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 one or more of subsections 45(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:
45.— (7) Order excluding media representatives or prohibiting publication.
The court may make an order:
(c) prohibiting the publication of a report of the hearing or a specified part of the hearing,
where the court is of the opinion that publication of the report 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.
(8) Prohibition: 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) Idem: order re adult.
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.
85.— (3) Idem.
A person who contravenes subsection 45(8) or 76(11) (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
Court File No.: C61569/13
Date: 2014-02-06
Ontario Court of Justice
Toronto North Family Court
Parties
Between:
Catholic Children's Aid Society of Toronto
Chris Andrikakis, for the Applicant
Applicant
- and -
W.I. and D.T.
David Miller, for the Respondent, W.I.
Respondents
Devinder Bath, for the Respondent, D.T.
Eric Del Junco, for the Office of the Children's Lawyer, for the children
Heard: February 4, 2014
Justice: S.B. Sherr
Endorsement
Part One - Introduction
[1] The Catholic Children's Aid Society of Toronto (the society) and W.I. (the mother) seek an order that the subject children of this protection application, D., age 9, and B., age 6, (the children) be placed in the temporary care and custody of the mother, subject to society supervision.
[2] D.T. (the father), seeks an order that the children remain in his temporary care and custody subject to society supervision. The children have been in his care since June 24, 2013 as a result of the mother suffering a mental breakdown a day earlier. On August 29, 2013, a without prejudice order was made placing the children in his temporary care and custody, with specified access to the mother on Saturdays from 10 a.m. to 8 p.m. This order remains in place.
[3] Counsel for the children advised the court that D. expressed no preference about which parent he wished to live with. B. has clearly expressed that she wishes to live with her mother.
Part Two – Background Facts
[4] The mother and father cohabited from 2004 to 2009. The parties agree that the children lived with the mother from about June of 2011 until June 23, 2013 (they disagree on the parenting arrangements between 2009 and 2011). The father had frequent access to the children. He says that it took place each weekend. The mother claims it took place on alternate weekends.
[5] The society had four prior openings with this family. These openings had to do with allegations of domestic disputes, lack of parenting skills, transience and illegal drug usage.
[6] The society was contacted on June 23, 2013. The mother's partner (T.A.) had been charged with assaulting the mother. The mother had suffered a severe mental health breakdown and was taken to the hospital pursuant to the Mental Health Act.
[7] The children reported to the police that they had witnessed that day a brutal assault by T.A. on the mother. The police reported that when they arrived, the mother was intoxicated and had been beaten up badly. The hospital reported that the mother had bleeding on the brain.
[8] D. reported to the police that the mother attempted to set the family trailer on fire and then went down to the lake. The mother told the police that she was going to walk into the lake. The police took the mother to the hospital.
[9] The mother filed a psychiatric report from Dr. Pracha Vatsya. The mother told Dr. Vatsya that she had "blacked out" during the incident on June 23, 2013. She said that she had been told that she had kicked in the trailer windows, smashed her car, tried to run over her partner with her car, chased him with scissors and tried to light the trailer on fire. The mother also described two other incidents where she blacked out when she experienced extreme anger and acted violently. She was not hospitalized for those incidents.
[10] Dr. Vatsya has diagnosed the mother with:
a) Persistent Depressive Disorder
b) Generalized Anxiety Disorder
c) Symptoms of Post-Traumatic Stress Disorder without meeting the full criteria – with disassociation.
[11] Dr. Vatsya made several treatment recommendations for the mother. She has been proactive in following up on these recommendations.
[12] Although not set out in the material filed, the society and the mother both agreed at the hearing of this motion that the society advised the mother on June 24, 2013 that she either had to let the children remain with the father or else they would intervene and seek an immediate court order. The mother was also told that the society would bring the matter to court shortly for a supervision order.
[13] Counsel for the society acknowledged that the society delayed in bringing the protection application. The protection application was issued on August 29, 2013 and the society obtained the temporary without prejudice order set out above. The case was adjourned for the parents to obtain counsel.
