WARNING

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

This is a case under Part III of the Child and Family Services Act, R.S.O. 1990, c. C-11, as amended, 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.

45.— (8) Prohibition on publication of identifying information

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.

45.— (9) 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) Offence

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

Brampton Registry No.: 20031/15

Date: 2015-06-02

Ontario Court of Justice

Between:

Children's Aid Society of the Region of Peel, Applicant,

— And —

A.C. (mother), D.K. (father of C.C.-K. and K.C.-K.), C.V. (father of A.C.), S.C. and K.B. (maternal grandparents), Respondents

Before: Justice Lise S. Parent

Heard on: 27 May 2015

Reasons for Judgment released on: 2 June 2015

Counsel

Shannon Kinch — counsel for the applicant society

Robert K. McQueen — counsel for the respondent mother, A.C.

Raymond E. Sharpe — counsel for the respondent father D.K.

No appearance by or on behalf of the respondent C.V., even though served with notice

Paul C. Buttigieg — counsel for the respondent maternal grandparents, S.C. and K.B.

JUSTICE L.S. PARENT:

1: PROCEEDING BEFORE THE COURT

[1] The matter before the court is a motion brought by the Children's Aid Society of the Region of Peel (the society) seeking an order that the children, A.C., born on […] 2006, C.C.-K, born on […] 2011 and K.C.-K., born on […] 2011, be placed in the temporary care and custody of the maternal grandparents, S.C. and K.B., subject to the supervision of the society with conditions.

[2] The society's notice of motion in support of its request is located at tab 2, volume 1 of the continuing record. This document sets out the terms and conditions that the society is requesting regarding the maternal grandparents and the mother. In support of its position, the society has filed the following documents:

(a) the affidavit of the involved worker, Ms. Nancy Wangui, sworn on 8 April 2015 and located at tab 3, volume 1 of the continuing record; and

(b) the affidavit of Ms. Wangui's supervisor, Ms. Dean Lashington, sworn on 22 May 2015 and located at tab 19, volume 1 of the continuing record.

[3] At the beginning of the hearing, counsel confirmed that the maternal grandparents and the mother are consenting to the order sought by the society for all three children.

[4] Counsel for the mother confirmed his client's consent in spite of the notice of motion, filed at tab 14 of volume 1 of the continuing record wherein the mother sought the return of all three children to her care without or with society supervision and that her access to the children be in the discretion of the maternal grandparents.

[5] C.V, the father of the child, A.C., did not participate in the temporary care and custody hearing. He did not file any materials nor did he attend the hearing.

[6] Counsel for the society, on consent of the mother and the maternal grandparents, requested an order noting C.V. in default. In support of this request, counsel referred to the affidavit of service located at tab 1 of volume 1 of the continuing record confirming that C.V. had been personally served, on 10 April 2015, with the protection application filed 9 April 2015.

[7] Given the request to note the father C.V. in default and the consent of the mother and the maternal grandparents regarding the order sought by the society for the child A.C., there is no issue in dispute for determination regarding the child, A.C.

[8] The matter before the court for determination is therefore limited to the order regarding the children C.C.-K. and K.C.-K. only.

[9] D.K., the father of the children C.C.-K and K.C.-K., has filed a notice of motion located at tab 6, volume 1 of the continuing record. The father is seeking a temporary order placing the children C.C.-K and K.C.-K. in his care subject to society supervision.

[10] In the alternative, D.K. is seeking an order specifying his access to his children C.C.-K and K.C.-K. to be as follows:

(a) every other Monday from 3-8 p.m.;

(b) every second weekend from Friday at 5 p.m., to Sunday at 7p.m. to be extended to Monday if it is a holiday; and

(c) other times agreed upon by the parties.

[11] At the beginning of the hearing, counsel for the society, counsel for the mother and counsel for the maternal grandparents, confirmed their clients' respective consents to the order sought by D.K. regarding access only.

[12] This consent therefore further limits the issue before the court for determination to be whether or not the children, C.C.-K. and K.C.-K., should be placed in the temporary care and custody of the maternal grandparents or the father D.K. Both placements would be under the supervision of the society with conditions.

[13] The mother relies on the evidence contained in her affidavit sworn on 5 May 2015 and located at tab 15 of volume 1 of the continuing record filed in support of the order sought by the society and in opposition to the plan presented by the father, D.K.

