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
Date: November 21, 2017
Court File No.: C11053/17
Ontario Court of Justice
Between:
Catholic Children's Aid Society of Toronto
Applicant
- and -
R.M. and M.C.
Respondents
Counsel
Rachel Buhler, for the Applicant
Renata Kirszbaum, for the Respondent, R.M.
Aron David, for the Respondent, M.C.
Beth Purdon-McLellan, on behalf of The Office of the Children's Lawyer, for the children
Heard: November 16, 2017
Justice S.B. Sherr
Endorsement
Part One – Introduction
[1] The respondent R.M. (the father) has brought a motion to change the order of this court dated September 29, 2017 that gave temporary care and custody of his three children (the children) to D.S. (a community member); he seeks to have the temporary care and custody of the children given to him. In the alternative, he seeks to change the temporary order of this court dated August 10, 2017, by granting him extended unsupervised access with the children.
[2] Catholic Children's Aid Society of Toronto (the society) asks that the father's motion be dismissed.
[3] Counsel for the children, from the Office of the Children's Lawyer (the OCL), supports the society's position.
[4] The respondent M.C. (the mother) takes no position on the motion.
Part Two - Background
[5] The father and the mother are the parents of the children who are the subject of this protection application. The children are 10, 8 and 6 years old.
[6] The parents had a high-conflict relationship before the society's involvement. They were involved for several years in custody/access proceedings in this court under the Children's Law Reform Act.
[7] The mother breached several access orders and frustrated the father's relationship with the children. In 2012, she removed the children to Ecuador in contravention of the court's order and the whereabouts of her and the children were unknown. The father was granted a custody order.
[8] The children were removed from the mother's care by police when she returned to Toronto in August, 2014. They were placed with the father.
[9] The mother experienced significant mental health issues and has had limited contact with the children since they were removed from her care.
[10] The father has had an on again/off again relationship with D.S. since 2011. They resided in the same home until August 10, 2017.[1]
[11] The society has been involved with the family since 2009 and more intensively involved with them since 2015.
[12] The society issued this protection application on June 22, 2017. It sought an order that the children are in need of protection pursuant to clause 37(2)(b) (risk of physical harm) of the Child and Family Services Act (the Act).
[13] On June 27, 2017, Justice Carole Curtis made a temporary order placing the children in the father's care, subject to terms of society supervision. She ordered that the mother's access be in the society's discretion.
[14] On August 10, 2017, the court changed the temporary order after a motion brought by the society. The children were placed in the temporary care and custody of the society. The parents' access to the children was ordered to be in the society's discretion. For the father, he was to have access a minimum of twice each week, for two hours.
[15] The protection concerns identified by the society about the father included: inappropriate discipline of the children, his frequently yelling and screaming profanities at the children, inadequate supervision of the children, domestic conflict between him and D.S. in the presence of the children, possible substance abuse, his refusal to cooperate with the society and his breaches of Justice Curtis' supervision order.
[16] Three motions were before the court on September 27, 2017. The society moved to place the children in the temporary care and custody of D.S. The father moved to have the children placed in his temporary care and custody, or in the alternative, for expanded access. The mother moved for specified supervised access.
[17] On an unopposed basis, the children were placed in the temporary care and custody of D.S. on September 27, 2017, subject to society supervision. On a contested basis, the court ordered that the mother have access with the children a minimum of once each week for 90 minutes, supervised at the society's office – further access to be in the society's discretion.
[18] On consent, at the father's request, his motion to change the August 10, 2017 order was adjourned until November 16, 2017.
[19] The matter was then held down and the parties entered into a Statement of Agreed Facts. The requisite statutory findings were made about the children pursuant to subsection 47(2) of the Act and the children were found, on consent, to be in need of protection pursuant to clause 37(2)(g) (risk of emotional harm) of the Act. The issue of disposition remains outstanding.
[20] As of October 16, 2017, the society has increased the father's access from supervised to unsupervised in the community. His Saturday access visits have been increased from two hours to four hours.