[14] The temporary care and custody hearing was adjourned three more times for reasons that will be discussed below.
[15] Conditions deteriorated in the father's home starting in the fall of 2013. The children's attendance and performance at school declined. The father had conflict with his landlord and did not have appropriate accommodation for the children. Concerns arose about the children having inadequate food and supplies in the father's home. The children made allegations of inappropriate physical discipline by the father.
[16] The father suffered health problems in December of 2013 and he placed the children with the mother for three weeks.
[17] The mother has made positive gains in her mental health since the summer of 2013. She attended several treatment programs, was working well with doctors and social workers and following treatment recommendations. She was medication-compliant and her mental health was stable. She was not having any contact with T.A.
[18] The children returned to live with the father after the January 2, 2014 court date and are seeing the mother every weekend. Her access to the children is going well.
[19] The mother has a daughter from another relationship living with her as well as T.A.'s son. Both are 15 years old. They have remained in the mother's care and are well cared for.
[20] The temporary care motion was argued on February 4, 2014.
Part Three – Legal Considerations
3.1 Is this an originating temporary care and custody motion or a motion to change?
[21] The society submitted that due to the lapse of time, the without prejudice order should be treated as a with prejudice order. The society submitted that this hearing should be treated as a motion to change an existing order under subsection 51(6) of the Child and Family Services Act (the Act) and not as an originating temporary care and custody hearing under subsection 51(2) of the Act.
[22] Both W.I. and D.T. submitted that this was an originating temporary care and custody motion under subsection 51(2) of the Act.
[23] The distinction is important because different legal tests apply to the two types of motions.
[24] Some courts have commented that without prejudice orders do not continue indefinitely. In Children's Aid Society of Toronto v. K.N., 2008 ONCJ 340, Justice Brian Weagant wrote at paragraph 14:
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.
[25] Although Justice Weagant found it unnecessary to apply his reasoning in the case before him, he implied that three to six months might be sufficient to displace legal charge of the child from the mother to the society. This decision was followed in Children's Aid Society of Ottawa v. J.M., 2010 ONSC 7119, where the court considered the lapse of 8 months from the date of the without prejudice order to be a relevant factor in assessing placement.
[26] The facts of each case need to be carefully examined to determine if the "shelf life" of a without prejudice order has run out. Such a determination has significant ramifications for child protection litigants. The test in subsection 51(2) is designed to set up a rigorous standard for society intervention in the life of a person who has charge of a child. Once this test has been met, and an order placing the child elsewhere has been made, the onus shifts to that person to show, in a subsequent motion brought pursuant to subsection 51(6) of the Act, to demonstrate a sufficient change in circumstances that justifies returning a child to his or her care. The court does not and should not lightly eliminate the subsection 51(2) rights of the person who had charge of the child.
[27] The court agrees with the parents that it is appropriate to treat this as an originating temporary care and custody hearing. The first court appearance on August 29, 2013 was adjourned on consent in order for the parents to obtain counsel and respond to the protection application. Such adjournments are routine in these matters and the length of the adjournment reflected the time that is often required for counsel to be retained, to obtain full file disclosure from the society and prepare the presentation of the temporary care and custody motion. The hearing was next adjourned on October 24, 2013 as the father had not yet filed an Answer/Plan of Care and the mother had not yet filed responding materials. A case conference was held and timelines were set for the filing of material for the motion. The parties agreed on a return date of January 2, 2014. The intention of all parties was to hold the temporary care and custody hearing on that date. At the time, the society was seeking placement of the children with the father.
[28] All parties sought the adjournment on January 2, 2014 due to the significant change of circumstances (the children had been living with the mother). The parties, including the society, wished to reassess their position. The case was adjourned until January 20, 2014.
[29] The parties agreed to adjourn the January 20, 2014 hearing until February 4, 2014 in order for counsel for the children to prepare for the motion and for the society to investigate another protection concern (the father had allegedly slapped D. in the face). By this point, the society had shifted their position and was supporting placement of the children with the mother.
