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 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,

[1] . . .

[2] (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

Date: April 10, 2017

Court File No.: C57964/12

Ontario Court of Justice

Between:

The Children's Aid Society of Toronto

Katie Skinner, for the Applicant

Applicant

- and -

S.C. and I.K.

Dariusz Wroblewski, for the Respondent, I.K.

Respondents

The Respondent, S.C., not appearing

Heard: April 6, 2017

Justice S.B. Sherr

Endorsement

Part One – Introduction

[1] The respondent I.K. (the father) has brought a motion seeking leave to bring a status review application, pursuant to subsection 65.1(5) of the Child and Family Services Act (the Act), with respect to the child, J.K. (the child). The child, who will turn 5 years old in July, was made a crown ward, without access, by Justice Geraldine Waldman on October 15, 2014. The father wants the child to be placed in his care and custody.

[2] The Children's Aid Society of Toronto (the society) asks that the father's motion be dismissed.

[3] The respondent, S.C. (the mother) did not participate on this motion.

Part Two – Procedural History

[4] Justice Waldman made the child a crown ward on October 15, 2014 after a six-day trial.

[5] The respondents appealed Justice Waldman's decision. The appeal was dismissed by Justice Ruth Mesbur of the Ontario Superior Court of Justice on April 13, 2015.

[6] The respondents appealed this decision to the Ontario Court of Appeal. This appeal was dismissed on January 4, 2016.

[7] The respondents' second child, R.K., was born in […], 2015. R.K. was apprehended at birth by the society. A protection application was started.

[8] The respondents did not defend the protection application. Justice James Nevins made R.K. a crown ward, without access, on August 18, 2015. This decision was not appealed.

[9] The father issued a status review application regarding R.K. in this court on March 23, 2016. He sought an order that R.K. be placed with him.

[10] The status review application went to trial on October 31, 2016. On November 16, 2016, Justice Debra Paulseth dismissed it.

[11] The father has appealed Justice Paulseth's decision to the Ontario Superior Court of Justice. The appeal has not been heard.

[12] The father then issued a status review application regarding the child on December 2, 2016. He did not seek leave of the court prior to issuing it, as required by subsection 65.1(5) of the Act. Leave was required as the child had lived continuously with the same foster parent for over two years immediately prior to the application.

[13] On January 18, 2017, on consent, the father withdrew his status review application, without prejudice to his ability to bring this leave motion.

[14] On February 7, 2017, Justice Robert Spence set timelines for the hearing of this motion.

Part Three – Legal Considerations

[15] The father's motion is brought pursuant to subsections 65.1(4) and (5) of the Act. These subsections read as follows:

Others may seek status review

65.1 (4) An application for review of a child's status under this section may be made on notice to the society by,

(a) the child, if the child is at least 12 years of age;

(b) a parent of the child;

(c) the person with whom the child was placed under an order for society supervision described in 65.2(1)(a);

(d) the person to whom custody of the child was granted, if the child is subject to an order for custody described in clause 65.2(1)(b);

(e) a foster parent, if the child has lived continuously with the foster parent for at least two years immediately before the application; or

(f) a representative chosen by the child's band or native community, if the child is an Indian or native person.

When leave to apply required

65.1 (5) Despite clause (4)(b), a parent of a child shall not make an application under subsection (4) without leave of the court if the child has, immediately before the application, received continuous care for at least two years from the same foster parent or from the same person under a custody order.

[16] Subsection 65.1(5) of the Act does not set out a legal test for leave motions.

[17] In Catholic Children's Aid Society of Metropolitan Toronto v. Beverley Anne F., the court set out five criteria (the five criteria) to apply on a motion for leave to bring a status review application. These are as follows:

1. The court must be satisfied that the status review application for which leave is sought is being brought in good faith and not for some ulterior motive.

2. Leave ought not to be granted if the relief can be obtained otherwise than by reviewing the whole order itself.

3. There must be some unusual circumstances that justify the review, in spite of the child's permanent status.

4. The court must be satisfied that the review would likely accomplish the purposes of the Act as set out in section 1.

5. The applicant must establish a case that appears to have merit. Does the case have any realistic chance of success?

[18] The court stated that all five criteria must be satisfied to grant leave. This principle was followed in Children's Aid Society of the Regional Municipality of Waterloo v. L.M., 2015 ONCJ 103.