[21] The society's Family Service Worker, Yogesh Patel, testified that the children are happy and comfortable with the father on the visits. He said that the father and the children are bonded with each other.
Part Three – Admissibility Issue
[22] At the outset of the motion, the society sought to introduce a fresh affidavit from Mr. Patel. The OCL supported the introduction of this affidavit. The father opposed its admission.
[23] The father had filed a supplementary affidavit for his motion, sworn on November 6, 2017. This affidavit set out a new plan for him to reside with his mother (the paternal grandmother). The society was entitled to respond to this affidavit. The issue was how long they waited to respond. Subrule 14(11.1) of the Family Law Rules states:
(11.1) – No Late Documents
No documents for use on the motion may be served or filed after 2 p.m. two days before the motion date.
[24] The late delivery of this affidavit was prejudicial to the father. He had little time to process its contents and prepare a response to the fresh allegations contained in it.
[25] There was no reason why the society couldn't have delivered the affidavit within the time required by the rules. To her credit, counsel for the society offered no excuse.
[26] In determining whether to admit evidence not in compliance with this subrule, the court must balance the prejudice to the father and the effect of cost and delay with the importance of receiving evidence about the best interests and safety of the children. Courts need to be sensitive to the fact that family law cases are not static and important evidence unfolds throughout the case. See: Nyari v. Velasco, 2008 ONCJ 272.
[27] When children are involved, if the evidence is relevant, necessary and probative to the matters in issue, the court should take an expansive and not a technical approach to its admission. See: Winton v. Lofranco, [2004] O.J. No. 3418 (SCJ). This principle certainly applies to child protection cases where courts are tasked with ensuring the safety, protection and best interests of children.
[28] The court reviewed Mr. Patel's affidavit and determined it was important to consider it. To address the prejudice to the father, the court offered him a few options, including: a short adjournment to provide responding material, with an obligation on the society to provide full file disclosure within 24 hours; the ability to cross-examine Mr. Patel in open court without reexamination and the opportunity for the father to give oral evidence without cross-examination. The matter was held down for the father to consider his options.
[29] The father decided not to adjourn the motion. Mr. Patel was cross-examined by the father's lawyer and the father gave oral evidence without cross-examination by the other parties. The parties then made submissions.
Part Four – The Legal Test to Change Temporary Orders During the Adjournment of a Protection Application
4.1 Review of the Case Law
[30] Section 51 of the Act contains provisions governing adjournments of protection cases, and orders of temporary care that may be made pending these adjournments. The scheme of section 51 is that the court should, pending a hearing, make the least intrusive order possible that is consistent with the protection of a child from a risk of likely harm, harm of the type referenced at section 37 of the Act. See: Catholic Children's Aid Society of Toronto v. A.M.O., 2011 ONCJ 703, per Justice Ellen Murray.
[31] Subsections 51(5) and (6) of the Act address the making of access orders and the changing of placement and access orders during the adjournment of a protection application. These subsections read as follows:
Access
(5) An order made under clause (2)(c) or (d) may contain provisions regarding any person's right of access to the child on such terms and conditions as the court considers appropriate.
Power to Vary
(6) The court may at any time vary or terminate an order made under subsection (2).
[32] Subsection 51(6) of the Act does not provide courts with any guidance about what legal test to apply to vary an order. This has led to conflicting case law and confusion over what legal test to apply when someone seeks to change a temporary placement or access order during the adjournment of a protection application.[2]
[33] In Catholic Children's Aid Society of Toronto v. L.F., [2002] O.J. No. 5120 (OCJ), Justice Heather Katarynych heard a motion to change the temporary placement of a child on the adjournment of a protection application. She wrote at paragraphs 8 to 11:
8 The power to vary an interim care order made for a child pending full disposition of a protection application is contained in subsection 51(6) of the Act.