[30] At no point did the mother waive her right to a temporary care and custody hearing and the rights afforded to her under subsection 51(2) of the Act. The parties consented, for good reasons, to the adjournments and were aware that the mother planned to argue the temporary care and custody motion. There is no evidence that she delayed the matter from being heard. The without prejudice nature of the existing order had not lapsed.
3.2 Legal Considerations on a Temporary Care and Custody Motion
[31] The legal test for me to apply on this motion is set out in subsections 51(2), (3), (3.1) and (3.2) of the Act which read as follows:
Custody during adjournment
51(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,
(i) a place of secure custody as defined in Part IV (Youth Justice), or
(ii) a place of open temporary detention as defined in that Part that has not been designated as a place of safety.
Criteria
(3) 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.
(3.1) 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
(3.2) 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.
[32] At a temporary care and custody hearing, the onus is on the society to establish, on credible and trustworthy evidence, that there are reasonable grounds to believe that there is a real possibility that if a child is returned to the respondents, it is more probable than not that he or she will suffer harm. Further, the onus is on the society to establish that the child cannot be adequately protected by terms of conditions of an interim supervision order. See: Children's Aid Society of Ottawa-Carleton v. T.. Simply stated, this is a two-part test (the two-part test) that the society has to meet.
[33] A court must choose the order that is the least disruptive placement consistent with adequate protection of the child (subsection 1(2) of the Act): See: Children's Aid Society of Hamilton v. B.D. and F.T.M., 2012 ONSC 2448.
[34] Subsection 51(3.2) applies to an order being made in accordance with clause 51(2)(b) for a temporary supervision order. See: Catholic Children's Aid Society of Hamilton v. P. (C.R.), 2011 ONSC 2056.
[35] The onus of proof or criteria are the same when the society is requesting a non-removal order pursuant to clause 51(2)(b) of the Act or a removal order pursuant to clauses 51(2)(c) and (d) of the Act – the issue to be determined in making the non-removal order under clause 51(2)(b) is whether or not the society has reasonable grounds to believe that there is a probable risk that the child will suffer harm if reasonable terms and conditions of a supervision order are not imposed. See: Children's Aid Society of Halton Region v. Z. (T.A.), 2012 ONCJ 231, par. 20.
[36] 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.
3.3 Who Had Charge of the Children?
[37] The Act gives priority under clauses (a) and (b) of subsection 51(2) of the Act to the person who had charge of the children prior to society intervention under Part III of the Act.
[38] The father submits that he was the person who had charge of the children at the relevant time. The society and the mother submit that the mother had charge of the children at the relevant time.
[39] In paragraphs 22-32 of Children's Aid Society of London and Middlesex v. S.D., Justice R.J. Harper does a thorough review of the case law related to who has charge of a child 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)."
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., 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., 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:
[14] 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, 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.
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.
[40] This case offered a unique set of facts that made it difficult to determine who had charge of the children at the relevant time. There are factors to support a finding that the father had charge of the children. He cared for the children from June 24, 2013 until the application was issued on August 29, 2013 - slightly over two months. He was responsible for enrolling the children in school. The mother did not file material challenging the placement of the children with the father until she filed her Answer/Plan of Care on October 24, 2013 and did not challenge (in court) his temporary care of the children until she filed her motion material on December 29, 2013. His care of the children was more than temporary or transient.
[41] There are also factors that support a finding that the mother had charge of the children at the relevant time. She had legal custody of D. pursuant to the Children's Law Reform Act (she had not gone to court for an order regarding B.). She had been the children's primary caregiver until June 23, 2013. The children were removed from her care at the society's insistence. The compromise of the mother's status (of having charge of the children) was caused by a combination of the society's ultimatum that she temporarily place the children with the father or face a court proceeding in five days and the society's delay in bringing the promised protection application. The society acknowledged these facts and submitted that the mother's status should not be prejudiced in these circumstances.