[14] The maternal grandparents rely on their affidavits sworn on 4 and 21 May 2015 and located at tabs 9, 10 and 20 of volume 1 of the continuing record filed in support of the order sought by the society and in opposition to the plan presented by the father, D.K.

[15] The father relies on his affidavits sworn on 15 April 2015 and 8 May 2015 and located at tabs 7 and 18 of volume 1 of the continuing record filed in support of the order that he is seeking and in opposition of the plan supported by the society, the maternal grandparents and the mother.

[16] The father was also permitted, without opposition from the other parties, to file an affidavit sworn on 26 May 2015 at the beginning of the hearing.

[17] The paternal grandparents have filed affidavits in support of the father. These affidavits are located at tabs 16 and 17 of volume 1 of the continuing record.

[18] Subsection 51(7) of the Child and Family Services Act, R.S.O. 1990, c. C-11, as amended, permits the court to admit and act on evidence that the court considers credible and trustworthy in the circumstances. In determining what evidence is credible and trustworthy, the evidence in its entirety must be viewed together. Evidence that may not be credible and trustworthy when viewed in isolation might reach the threshold of credible and trustworthy when examined in the context of other evidence. I have carefully reviewed all the materials filed in this matter within the context of subsection 51(7).

2: BACKGROUND FACTS

[19] The evidence filed by all parties provides the following undisputed background facts:

(a) The society initially became involved with the mother in August 2007. This involvement was centered on the child A.C. and concerns received by the society regarding the mother's ability to properly care for him. The file was closed when these concerns were not verified;

(b) The society re-opened its file in March 2011 as it received concerns of domestic violence regarding the mother and the father, D.K. The file was closed as these concerns were not verified;

(c) The society re-opened its file on 18 June 2011, following the birth of the children of C.C.-K. and K.C.-K. and concerns regarding the existence of domestic violence. The file was closed as the investigation uncovered that the concerns were historical in nature and not current. Furthermore, the mother was receiving support from the maternal grandparents in caring for the children;

(d) On 11 July 2012, a final order was granted by Justice Manjusha B. Pawagi in domestic proceedings involving the mother and the father, D.K. This order, which is attached as exhibit "A" to the affidavit of the father, D.K. at tab 8, provided, among other terms, as follows:

(i) that the mother have final sole custody of the children, C.C.-K. and K.C.-K. (paragraph 3);

(ii) that, prior to making any major decisions affecting the children, inclusive of but not limited to decisions with respect to the children's health, education and religious upbringing, the mother was to provide thirty (30) days notice to the father so as to "solicit and consider any input that he may have to that decision." (paragraph 4);

(iii) that the children, C.C.-K. and K.C.-K., "shall have their primary residence in the home of" the mother (paragraph 15); and

(iv) that the father, D.K., have specified access to the children (paragraph 18).

(e) The society re-opened its file on 2 October 2013 when it received a call from the community reporting concerns that the mother was using inappropriate physical force to discipline the child A.C. The file was closed as the mother agreed to access services in the community to assist her in meeting A.C.'s needs;

(f) The society's recent involvement with the mother commenced on 13 May 2014 when the society received concerns regarding the child A.C. from staff from his school. The investigation resulted in the society's having concerns regarding the mother's caregiving capacity, involvement in abusive relationships, inappropriate use of physical force and yelling in disciplining her children, financial difficulties, her mental health, namely borderline personality disorder, generalized anxiety, panic attacks and post-traumatic stress disorder, her self-harming threats, alcohol consumption, state of the household, and inability to demonstrate consistency in addressing these issues with appropriate medical professionals in times of non-crisis. During the investigation, the mother acknowledged to community workers that she has challenges managing the children's behaviour, especially A.C., that she has difficulties managing and parenting three children as a single mother, that she does experience panic attacks and bouts of depression and did consume alcohol in an attempt to resolve her problems, and that she relies on her parents to assist her in parenting her children.