[19] Other cases have held that while the five criteria are helpful guidelines, the court's discretion is not fettered by holding that the moving party must satisfy the court on all five criteria, or that no other considerations can apply when determining whether to grant leave to bring a status review application. See: S.R. v. Catholic Children's Aid Society of Toronto, 2011 ONCJ 11, per Justice Robert Spence; Children's Aid Society of Brant v. A.C., 2015 ONCJ 436, per Justice Kathleen Baker.

[20] The court will follow the latter line of cases. In the absence of statutory authority, the court should not be fettered from conducting a full contextual analysis in determining whether leave should be granted to bring a status review application. For instance, a case may not have unusual circumstances, but may have significant merit. It would not be a child-focused approach to deny leave in such circumstances.

[21] In Children's Aid Society of Brant v. A.C., supra, Justice Baker agreed with the comments of Justice Lawrence Thibideau in Children's Aid Society of Haldimand and Norfolk v. Jennifer Ann M.-F., 2011 ONCJ 53, where he wrote:

[22] The granting of leave is not mere formality. It is a matter of substance. ...

[23] Any judicial determination with respect to granting leave to permit a parent-originated status review must be done in the context of the philosophy and goals and requirements of the Act, including those in subsection 1(1), subsection 1(2), subsection 37(2), subsection 37(3), section 57, especially subsection 57(3), section 58, especially subsection 58(7), section 59, especially subsection 59(2.1) ...

[46] It is logical to conclude that the test for leave in these circumstances has to be substantial. If not, the plan and its implementation are jeopardized... The test was then stated as follows:

[56] ... Has the moving parent placed before the court, with the request for leave, apparently credible and weighty evidence that is sufficient to warrant holding a hearing on the merits? Is the evidence sufficient to demonstrate there is reasonable prospect of success?

[22] In paragraph 38 of S.R. v. Catholic Children's Aid Society of Toronto, supra, Justice Spence emphasized the importance of the fifth criteria – whether the applicant has presented a case that appears to have merit.

[23] The onus is on the father to convince the court, on a balance of probabilities that leave should be granted. In assessing the merits of the motion, the court must have regard to the legislative principles set out in the Act. The first and foremost is the paramount purpose of the Act, which is to promote the best interests, protection and well-being of the child. In reviewing these purposes, the court should weigh the circumstances flowing up to the leave application with the secure placement of the child. See: Simcoe Muskoka Child, Youth and Family Services v. L.P., 2015 ONSC 6026.

Part Four – Review of the Five Criteria

[24] The society argues that the father has not brought this motion in good faith. It submits that he has not provided sufficient details of his plan and has not shown that he can deliver what is in the best interests of the child. The society relies on case law which states that these are essential elements of establishing a "bona fides" claim. See: C. v. Children's Aid Society of Ottawa-Carleton; Children's Aid Society of Lanark County and Town of Smith Falls v. P.L., 2012 ONSC 7208; Children's Aid Society of the Regional Municipality of Waterloo v. L.M., supra.

[25] With respect, this interpretation of the first criteria is too restrictive. The quality of the moving party's plan, and the ability of the moving party to deliver on the plan are more appropriate considerations when determining the merits of the proposed status review application.

[26] The society led no evidence that the father was bringing this motion in bad faith. The father appears to sincerely believe that it is in the child's best interests to be placed with him. He has sought access since the child was made a crown ward and his requests have been refused by the society. There is no evidence that he is bringing this motion for an ulterior motive.

[27] A status review application is the only mechanism by which the father can have the child placed in his care.

[28] The father led no evidence that there are unusual circumstances in this case which would justify court intervention.

[29] Most importantly, the father has not established that his proposed application has any merit. It has no realistic chance of success. Granting leave to bring a status review application would not accomplish the purposes set out in section 1 of the Act. It would not be in the best interests of the child and would delay his opportunity to become part of a permanent family. These factors will be addressed in more detail below.