[42] The mother never conceded that the children should remain with the father, did not relinquish her custodial rights and did not waive her legal status of having charge of the children. This case was different than Children's Aid Society of Algoma v. J.M., where the court found that a voluntary agreement signed by a parent placing the children in the care of another parent evidenced a relinquishment of the charge of a child. Here, the mother did not relinquish the children voluntarily.
[43] I repeat my comment that the court should be cautious in taking away a person's rights under subsection 51(2) of the Act. Here, the mother had little choice but to agree to the society's demand to temporarily place the children with the father. If the society had brought the matter to court in a timely manner, there would have been little argument that the mother had charge of the children at that time. It would be manifestly unfair for her to lose the protection of subsection 51(2) of the Act due to these circumstances. That said, the reality is that due to these circumstances, the father also established aspects of care and control of the children prior to the court application that dictate a finding that he too had charge of the children. His rights under subsection 51(2) of the Act also should not be compromised due to these events.
[44] The court's finding is that both parents had elements of care and control of the children at the relevant time that entitle them to the rights set out in subsection 51(2) of the Act. The court finds that both parents had charge of the children at the time immediately before the society's intervention under Part III of the Act.
[45] The next step is to determine if the society met the two-part test against the parents.
Part Four - The First Part of the Two-Part Test
[46] The first part of the two-part test under subsection 51(3) of the Act only has to be met against one of two parents 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.
[47] The mother conceded that the society had met the first part of the two-part test under subsection 51(3) due to her mental health challenges at the time the children went to live with the father. The society also met the first part of the two-part test against the father because of his subsequent neglect of the children's needs.
Part Five – The Second Part of the Two-Part Test
5.1 Positions
[48] The society submitted that the evidence did not support a finding that the second part of the two-part test had been established against either parent and the court would need to make a supervision order placing the children with one of the parents. The society submitted that the children could be adequately protected in the care of either parent with terms of supervision. The society submitted that the court would need to weigh the competing plans of the parents and submitted that the mother presented a better plan than the father. The parents argued that the society had met the second part of the two-part test in respect of the other parent, but not against them.
5.2 The Mother
[49] The court agrees with the society's submission regarding the mother. Supervision terms would be sufficient to adequately protect the children in her care.
[50] The court continues to have protection concerns about the mother, including:
a) The stability of her mental health. The mother had a dissociative episode in June of 2013 that led to society intervention. She acted in a violent manner during this episode. This was not her first mental health episode. She has had blackouts where she demonstrated dissociative behaviour before. The mother told her neurologist that these bouts have gone on for years. She told the neurologist that she has had suicidal thoughts and aborted suicide attempts in the past. The medical evidence filed set out that the mother has experienced considerable trauma and abuse in her life. She is susceptible to these dissociative episodes when placed under extreme stress. The mother has maintained positive mental health since the summer of 2013, but given her history, there is a continued risk of these episodes happening that would place the children in harm's way.
b) She is fragile medically. She is on long-term disability payments arising from a motor vehicle accident and has fibromyalgia. This will create a challenge in managing young children.
c) She has not had domestic violence counseling. In fact, she still expresses a desire to reunite, at some time in the future, with her former partner, T.A., who physically abused her. T.A. has a criminal release condition that he not contact the mother and there is no evidence that this condition has been breached. The mother's lack of insight into the dangers of her relationship with T.A. is of considerable concern.
[51] These safety concerns are offset by the following factors:
a) The mother has been pro-active in seeking medical treatment. She successfully completed the day treatment program at North York General Hospital in September of 2013. She completed the Re-motivation program (that provides group counseling 2 days per week) that ran at North York General Hospital from October of 2013 to January of 2014. This program provided her with strategies to deal with stress and anxiety. The mother completed an anger management program which has also assisted her in dealing with stress. She is in the middle of attending a Dialectical Therapy Program (that she was able to locate) that started in November of 2013. She began the Pathways to Recovery Program two weeks ago. This is an after-care program. Her treating physicians have reported to the society that the mother has made excellent progress, is medication-compliant, consistently attends for treatment, is highly motivated and that her mental health status is stable. The society worker deposed that she has noticed the improvements in the mother's ability to deal with stressful situations and that she is able to deal with conflict calmly.