(g) In November 2014, the child, A.C., was voluntarily placed in a residential treatment facility. It is anticipated that he will be released at the end of June 2015;

(h) On 10 February 2015, the children, C.C.-K. and K.C.-K., were voluntarily placed by the mother in the care of the maternal grandparents where they currently remain;

(i) The placement of the children, C.C.-K. and K.C.-K. by the mother was made without notice to or consultation with the father, D.K., as required under the final order granted on 11 July 2012 in the domestic proceedings;

(j) During the period of the voluntary placement, the father, D.K., exercised access to the children, C.C.-K. and K.C.-K., in accordance with the existing order in the domestic file;

(k) On 9 April 2015, the society filed a protection application seeking that all three children were in need of protection pursuant to subclauses 37(2)(b)(i) and (ii) of the Child and Family Services Act and an order placing them in the care of the maternal grandparents subject to the society's supervision for a period of six (6) months.

3: LEGAL CONSIDERATIONS

[20] There is no dispute that the legal test on this motion is set out in subsections 51(2), (3), (3.1) and (3.2) of the Act.

[21] Subsection 51(2) provides:

(2) Custody during adjournment. 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.

[22] There is no dispute between the parties that subsection 51(3) sets out the criteria under which the placement options under subsection 51(2) must be considered. The subsection provides as follows:

(3) Criteria. 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).

[23] There is no dispute between the parties that the court's priority must be to return a child to the person having charge of that child immediately before the commencement of child protection proceedings. This priority is suspended if there is a determination that the child cannot be adequately protected by an order making that placement under the supervision of the Society subject to reasonable terms and conditions.

[24] It is only if the return of a child under clause 51(2)(a) or (b) cannot be ordered does the court consider a placement other than with the person who had charge of the child prior to the commencement of the child protection proceedings under clause 51(2)(c) or (d).

[25] In such circumstances, subsection 51(3.1) gives priority to the placement of the child with a relative or community member over a foster care placement.

[26] Subsection 51(3.1) provides as follows:

(3.1) Placement with relative, etc. 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.

4: POSITION OF THE SOCIETY

[27] Counsel for the society submits that the priority placement option for the children C.C.-K. and K.C.-K. is with the maternal grandparents. The society submits that the mother and the maternal grandparents were the persons who had charge of the children immediately prior to the commencement of the child protection proceedings on 9 April 2015.

[28] Furthermore, counsel submits that the only placement option is with the maternal grandparents, as all parties are in agreement that the return of the children to the mother pursuant to an order under clause 51(2)(a) or (b) would not adequately protect them.

[29] Counsel for the society submits that, should I find that the maternal grandparents were persons who had charge of the children and that the children can be adequately protected should this placement be subject to the society's supervision, then the order sought by the society must be granted given the priority requirement of the Act to placement options captured under clause 51(2)(a) or (b).

[30] The father, D.K., does not dispute the fact that the children could be adequately protected should the society's request for an order as set out in their notice of motion is granted.

[31] The issues in dispute are:

(1) did the maternal grandparents have charge of the children? and

(2) notwithstanding the answer to (1), did the father also have charge of the children given that he was exercising access to them?

4.1: Issue 1 — Did the Maternal Grandparents Have Charge of the Children Immediately before the Commencement of the Child Protection Proceedings?

[32] In support of the society's position that the maternal grandparents had charge of the children, counsel relies of the decision of Justice Stanley B. Sherr in Catholic Children's Aid Society of Toronto v. W.I., 2014 ONCJ 62, 238 A.C.W.S. (3d) 123, [2014] W.D.F.L. 1038, [2014] O.J. No. 620, 2014 Carswell Ont 1458 (Ont. C.J.).

[33] I have carefully reviewed this decision and the precedent cases cited by Justice Sherr in his decision in Catholic Children's Aid Society of Toronto v. W.I.

[34] After a careful review of case law, I am of the view that the evidence supports a finding that the children were in the care of the maternal grandparents following their voluntary placement with them by the mother in February 2015.

[35] The evidence provided by the society, the mother and the maternal grandparents clearly establishes that the maternal grandparents have been involved in the daily caring and responsibilities associated with the children C.C.-K. and K.C.-K. since at least February 2015.

[36] Accordingly, I find an absence of any evidence that leads me to conclude that the maternal grandparents were not the primary parental authority for these children for the two months leading to the commencement of the protection application on 9 April 2015.

[37] Counsel for the father in fact does not dispute this relationship but rather limits his submissions to the fact that the two-month period does not amount to sufficient time for the maternal grandparents to become persons in charge. I disagree with this view.