9 On a plain reading of subsection 51(6), the discretion to vary an interim care order may be exercised "at any time". Nothing precludes variation of a "status quo" after a judicial finding of a child's need for protection and before final disposition of the case, nor would such restriction make common sense within the statutory scheme for the protection of children. As the Supreme Court of Canada has made clear, the circumstances of children and parents are always evolving and it is critically important that the court have the discretion to tune a child's custody and care to the particular circumstances bearing on that child and the reasons for the intervention of the child protection authorities into the life of the family.
10 No statutory criteria are provided for the exercise of the court's power to vary an interim order. It is an exercise of judicial discretion, dependent on a variety of factors, all of which must be brought to bear on the motion evidence to ascertain whether a variation of the "status quo" makes common sense within the statutory scheme provided by Part III of the Act for child protection.
11 In the circumstances of this particular motion, I considered the following factors:
the nature and extent of the variation sought;
the stage of the case in which the variation is sought;
the tiered considerations for interim custody orders set out in section 51 of the Act that parallel other provisions of the Act that endeavour to keep the level of intervention proportionate to the child's need;
the objectives set out in section 1 of the Act, chief of which is the court's duty to promote the best interests, protection and well-being of the particular child for whom the variation is sought.
the facts upon which the child's need for protection was found;
what each party has done over the course of the interim care order to further resolution of the outstanding protection application in a manner that has been faithful to the statutory prescriptions for decision-making about children entrusted to the society's interim care;
the extent to which the passage of time has yielded a fuller picture to the court about the child and the parent;
common ground that has emerged between the parties over the course of the case;
the time that has lapsed since the society's removal of the child from her mother's care, and the extent, if at all, to which it reflects inattention to the statutory timelines for decision-making and consequent litigation drift.
[34] Justice Susan Himel in Children's Aid Society v. E.L., [2003] O.J. No. 3281 (SCJ), heard an appeal of an order respecting the change in placement of children during the adjournment of a protection application. She wrote the following about subsection 51(6) of the Act at paragraph 42:
The statute does not provide that the moving party on a variation motion must demonstrate a material change in circumstances. However, in order to give effect to the statutory scheme and recognizing that stability and continuity for children is desirable, it is appropriate to impose a threshold test of material change in circumstances.
[35] In Children's Aid Society of Simcoe County v. B. (B.J.), 2005 O.J. No. 3907 (SCJ), the court added a second stage to the legal test to be met by the party moving to change a temporary order on adjournment in a protection application, finding that once a material change in circumstances was established, the court should conduct a best interests analysis.
[36] In Children's Aid Society of Toronto v. L.R. and M.R., 2007 ONCJ 706, [2007] O.J. No. 5512 (OCJ), the court found that the onus is on the moving party to establish a material change in circumstances before a temporary access order can be changed during the adjournment of a protection application. The court found that the bar for demonstrating a material change is not high. Fresh evidence can be introduced as long as it is material and relates to facts existing before the order was made that were not before the court, or facts arising since the order was made. In this case, the moving party did not establish a material change in circumstances and the motion was dismissed.
[37] Justice John Kukurin observed the following about subsection 51(6) variations in paragraph 32 of Children's Aid Society of Algoma v. A.D., 2010 ONCJ 760:
What is the upshot of this case law with respect to section 51(6) variations of temporary care and custody orders? It appears to be that the section 51(3) test is a factor but not a determinative one. It appears that the court must consider the best interests of the child in making its decision. It also appears that there may be other factors that the court may take into account besides those listed specifically in section 37(3) CFSA, provided that these have some relevance to the decision to be made. In short, once a sufficiently material change in circumstances is shown, pretty much anything can factor into the determination of whether there should be a change in temporary care and custody, and what that change should be. The court can order whatever it wants so long as it provides some reasonable reasons for doing so.
[38] In Children's Aid Society of Toronto v. K.D., 2011 ONCJ 55, Justice Robert Spence set out the following four-part test (the K.D. test) for motions brought under subsection 51(6) of the Act as follows:
Has there been a material change since the making of the previous temporary order?