b) The mother has demonstrated considerable resourcefulness accessing programs. She appears highly motivated to address her challenges and parent the children.
c) The mother has developed a suitable safety plan to mitigate the risks of a future mental health breakdown. This plan includes her sister, her older child and step-son, and her treatment providers. Her sister filed an affidavit indicating her willingness to assist the mother and provide parenting relief. The sister works for youth services. She has successfully cleared a vulnerable persons check.
d) The mother provided a detailed and well-considered plan of care for the children. She plans to arrange for a social worker at school for D. She plans to enroll the children in hockey and swimming. She set out the activities that the children participated in before they left her home.
e) The mother has suitable housing for the children (a five-bedroom townhouse).
f) The mother will be at home full-time to care for the children (as will the father).
g) The children did very well in the mother's care for an extended period in December of 2013. The evidence indicates that access has been positive and the mother is managing the children well.
h) The society reports that the mother has been very cooperative in working with them. She is receptive to their direction and assistance.
i) The children have a very close relationship with the mother. B. is very clear that she wants to live with her mother. The court takes her young age into consideration when weighing the importance of this. While D. is remaining neutral, the children express the view that they wish to live together.
j) The children will have the benefit of living with their step-sister and the mother's step-son.
k) The mother has historically been the primary caregiver of the children. She was able to provide a reasonably stable home for the children until June 23, 2013.
l) The children consistently attended school when in the mother's care. She ensured that a social worker work with D. She appears much more attuned to the children's academic needs than the father.
m) The mother expressed her commitment to stay away from T.A. and suggested such a condition form part of the court order. The society feels that they can work with the mother on this issue.
n) The children have been spending significant time with the mother. The transition back into her home should not be difficult for them.
o) It is a significant consideration that the society supports the mother's plan. The society workers are dealing intensively with the parents and have considerable knowledge about their strengths and weaknesses. They are able to observe how well the mother is coping with her mental health and how the parents are parenting the children.
5.3 The Father
[52] The evidence set out the following positive factors about the father and his plan:
a) The children appear to love their father and want to spend a lot of time with him.
b) The father has historically spent considerable time with the children.
c) The father has good intentions and wants to provide a good home for the children.
d) The father has indicated that he will be participating in a parenting program to improve his parenting.
e) The father deserves credit for providing a home for the children when the mother was unable to care for them.
f) The children have been living with the father since June 24, 2013. It is accepted law that the status quo is an important factor in any placement decision. In Children's Aid Society of Ottawa v. E.S., 2010 ONSC 7182, Justice P.B. Annis writes at paragraph 17:
… unnecessary changes in care of the child should be avoided and that therefore, the frequency of changing the child's residency and its impact can be very relevant in an interim care and custody motion. This is all the more so if the de facto care situation has been in place for a number of months and the final hearing date is fast approaching.
g) A change in placement would mean a change in the children's school in the middle of the school term. They have already experienced instability in the past 7 months. A move would mean more instability.
[53] Notwithstanding these positive factors, the protection concerns about the father dictate a finding that supervision terms would be inadequate to safely return the children to his care at this time. These concerns are as follows:
a) The father is struggling to meet the children's academic needs. The children have missed 20 out of the past 44 school days. The father was unable to provide an acceptable explanation for the children's absences from school.
b) The children's teachers advised the society that the children are behind academically. D.'s teacher advised that the father is not engaging with the school and hasn't attended parent-teacher meetings. D. is not doing homework. The father told the society worker that he had been told by another parent that teachers were not supposed to give homework. This demonstrated a fundamental lack of understanding of D.'s academic needs. The father also deposed that the teachers have told him how well the children are doing in school. This seems unlikely given the teachers' reports to the society.
c) The father's neglect of the children's academic needs outweighs the benefit to the children of remaining in their present school.