[38] I am satisfied that the maternal grandparents were therefore persons in charge immediately prior to the commencement of the legal proceedings on 9 April 2015 as contemplated under clauses 51(2)(a) and (b) of the Act and interpreted by Justice Sherr in Catholic Children's Aid Society of Toronto v. W.I., supra.

[39] This, however, is an unusual case in that the mother's placement of the children with the maternal grandparents occurred without notice to or consultation with the father. This consultation and notice was required pursuant to an existing order arising from the parents' domestic proceedings.

[40] Counsel for the father has submitted that the society has not fulfilled its obligation under sections 1 and subsection 15(3) of the Act in not advising the father of the voluntary placement of the children with the maternal grandparents. It is on this basis that counsel submits that the maternal grandparents cannot be viewed by the court as being "persons in charge" as contemplated under clauses 51(2)(a) and (b) of the Act.

[41] The society's evidence and submissions are that the children's placement was (1) a voluntary placement by the mother; and (2) the mother had sole custody of the children and therefore it was within her sole discretion to do.

[42] The society's response is that it has met its obligation under the sections cited by counsel for the father as its involvement with the mother and the maternal grandparents focused on the children's protection. The society submits that its actions ensured that the children were protected through the voluntary placement by the mother with the maternal grandmother.

[43] In addition, the society's submits that it met its obligation by serving the father with the protection application once filed on 9 April 2015.

[44] Counsel for the society also submits that, even though not required to do so by law, the involved worker encouraged the mother to advise the father of the voluntary placement of the children with the maternal grandparents.

[45] My review of the final order granted on 11 July 2012, however, does not support the conclusion reached by the society regarding the mother's decision-making authority.

[46] There is no dispute that the mother was awarded sole custody pursuant to the domestic order. However, the mother's sole decision-making authority in major decisions was conditional on her providing specific notice to the father so as to obtain his input prior to the implementation of her decision.

[47] Paragraph 4 of the order of 11 July 2012 specifically defines major decisions requiring notice and an opportunity for consultation as being "inclusive of but not limited to decisions with respect to the children's health, education and religious upbringing".

[48] Although not raised by counsel, the question could be whether or not the placement of the children with their maternal grandparents is a "major decision" as contemplated under paragraph 4 of the order of 11 July 2012.

[49] I am of the view that, in fact, the relocation of residence of the children is a major decision as contemplated within the order of Justice Pawagi dated 11 July 2012. I make this finding in light of paragraph 15 of the order, which provides that the children, C.C.-K. and K.C.-K. "shall have their primary residence in the home of the" mother.

[50] The evidence is clear therefore that the mother, contrary to her legal obligations as set out in the order of Justice Pawagi, dated 11 July 2012, changed the children's primary residence from her home to the home of the maternal grandparents without notice to or consultation with the father. The mother therefore did not have the sole authority to place the children with the maternal grandparents as she did not meet the conditions of notice and consultation.

[51] The society's reliance therefore on the mother's sole decision-making authority in placing the children with the maternal grandparents therefore is questionable. I do not accept the submissions by counsel for the father that this reliance is tantamount to the society's not meeting its obligations as submitted on behalf of the father. I do find however that the society worker should have ensured that her knowledge of the parameters of the domestic order was complete as part of her investigation.

[52] Given this determination, can it be said that the placement of the children with the maternal grandparents, even if done contrary to a court order, removes the status of "persons in charge" from the maternal grandparents under clauses 51(2)(a) and (b) of the Act?

[53] As previously stated, counsel for the father submissions on this point were limited to the fact that the voluntary placement of the children with the maternal grandparents for the period between February and April, 2015 does not provide for a sufficient period of time for the grandparents to be viewed as persons in charge.

[54] Counsel for the father did not raise in his submissions, whether or not the fact that the placement of the children with the maternal grandparents, having been done contrary to an existing court order, affected whether or not the maternal grandparents could acquire the status of being "persons in charge".

[55] Clauses 51(2)(a) and (b) of the Act do not address the factor of how a child comes to be placed potentially impacts the determination of that placement being with a "person in charge".

[56] Justice Sherr in Catholic Children's Aid Society of Toronto v. W.I., supra, and the case law cited within his decision, focus on the nature of the relationship between the person and the child in order to determine whether or not the person has acquired the status of being in charge of the child and not how the placement arose.