Part Five – Analysis of the Father's Proposed Status Review Application

5.1 Justice Waldman's Crown Wardship Decision

[30] Justice Waldman made the following findings in her reasons for decision dated October 15, 2014:

a) The child was in need of protection under clauses 37(2)(b) and (g) of the Act – risk of physical and emotional harm.

b) The mother had emotional and capacity challenges which adversely impacted her ability to parent and problem solve as a parent.

c) The mother was unable to control her emotions and to modulate and regulate her mood and demeanour while caring for the child; specifically, the mother would shout and become aggressive in front of the child, causing the child to become upset.

d) Despite agreements with the society to the contrary, the father had left the mother alone with the child.

e) The father was charged with assaulting the mother in May, 2012 and the mother was charged with assaulting the father in September, 2011. The father was later convicted and sentenced to six days served in custody, a conditional discharge and one year probation.

f) There were concerns about the parents' relationship. The mother would allege that the father was violent and controlling. She would then retract these statements. The father denied any violence. The court did not find the mother to be a reliable witness and did not make a finding that the father was violent to her.

g) There was evidence from access supervisors that the father was controlling and sometimes dismissive of the mother.

h) The father had a limited ability to control the mother's outbursts. For example, during one home visit, the society's family service worker observed the mother yelling in front of the child for the entire one hour visit.

i) The court found that while the father's parenting was not perfect, it was good enough. He had completed the Fatherhood Talk drop-in program at Ujima House as well as the program Super Dads Super Kids. However, the father was unwilling to plan for the child without the mother. The court found that the risk to the child of the parents parenting together was too high.

j) The child was diagnosed with some developmental delays that placed him at the moderate end of the Autism Spectrum.

k) It was in the best interests of the child to be a crown ward.

l) The father's access was regular and the child enjoyed it. There had only been a brief period of unsupervised access. However, the relationship was not beneficial and meaningful to the child as defined in subsection 59(2.1) of the Act.

5.2 The Appeals

[31] Justice Mesbur found no errors in Justice Waldman's decision and dismissed the parents' appeal. She considered an alternative plan from the father's parents. However, she rejected that plan, finding it too vague and not in the best interests of the child.

[32] The Ontario Court of Appeal dismissed the parents' appeal, finding no errors with Justice Mesbur's decision.

5.3 The Father's Position

[33] The father says that he should be granted leave to bring a status review application for the following reasons:

a) He has separated from the mother and plans to parent the child without her.

b) Justice Waldman found him to be a competent parent.

c) The child has not been adopted and should be placed with his biological parent.

d) The child will have the advantage of being raised in his own culture.

e) He will be a good parent for the child. He has obtained a college degree, has steady employment and can support the child.

[34] The court took this evidence into consideration in assessing the merits of the father's case and the best interests of the child.

5.4 The Child

[35] The child has resided in the same foster home since he was admitted to care in November, 2012.

[36] The child has been diagnosed with Autism Spectrum Disorder - Moderate Severity, with accompanying language impairment. The child has made significant gains in his foster home since he was admitted to the society's care.

[37] The child attended speech therapy from 2013 to 2016. There has been significant improvement in his speech.

[38] In July 2016, the child started ABA therapy and working with an occupational therapist.

[39] The father has had no contact with the child since 2014. The child does not know him.

[40] Due to the parents' appeals, the child was not free to be placed for adoption until January, 2016.

[41] The society faced some challenges placing the child for adoption due to his autism.

[42] The society has now approved an adoptive home for the child. The society plans to place the child with this family as soon as possible.

5.5 Justice Paulseth's Decision in the R.K. Case

[43] In March, 2016, the father brought a status review application regarding R.K. His reasons for why it was in R.K.'s best interests to be placed with him essentially mirrored his proposed claim in this case for the child.

[44] Since R.K. had not received continuous care from the same foster parent for two years prior to the application, the father was not required to seek leave to bring his status review application in that case.

[45] The trial regarding R.K. was heard over 4 days before Justice Paulseth. The father testified and had the opportunity to fully present his plan to care for R.K. Justice Paulseth dismissed the father's application.