d) The father appears to be using excessive corporal discipline on the children, particularly D. The children have reported D. being slapped in the face by the father on more than one occasion (they have also denied it on occasions). There is concern that D. recanted this allegation after discussing it with the father and apologized for lying about it. The father denies using physical discipline on the children.
e) The father has struggled in managing the children. When he became sick in December of 2013, he had no other supports and turned them over to the mother for three weeks. It was puzzling that the father did not exercise access to the children during most of this time.
f) The father's accommodation for the children is not good. He lives in a small one-bedroom basement apartment. The father has moved three times since 2012. The father had an altercation with his landlord in 2013 that required police intervention and the family to live in a restricted area of the home.
g) Until recently, the father had inadequate provisions for the children. The children were sleeping on the top of a bunk bed together. There was no table or chairs for them to do schoolwork on. The children were complaining of inadequate food in the home.
h) The father has provided sporadic cooperation with the society. He did not advise them when he placed the children with the mother in December. The mother did this and obtained permission from the society worker for the children to stay with her.
i) The father provided little detail of his plan of care for the children. Unlike the mother, he did not address how he will deal with the children's schooling issues, set out the needs of the children, or how he proposed to address them.
[54] The father's parenting of the children has been in serious decline over the past three months. Supervision terms have already been tried with the father. The result has been unsuccessful and the needs of the children have been neglected. This is unacceptable. The court was provided with little evidence to give it any confidence that there would be any improvement with further supervision terms.
[55] The court finds that supervision terms would be inadequate to protect the children in the father's care. The two-part test has been met against the father.
Part Six – Final Comments
[56] Even if the father had been able to convince the court, based on the evidence filed, that supervision terms were adequate to protect the children in his care, the court would still have placed the children with the mother. When more than one person has charge of a child, the court must assess which of the persons is better able to care for the child, having regard to the purpose and intention of the Act. See: Children's Aid Society of Toronto v. S.A., 2008 ONCJ 348, per Justice Robert Spence. In assessing the respective plans the court should consider subsection 1 of the Act which reads as follows:
- (1) The paramount purpose of this Act is to promote the best interests, protection and well being of children.
[57] The court should also consider the relevant best interest factors set out in subsection 37(3) of the Act.
[58] The court finds that the mother has presented the more appropriate plan for the children, having regard to the requirements of the Act. The father has struggled in caring for the children and has neglected many of their basic needs. He has likely resorted, when frustrated, to inappropriate physical discipline. The evidence indicates that the mother is the more organized and involved caregiver for the children. She has made improvements in her health and has presented a plan that adequately addresses the risks posed by her mental health issues.
[59] In reviewing the best interest factors set out in subsection 37(3) of the Act, the court finds:
a) The mother is better able than the father to meet the physical, mental and emotional needs of the children.
b) The mother is better able than the father to meet the physical, mental and emotional level of development of the children.
c) Both parents offer the children a positive relationship as a member of the family.
d) The mother's plan permits the children to live with their step-sister.
e) The father has provided the children with a home for over the past 7 months and deserves credit for stepping forward when the mother could not care for them. The children would not change schools under his plan. The benefit of this is outweighed, though, by his neglect of the children's schooling. The mother's plan likely provides the children with more stable accommodation as the father plans to move once again.
f) The mother's plan is more meritorious than the father's, for the reasons set out in this decision.
g) B. wishes to live with the mother. D. expresses no preferences. The children wish to live together.
h) There are risks with both plans. There are risks that the father will continue to neglect the children's needs and use inappropriate physical discipline on them. There is a risk that the mother's mental health will deteriorate again. The mother has taken appropriate steps to mitigate her risks. The father has not.
[60] The children shall be placed in the temporary care and custody of the mother pursuant to clause (b) of subsection 51(2) of the Act. The placement will be subject to society supervision. The supervision terms suggested by the mother in her Notice of Motion are appropriate and will be ordered. The society was content with these terms. The court considered adding a term requiring the mother to attend for domestic violence counseling. She could certainly benefit from this. However, the court is concerned about overloading the mother with programs at this time. It is suggested that she complete one of her programs, stabilize the children in the home and then seek this counseling in 2 to 3 months.