[57] The criterion applied by Justice Sherr is whether or not there is the existence of "active caring" by the person and taking responsibility for the child. The focus is clearly on the relationship itself and not how the circumstances permitting that relationship to develop occurred.

[58] I find on the evidence as a whole that the relationship of the maternal grandparents with their grandchildren, following their placement with them in February 2015, meets the criteria reviewed by Justice Sherr in Catholic Children's Aid Society of Toronto v. W.I., of the term "person in charge" under clauses 51(2)(a) and (b) of the Act.

[59] Accordingly and based on my review of the evidence, the society has established that the maternal grandparents were "persons in charge" immediately prior to the commencement of the child protection proceedings as contemplated under clauses 51(2)(a) and (b) of the Act.

[60] The fact that this status was acquired contrary to an existing order, does not in my view, negate the status of the maternal grandparents as "persons in charge".

4.2: Issue 2 — Did the Father Also Have Charge of the Children Given that He Was Exercising Access to Them Immediately prior to the Commencement of Child Protection Proceedings?

[61] Counsel for the father submits that his client also meets the definition of "person in charge" under clauses 51(2)(a) and (b) of the Act.

[62] In support of his position, counsel for the father refers to the affidavits filed by his client and the paternal grandparents, which show that:

(a) the father had significant time with the children as provided for in the order of Justice Pawagi, dated 11 July 2012; and

(b) the father had significant involvement with the children following their birth and the parents' separation.

[63] Counsel for the society, the mother and the maternal grandparents submit that the access exercised by the father does not meet the threshold of giving him the status of "person in charge" for the following reasons:

(a) the father had the children for three days out of a fourteen-day cycle;

(b) the father did not exercise access to the children to the maximum time permitted under the order of Justice Pawagi, dated 11 July 2012. Specifically, the evidence is that the father did not exercise access to the children on Tuesday evenings as permitted under the order for a significant period of time;

(c) the father did not have legal custody of the children;

(d) the father only exercised the role of an access parent and not the role of a custodial parent towards the children since the parents' separation; and

(e) the father did not really care for the children even during access visit as he relied on his parents to care for the children.

[64] For these reasons, counsel submit that the father has always been only an access parent and does not meet the onus of proof of establishing that he was a "person in charge" immediately before the commencement of the child protection proceedings regarding the children C.C.-K. and K.C.-K.

[65] As previously indicated, the order of Justice Pawagi clearly set out the pre-conditions so as to allow the mother to solely make major decisions for the children. I have found that the mother breached these conditions in changing the children's primary residence from her home to the home of the maternal grandparents without notice to or consultation with the father.

[66] The question is therefore, if the father had been notified or consulted as required by the order of Justice Pawagi, would he have filed a motion to change the terms of the order to seek custody of the children in his care or an order prohibiting the mother from following through with the proposed placement with the maternal grandparents?

[67] This question was not addressed directly in the father's materials nor in submissions by his counsel. However, submissions were made and the evidence is that:

(1) the father was not aware of the voluntary placement of the children with the maternal grandparents until served with the society's protection application on 10 April 2015;

(2) upon being served with the protection application, the father did not delay in retaining counsel or fully participating in the child protection proceedings; and

(3) the plan of care and answer filed by the father and his position at this temporary care and custody hearing is that the children be placed in his care.

[68] Given the totality of the evidence, I find that the father was in fact "a person in charge" as defined under clauses 51(2)(a) and (b) of the Act.

[69] The father has a caring relationship with his children, he has spent time with them and has the legal authority to provide input into major decisions affecting their well-being. These factors, even though the father had the children in his care for less time than the mother, are sufficient to satisfy me that the father has a caring relationship and meaningful involvement with his children and was therefore a "person in charge" immediately prior to the commencement of the protection proceedings.

[70] Despite the concerns raised by the mother and the maternal grandparents regarding the children's care while with their father, the evidence shows that the mother did not seek to change the access terms pursuant to the order of Justice Pawagi and that the mother and the maternal grandparents continued to ensure the children's attendance at the father's home during the period of the voluntary placement.

[71] It is unclear to me why the mother decided to respect the order of Justice Pawagi regarding access but not decision-making. The only conclusion to be reached is that she wished to prevent the father from seeking the full-time care of the children.