[46] Subsection 50(1) of the Act permits the court to consider the reasons for decision of Justice Paulseth. This section reads as follows:

Evidence

Past conduct toward children

50. (1) Despite anything in the Evidence Act, in any proceeding under this Part,

(a) the court may consider the past conduct of a person toward any child if that person is caring for or has access to or may care for or have access to a child who is the subject of the proceeding; and

(b) any oral or written statement or report that the court considers relevant to the proceeding, including a transcript, exhibit or finding or the reasons for a decision in an earlier civil or criminal proceeding, is admissible into evidence.

[47] The more recent the reasons for decision, the more probative the findings in it become. (See my comments in Catholic Children's Aid Society of Toronto v. L.M., 2011 ONCJ 146).

[48] Justice Paulseth's findings have significant probative value in this case because:

a) She had the benefit of fully hearing the father's plan to care for R.K. and having it tested.

b) She had the benefit of hearing directly from the father and the opportunity to assess the reliability of his evidence.

c) Her findings are very recent. The trial was completed on November 4, 2016 and her decision was released on November 16, 2016.

[49] Justice Paulseth made the following findings that are relevant to this motion:

a) Although the father had been viewed by Justice Waldman as a competent parent, subject to his appreciation of the risk the mother posed and his angry and verbally aggressive behaviour towards her, as time passed, a more developed view of him emerged. The father was not able to set aside his anger and frustration with the hospital and the society to visit R.K. He did not appreciate R.K.'s special needs. He said he would seek a second opinion through his local community centre and day care about her needs, not necessarily a doctor who specialized in child development.

b) Despite the father's claims that he and the mother had separated in May, 2015, police reports confirmed that they were still very much together in December, 2015.

c) It was highly unlikely that the mother and the father had concluded their relationship. It is a very unhealthy relationship, characterized as recently as the fall of 2015 with ongoing loud disputes and the father's aggressive nature.

d) Police reports were filed showing:

i) On May 18, 2015, police were called to the hospital when R.K. was apprehended. The father was verbally aggressive and described the police and the society as racist.

ii) The hospital called the police on May 21, 2015 as the father was making angry phone calls and leaving messages accusing them of stealing his baby and selling them to a rich family.

iii) The police were called to the parents' apartment in August, 2015 (even though the father had claimed that the mother had left) due to a loud dispute between them.

iv) On November 22, 2015, the police were called to the same apartment by the mother, who felt threatened by the father. The father agreed to leave, after asking the police to investigate the mother's adultery.

v) On November 23, 2015, the police came to the apartment after a call about a loud argument between the parties. This time, the mother agreed to leave for the day.

e) The father did not see the role his anger and control issues had played in detracting from his plan for R.K.

f) The father was not credible. He lied about separating from the mother and gave inconsistent evidence about his housing.

g) The programs the father attended pre-dated the start of his status review application.

h) The father demonstrated little understanding about R.K.'s special needs and gave the court little confidence that he could meet them. The father did not agree with various health professionals that diagnosed R.K. with significant delays.

i) The father saw no challenge in suddenly placing R.K. in his care.

j) The father was not cooperative with the society. He refused to provide necessary disclosure relating to his immigration status and his lawsuit against the hospital where R.K. was born.

k) It was unlikely that the father would cooperate with a supervision order. He had not in the past. He let the mother care for the child on her own. He lied about their separation. He tried to avoid the society's family service worker by going to a society branch that wasn't servicing him. He tried to maintain that he hadn't received court documents at his home, when there was clear evidence that he lived there and had received them.

l) The father's current views were unrealistic, but unshakeable.

m) The father did not speak of R.K.'s interests, only his own.

n) It was in the best interests of R.K. to dismiss the father's status review application.

5.6 Has Anything Changed Since Justice Paulseth's Decision?

[50] The father did not demonstrate any change in his motion material since Justice Paulseth released her decision in November, 2016.

[51] The father has taken no programs to improve his parenting, deal with his anger and self-control or better understand the needs of the child since November, 2016.

[52] The father showed no insight in his evidence into the special needs of the child. As with R.K., he feels that everything will be fine when the child is placed in his care.

[53] The father provided scant detail of his plan to care for the child. A detailed and viable plan to care for a child is important evidence for the court to have on a leave motion for it to assess the merits of the proposed status review application.