Part Seven - Access
[61] The mother proposed that the father exercise access on alternate weekends. The father deposed that he used to exercise access every weekend with the children. The society supports generous overnight access for the father. Counsel for the children submitted that the mother was not offering sufficient access for the children and that the children would want to spend more time with the father.
[62] Subsection 51(5) of the Act provides that where an order is made under clause 2(c) or (d) of subsection 51(2), the court may order access on any terms that it considers appropriate. In determining what order is appropriate, the court should consider the paramount purpose of the Act, being the best interests, protection and well-being of children and the secondary purposes of maintaining the integrity of the family unit, assisting families in caring for their children and recognizing the least disruptive action consistent with the best interests of the children (subsections 1(1) and (2) of the Act). In assessing best interests, the court should consider the relevant factors set out in subsection 37(3) of the Act. I have done this.
[63] The evidence supports an order for generous overnight access as:
a) The children love the father and have a close relationship with him.
b) The children have historically spent a lot of time with the father.
c) The children wish to spend a lot of time with the father.
d) The court is less concerned about the housing and schooling issues when it comes to access – particularly if the access takes place on weekends.
e) It will assist the mother to have consistent parenting relief.
[64] The father will have temporary access to the children on three out of every four weekends from Fridays at 6 p.m. until Sundays at 7 p.m. This will extend to Mondays at 7 p.m. if there is a statutory holiday on the father's weekend with the children. The children will have three consecutive weekends with the father, followed by one with the mother. The parents are to notify the society if they are changing this arrangement on any weekend. The father is to refrain from using any physical discipline on the children.
Part Eight – Conclusion
[65] A temporary order will go on the following terms:
a) The children shall be placed in the temporary care and custody of the mother, subject to society supervision, on the terms and conditions set out in Paragraphs 1(a) – (i) of the mother's Notice of Motion dated December 30, 2013.
b) The father will have temporary access to the children on three out of every four weekends from Fridays at 6 p.m. until Sundays at 7 p.m, starting on February 7, 2014. This will extend to Mondays at 7 p.m. if there is a statutory holiday on the father's weekend with the children. The children will have three consecutive weekends with the father, followed by one with the mother. This order means that the children should return to the mother on Sunday February 9, 2014 at 7 p.m.
c) The parents are to notify the society if they make any changes to this access schedule.
d) The father shall have reasonable telephone access to the children.
e) The father shall not use physical discipline on either child.
f) The father shall immediately notify the society of any change to his address or contact information.
g) The father shall permit the society to attend at his residence to ensure that it is suitable for visits.
[66] The matter shall return to court for a case conference on April 10, 2014 at 10:00 a.m.
[67] I thank counsel for their excellent presentation of this challenging motion.
Date of Release: February 6, 2014
Justice S.B. Sherr
Footnotes
[1] Most cases state that the change in circumstances must be material and risk-based. See for example: Children's Aid Society of Toronto v. K.D., 2011 ONCJ 55
[2] An earlier date could not be scheduled due to trial and vacation commitments of counsel and the court.
[3] The mother described two previous incidents.
[4] The mother filed a psychiatric report stating that she had no current suicidal ideation.
[5] This was according to the most recent records provided to the society.
[6] The father advised the court at this hearing that he has now obtained new accommodation and plans to move shortly.
[7] This case is unusual in that an order under clause (b) of subsection 51(2) was made in favour of the mother, but not the father. With respect to the father, though (another person in charge), the mother would be "another person" as set out in clause (c) and this would trigger subsection 51(5) of the Act as the applicable access test for the father. If I am wrong about this analysis, the applicable section for access for the father would be set out in section 58 of the Act and the test would be what access order is in the best interests of the children. There appears to be little practical difference in the access tests set out in subsection 51(5) and section 58 of the Act.