[72] The mother, by her actions, prevented the father from exercising the authority granted to him under the order of Justice Pawagi. The purposeful behavior of the mother effectively prohibited the father from seeking additional time with the children upon being made aware of the mother's plan to place them with the maternal grandparents or seeking that the children's primary residence be with him.

[73] I do not find that the mother's behavior in ignoring the requirements of the order of Justice Pawagi removes the status of the father also being a "person in charge" immediately prior to the commencement of the child protection proceedings. The impact of the mother's behavior was to neutralize additional factors that could have been presented by the father as additional evidence to the existing evidence in support of his claim that he is also "a person in charge".

[74] I also find that the evidence as a whole supports a finding that the children C.C.-K. and K.C.-K. could be adequately protected pursuant to an order under clause 51(2)(b) if placed with either the father or the maternal grandparents.

[75] The evidence is such that both the maternal grandparents and the father are prepared to continue to fully co-operate with the society, are accepting of the society's supervision and would abide by the terms of this court should the children be placed in their care.

[76] Given my determination that the father and the maternal grandparents were "persons in charge" as contemplated under clauses 51(2)(a) and (b) of the Act and that the children C.C.-K. and K.C.-K. could be adequately protected by supervision terms if placed with either of these parties, both the plans put forth by them must be considered.

5: ASSESSMENT OF THE PLACEMENT OPTIONS

[77] Counsel for the society submits, and it is not disputed by counsel on behalf of the other parties, that the plan put forth by the society, as supported by the maternal grandparents and the mother, and the plan put forth by the father for the care of the children, are to be assessed in accordance with subsections 1(1) and 37(3) of the Act.

[78] Counsel for the society cites paragraph [56] of the decision of Justice Sherr in Catholic Children's Aid Society of Toronto v. W.I., supra, which supports this approach as adopted by Justice Robert J. Spence in his decision in Children's Aid Society of Toronto v. Shajia A., 2008 ONCJ 348, 170 A.C.W.S. (3d) 354, [2008] O.J. No. 3110, 2008 Carswell Ont 4715 (Ont. C.J.).

[79] Counsel for the society, the mother and the maternal grandparents submit that the more appropriate plan for the children, having regard to the requirements of the Act, is a placement with the maternal grandparents.

[80] Counsel submit that this plan meets the best interest of the children in view of the factors listed in subsection 37(3) of the Act for the following reasons:

(a) the placement of the children with the maternal grandparents will ensure a continuity of care, as the children have been in their care since February 2015;

(b) the mother has relied on the assistance of the maternal grandparents for the parenting of the children since their birth. The children therefore are used to seeing their maternal grandparents as parental authorities;

(c) the placement with the maternal grandparents permits all three children to be together;

(d) the placement with the maternal grandparents will allow the children to have access with both parents;

(e) the placement with the maternal grandparents will allow the children to continue with their daily schedule, which includes continuing to attend at A.C.'s extracurricular activities, attend the same day care and continue accessing the community resources in place to address their special needs;

(f) the placement with the maternal grandparents will allow the children to continue their strong relationship with their older sibling, A.C. and the maternal grandparents;

(g) the placement with the maternal grandparents will allow the children to attend the same school as A.C.; and

(h) there are no concerns regarding the ability of the maternal grandparents to meet all of the children's needs.

[81] Counsel for the society, the mother and the maternal grandparents submit that the father's plan is not the plan that is in the children's best interest for the following reasons:

(a) the placement of the children with the father does not permit daily contact with the mother who has been the children's primary caregiver since birth;

(b) the placement of the children with the father does not permit daily contact with the child A.C.;

(c) the placement of the children with the father would have the effect of breaking up the historical family unit; and

(d) there is evidence raised by the mother and the maternal grandparents that the father and the paternal grandparents have been putting pressure on the children and exposing them to discussions involving the child protection proceedings. Counsel for the mother and the maternal grandparents submit that this pressure and exposure has resulted in the children's engaging in behaviour that demonstrates that they are emotionally and behaviourally impacted by the father and paternal grandparents' actions.