[54] The father provided no further evidence about his relationship with the mother. He continued to maintain that they are separated.

[55] The father continues to demonstrate no insight into the protection concerns. He still denies or minimizes them. He shows no understanding of his role in his children being made crown wards. He continues to externalize all responsibility for the children becoming and remaining crown wards.

[56] The father is angry and litigious. He sued the hospital where R.K. was born, alleging that they conspired with the society to apprehend his child. This case was dismissed. He has brought a Human Rights complaint against the society. He has appealed three decisions regarding his children – to date without any success.

[57] The father, in his affidavit sworn on March 20, 2017 continues to dispute Justice Waldman's original decision and writes in paragraph 9 that if this motion is not granted:

It will generate more material evidence that will re-instate the Human Right Tribunal case file against the Society, its workers and their counsel even bring this family court for questioning in their practise. That is to say this court is misleading, Justice Waldman during the trial in 2014 asking father if willing to parent the child alone were misleading and illusory.

5.7 Purposes of the Act

[58] Subsection 1(1) of the Act sets out that the paramount purpose of the Act is to promote the best interests, protection and well-being of children. It is clear that section 1 of the Act and the timelines outlined in section 70 of the Act focus on early permanency planning and to avoid delays in litigation. See: Children's Aid Society of the Regional Municipality of Waterloo v. L.M., supra, par. 31.

[59] A child's need for permanency planning within a timeframe sensitive to that child's needs demands that the legal process not be used as a strategy to "buy" a parent time to develop an ability to parent. In child protection proceedings, the genuineness of an issue must arise from something more than a heartfelt expression of a parent's desire to resume care of the child. There must be an arguable notion discernable from the parent's evidence that he or she faces some better prospects than what existed at the time of the society's removal of the child from her care and has developed some new ability as a parent. See: Children's Aid Society of Toronto v. R.H..

[60] The best interests, safety and security of the child dictate that he be placed with a family for adoption as soon as possible.

5.8 Concluding Comments

[61] The father has not been able to demonstrate that a status review application would have any realistic chance of success. His case has no merit. In particular:

a) He has shown no change since his similar status review application regarding R.K. was dismissed by Justice Paulseth on November 16, 2016.

b) He has shown no understanding of the special needs of the child.

c) He has offered no plan to address the special needs of the child. His entire plan was vague and not in the child's best interests.

d) The child has not seen the father since October, 2014. They do not know each other.

e) The child has made significant gains in foster care. The child requires a skilled caregiver who can prioritize his needs. The father has not demonstrated that he has the ability to meet these needs. There is a significant risk that the child's gains would be compromised if the child was placed in the father's care.

f) He has no insight into the protection concerns and his role in the children coming into and remaining in care. He continues to externalize all blame. This makes him a poor candidate to change – increasing the risk to the child.

g) The father gave no indication that he would cooperate with a supervision order. This would be essential if the child was placed in his care. The father, instead threatens further legal proceedings if he does not get his own way.

h) The father has a history of being difficult and dishonest. Justice Paulseth made a finding that he is not a credible person. A supervision order could not be effectively monitored in these circumstances.

i) The risks of harm to the child of placing the child with the father remain unacceptably high.

j) The father demonstrated no unusual circumstances to justify granting the leave motion.

k) The child has a need for permanency. The child's permanent placement has been delayed far too long, to a large extent due the father's constant litigation.

l) It is not in the child's best interests to be placed with the father.

Part Six – Conclusion

[62] The father's motion for leave to bring a status review application is dismissed.

[63] Given the father's litigation history, it is likely that this decision will be appealed. This will further delay the child's future and compromise his ability to attach to a new family. This child needs to and deserves the opportunity to finally move forward with his life. He has a family waiting. It is hoped that the hearing of any appeal of this decision be expedited.

Released: April 10, 2017

Justice S.B. Sherr

Footnotes

[1] Many of these findings are summarized in paragraph 14 of the decision of Justice Paulseth, dated November 16, 2016.

[2] The child is bi-racial. The father is of Nigerian heritage and Muslim. The mother is Caucasian.

[3] Applied Behavioural Analysis