life. She has had plenty of opportunity to quit and has done nothing to do so, on her own, or to get help to do so.

[30] The mother has physical and mental problems of her own. These range from aches and pains to migraines, gastrointestinal issues, depression, and hangovers on occasions. Often her own medical or emotional issues have curtailed access visits, or resulted in their cancellation entirely. The mother seems to be sick a lot.

[31] The mother's access has been far from exemplary. At one point, she was missing a third of her scheduled visits. In the current, following the death of the father, her access was expanded in frequency and duration, and has included all three children. The results have not been positive. As noted, A. is often uncontrollable. N. appears to be picking up A.'s behaviours. The mother can hardly cope with C., and also supervise the older two. The mother has not infrequently ended her access visits early, showing signs of fatigue and frustration. She has been observed speaking on her cell phone during access visits, and having difficulties focusing on the visit itself.

[32] The mother has had three children taken away from her. That the focus of her attention was on her partner during his prolonged illness is understandable. The children were, after all, in good hands, and one's life partner dies only once in a lifetime. Perhaps she should be commended for her loyalty to him. However, she recognized, by her own admission in her evidence, that "it wasn't all J.B.". She was referred by society workers to do certain things, and to avail herself of certain resources long before the father became ill, and this continued throughout the two years the children have been in care. Of the many recommendations made by the society, the mother followed up on only one – Anger Solutions – an anger management program in which she missed three sessions and was not assessed as being a good participant when she did attend. The mother verbally acknowledged the desirability of community programs to help her with many areas in her life: drug use, mental health (counselling), domestic violence, housing, and most importantly, parenting. She completely none of these satisfactorily. She didn't even start most of them.

[33] "Status quo" is an inevitable consideration in variation of temporary care and custody. It is the status quo of the child that is the critical component of this consideration. Following an apprehension and at the initial temporary care and custody hearing, status quo is rightfully considered to reflect the intact family prior to society intervention. However, that status quo changes if the child is not returned to the family at the temporary care and custody hearing. A new status quo is created, and the longer that status quo persists, the more entrenched it becomes.

[34] The status quo in this case at the time this variation motion was heard included the children residing in foster care, not in the care of their mother. It is the mother who wishes to now change the status quo. In considering continuity in the care of these children, and the possible effects on them of a disruption of that continuity, the court must start with this well established status quo. Also, continuity of care and disruption of it is more pronounced a factor when it is considered in the context of a temporary order.

[35] In the present case, there is a two year continuous period of care by the same foster parent in the same home for both children together. This care has, by all accounts, been excellent care, much superior to the care that these children had while in the care of their biological family. N. is a child who craves consistency and routine and does not readily accept change. A.'s behaviour in the care of her mother, even for limited periods during access visits, is atrocious, and sets a poor example for N. The mother can barely cope with these children for the length of an access visit, at times, leaving one or both of them without supervision. I cannot visualize anything but unnecessary and undesirable disruptions if these two children were to be returned to their mother at this point in time. She is clearly not ready to manage them. She has not at all persuaded me that the status quo demands the change that she is seeking.

[36] In summary, the mother's claim to vary temporary care and custody in her favour fails. Although she can demonstrate that there has been a material change in circumstances, and that this change unquestionably reduces the risk of harm to these two children, she cannot persuade the court that the change sought by her is in the best interests of the children, or that it promotes the wellbeing of either of them. In fact, there are still protection concerns that have not dissipated with the father's death which relates specifically to the mother. If, as Graham J. asserts, the two part test in section 51(3) is to be applied in this variation motion, I would find that reasonable grounds exist to believe that there would be a risk that both A. and N. are likely to suffer harm if returned to their mother's care at this time. I do not believe I could create a supervision order, with associated conditions, that would adequately protect these children in their mother's care. An order cannot overcome deficiencies in supervision, child behaviour management and basic parenting. I would have little confidence, for example, that a court imposed prohibition would result in this mother's abstention from cannabis substances.

[37] Finally, there is the absence of common sense to what the mother is seeking. A trial management conference was held in this case in March 2012, well over a year ago. A summary judgment motion was then brought essentially suspending the movement of this case forward to trial. That summary judgment motion solved nothing and created a one year delay in the progress of this case. There is no impediment at this time to moving on to trial. Why would this court change the placement of these children now when the final determination after trial might involve yet another move?

Maternal Access Variation

[38] There is an existing order for maternal access made November 16, 2011. The mother's alternative claim in the present motion is for variation of the present interim access order. She wishes her access to A. and N. expanded to include overnight visits. The present access visits appear to be Wednesdays after school until 7 p.m., Thursdays after school until 7 p.m., and Sundays from 10 a.m. to 7 p.m., some or all of which visits include the child C.

[39] Changes in access, including interim access, are governed by section 58 of the Act. However, the statutory test for change is the best interests of the child. An access order was made in November 2011, after a contested hearing. That order was made in the best interests of these two children. The onus is on the mother to persuade this court that the change in the access order sought by her now meets this test based on the current evidence.

[40] She fails to meet that onus. Firstly, the removal of the father as a factor in this case does not result in an automatic change in maternal access. Secondly, the evidence of the society persuades me that this mother can barely cope with the nine hour daytime visits she currently has on Sundays. Thirdly, the mother has presented virtually no evidence that contradicts the society's allegations relating to her present access. Fourthly, the mother's plan for overnight access lacks any detail and does address concerns that relate to housing, financial security, alternate care during the mother's periods of inability to care, ongoing use of cannabis substances, and maternal commitment to cooperation with community agencies and professionals providing services to the children. Finally, the mother has no evidence to dispute the society's allegations that she lacks the parenting skills necessary for having the children overnight, most critical of which would be discipline, supervision and control.

[41] Accordingly, this alternative claim fails as well. The mother has access visits that are relatively generous in terms of times, regularity, frequency, duration and location. She is not always faithful to attend. She cancels, sometimes for questionable reasons. At times, she is a no-show (i.e. gives no notice of intended non-attendance). Even when access visits have taken place, she has ended them earlier than scheduled. She is not taking full advantage of what is already available to her.

Released: July 8, 2013

Justice John Kukurin, Ontario Court of Justice