[82] Counsel for the father submits that his plan for the children meets their best interests for the following reasons:

(a) the children have been spending time with him since their birth;

(b) the evidence is such that a return of the children to the mother's care will not occur in the foreseeable future, given the concerns raised by the society regarding her ability to properly care for the children. Given this fact, it is in the children's best interest to transition to his care now;

(c) there are no protection concerns raised by the society regarding the father's ability to care for the children or with the involvement of the paternal grandparents;

(d) the father will foster and encourage the children's relationship with the child, A.C., the mother and the maternal grandparents while in his care;

(e) the society's materials do not address how the reunification of all three children will be overseen. Counsel submits that, given the placement of the child, A.C., in a residential treatment facility, his behavior, once back in the care of his maternal grandparents, could have an impact on the children C.C.-K. and K.C.-K. and potentially place them at risk; and

(f) the children are familiar with the home of the father and the paternal grandparents.

[83] There is no dispute that the major difference between the placement plans with the maternal grandparents and the father is that, should the father succeed, the children will not be living in the same household.

[84] The evidence, however, is equally clear that the children, A.C., C.C.-K. and K.C.-K. have not resided together since November 2014 when A.C. was placed in a residential treatment facility.

[85] Counsel for the maternal grandparents, in his submissions, indicated that A.C. has, in the past couple of weeks, been staying at the maternal grandparents' home for six out of seven nights. However, this does not negate the fact that for almost the past seven (7) months, these children have not resided together in the same home.

[86] I find as well that the evidence is clear that the father and his parents and the mother and her parents have aligned with each another in order to mount a campaign supporting their view that the plan of the "other camp" is not appropriate to care for the children. It is within this context that both parties have raised allegations against one another regarding their parenting skills.

[87] The evidence is clear however that, despite these allegations, neither the mother nor the father sought to vary the existing order granted within the context of their domestic proceedings.

[88] In reviewing this evidence, I am mindful that this campaign has been in existence for a significant period of time pre-dating the involvement of the society.

[89] I find that the evidence of the society is the most credible regarding the children's exposure to their parents' conflict.

[90] Paragraph 61 of the affidavit of Ms. Lashington indicates that C.C.-K. and K.C.-K have been "adversely impacted by the conflict that currently exists between the parents to the point where both camps have been advised of the society's expectation that no one is to discuss adult matters with the children and they will support the children's relationship with both sides of the family".

[91] The evidence further supports that all three children have special needs. A.C. will require ongoing services should he be fully discharged from the residential treatment facility. C.C.-K. and K.C.-K. require speech and language therapy. All three children may require counselling services to deal with the emotional trauma as a result of being exposed to the conflict between the mother and the maternal grandparents and the father and the paternal grandparents.

[92] I am satisfied that both placement plans will ensure that C.C.-K. and K.C.-K.:

(a) are properly cared for;

(b) will continue to access the necessary resources to address their special needs; and

(c) will provide sufficient contact with both parents, the maternal grandparents and the siblings.

[93] When considering what is in the best interests of C.C.-K. and K.C.-K, I find the father's plan more worthy and in the best interest of the children for the following reasons:

(a) whether C.C.-K. and K.C.-K reside with their maternal grandparents or their father, either placement will result in their experiencing a degree of change and transition;

(b) I am satisfied that the father, with the assistance of the paternal grandparents, can ensure the adjustment of the children C.C.-K. and K.C.-K in his full-time care; and

(c) the placement of C.C.-K. and K.C.-K with their father will minimize the conflict between the father's camp and the mother's camp, which was at the point of both camps exposing the children to their conflict and the mother actively engaging in behaviour contrary to an existing court order regarding the well-being of the children.

[94] In making this determination, I am also mindful that priority should be given to the children's placement with a parent over a grandparent.

[95] Furthermore, I am mindful that the status quo of the children residing with the maternal grandparents was established through the mother's breach of an existing court order. Such behaviour cannot be viewed as being in the children's best interest.

6: ORDER

[96] For these reasons, I am satisfied that the following temporary order is in the children's best interest:

Regarding the child A.C.:

1. The father of A.C., namely C.V., is hereby noted in default;

2. On consent of the society, the mother, A.C. and the maternal grandparents, S.C. and K.B, and on default of the father, C.V., the child, A.C., born on […] 2006 shall be placed in the temporary care of the maternal grandparents, S.C. and K.B. subject to the supervision of the Children's Aid Society of the Region of Peel under the conditions listed at paragraphs 2(a) and (b) of the notice of motion dated 8 April 2015 and located at tab 2 in volume 1 of the continuing record;

3. In addition, the following conditions are also ordered, namely:

(a) the mother and the maternal grandparents are not to discuss with any of the children any aspect of the child protection proceedings;

(b) the mother and the maternal grandparents are to foster and encourage the relationship between the children K.C.-K. and C.C.-K. and their father, D.K., and the paternal grandparents;

(c) the maternal grandparents will ensure that the child A.C. continue to meet with the necessary medical and health practitioners currently involved with the child as directed by them and implement and follow through with their recommendations;

(d) the maternal grandparents and the mother will sign the necessary consents to ensure that the society is aware of the involvement frequency and nature of the services provided to A.C.; and

(e) the maternal grandparents shall permit the society workers to have private, announced or unannounced access to the child A.C. when requested.

4. On consent of the society, the mother, A.C. and the maternal grandparents, S.C. and K.B, and on default of the father, C.V. access between the child, A.C., and the mother, A.C., and the father, C.V., will be at the discretion of the society.

5. On consent of the society, the mother, A.C. and the maternal grandparents, S.C. and K.B, and on default of the father, C.V., an order will go in accordance with paragraph 3 of the notice of motion dated 8 April 2015 and located at tab 2, volume 1 of the continuing record;

Regarding the children K.C.-K. and C.C.-K.:

6. The children, K.C.-K., born on […] 2011, and C.C.-K., born on […] 2011, shall be placed in the temporary care of the father, D. K. subject to the supervision of the Children's Aid Society of the Region of Peel under the following conditions:

(a) The father, D.K. shall maintain his current residence in the home of the paternal grandparents, A.K and G.K. and reside at this residence with the children K.C.-K., and C.C.-K., unless a change in residence is agreed to by the society or by the court;

(b) The father shall maintain the enrolment of the children K.C.-K., and C.C.-K in their current day-care facility;

(c) The children shall have access to the maternal grandparents, their mother and the child A.C. as follows:

(i) every Tuesday from 3:00 p.m. to 8:00 p.m.;

(ii) every other Monday from 3:00 p.m. to 8:00 p.m.;

(iii) every second weekend from Friday at 3:00 p.m. to Sunday at 7:00 p.m., to be extended to Monday if it is a holiday; and

(iv) any other times agreed to between the parties.

(d) The schedule outlined in (c) above is to begin on the Tuesday and weekend following the placement of the children with their father pursuant to this order;

(e) The access provided for in (c)(iii) above will be exercised at the home of the maternal grandparents, or in the community for the periods outlined in (c)(i), (ii) and (iv) unless otherwise agreed to by the parties;

(f) The mother shall comply with the terms outlined in paragraph 3 of the society's notice of motion dated 8 April 2015 and located at tab 2 volume 1 of the continuing record;

(g) The maternal grandparents, or their delegate approved by the society, shall be responsible for the pick-up of the children at day care at the commencement of the access times in paragraph (c) above;

(h) The father or the paternal grandparents or both, or their delegate approved by the society, shall be responsible for the pick-up of the children at the home of the maternal grandparents or other agreed upon location at the end of the access times in paragraph (c) above;

(i) The father and the paternal grandparents are not to discuss with any of the children any aspect of the child protection proceedings;

(j) The father and the paternal grandparents are to foster and encourage the relationship between the children K.C.-K. and C.C.-K. and their mother, D.K., the maternal grandparents and the child A.C.;

(k) The father will ensure that the children K.C.-K. and C.C.-K. continue to meet with the necessary medical and health practitioners currently involved with them as directed by them and implement and follow through with their recommendations;

(l) The father will sign the necessary consents to ensure that the society is aware of the involvement frequency and nature of the services provided to K.C.-K. and C.C.-K.; and

(m) The father and the paternal grandparents shall permit the society workers to have private, announced or unannounced access to the children K.C.-K. and C.C.-K. when requested.

[97] As indicated in my endorsement following the hearing of the motion, the matter is adjourned to 22 July 2015 at 9:30 a.m. in courtroom 208 to be spoken to so as to determine the next steps in these proceedings given this decision.

Released: 2 June 2015

Justice Lise S. Parent