If so, is that material change risk-based? In other words, is it a change that makes it either more likely, or less likely, to affect the risk of harm to the child?
If the material change is risk-based, is it significant enough to vary the child's placement, having regard to the length of time that the status quo has been in place and how soon trial is likely to occur?
In considering step number 3, is the requested variation proportional to the change in circumstances, having regard to the court's mandate to be guided by the paramount purposes, as stated in subsections 1(1) and (2) of the Act?
[39] Justice Spence wrote that these four steps are not individual factors to be weighed one against the other, or considered as a collective stew, but rather, a discrete step-by-step path to follow. If the court cannot answer "yes" to each of these steps then, in his view, it is not appropriate to move on to consider whether the court should exercise its judicial discretion in favour of the requested variation.
[40] Justice Spence also writes in paragraph 31:
31 As well, I wish to make it clear that given the foregoing statutory analysis, this approach pertains to any variation of a temporary placement order, irrespective of the fact that the society may have previously obtained a finding that the children are in need of protection. In other words, the fact of the finding in need of protection does not, by itself, change the test that the society must meet, as the order continues to remain "custody during adjournment".
[41] The K.D. case was about changing the temporary placement of a child during the adjournment of a protection application. The K.D. test has also been applied on motions to change temporary access orders under subsection 51(6) of the Act. See: Valoris for Children and Adults of Prescott-Russell v. C.T., 2015 ONSC 5390; Catholic Children's Aid Society of Toronto v. A.M.O., supra. And it has been applied in determining whether to vary temporary supervision terms. See: Children's Aid Society of Toronto v. M.R., 2015 ONCJ 196.
[42] In Children's Aid Society v. Y., M. & L., 2012 ONSC 2468, Justice Lydia Olah took a different approach to subsection 51(6) of the Act. She wrote that since subsections 51(3) and (6) of the Act do not refer to material change, this isn't the test to change an order; rather the society must satisfy the court at each stage of its involvement about the risk that the child is to suffer regardless of whether a material change in circumstances occurred. The court explicitly rejected the two-step approach (material change followed by best interests) applied in Children's Aid Society of Simcoe (County) v. B. (B.J.), supra.
[43] In Children's Aid Society of Algoma v. D.M., 2013 ONCJ 391, [2013] O.J. No. 3366, Justice John Kukurin also rejected the idea that once a material change in circumstances was established that the test under subsection 51(6) of the Act was best interests. He noted that best interests were part of the analysis, as were the purposes of the Act set out in section 1 of the Act. He wrote at paragraphs 17 and 18:
17 Ultimately, just about any factual circumstance, provided that it has some relevancy to the change in the temporary care and custody sought, can be considered by the court. The decision to make the change sought (or to make some other change), or to maintain the existing order, is an exercise of judicial discretion. Katarynych J. summarized the basis for the making of such decision quite nicely when she stated that the judicial function was "to ascertain whether a variation of the status quo makes common sense within the statutory scheme provided by Part III of the Act for child protection".
18 Implicit in any order for temporary care and custody is temporality. The fact that such orders are temporary is significant. Among the temporal factors are length of time that the status quo has existed (and why), the length of time before the case comes to trial, the length of time that the children have maintained contact with parents, and the point in time when the proposed change in temporary care and custody is to take place. There may be other temporally related considerations depending on the facts of a particular case. The court should remain cognizant of the overall context in which the variation claim is before the court. History of the parties, of the children, of the case itself may be significant factors that could be relevant to the motion.
[44] In Children's Aid Society of Algoma v. C.P., 2013 ONCJ 740, Justice Kukurin set out a less onerous variation test when changing temporary access orders (as opposed to changing temporary placement orders), where a protection application is on adjournment. Justice Kukurin found that the test for varying a temporary access order is set out in subsection 58(1) of the Act. There must be a comparison of the current situation to the situation at the time of the original order. The change does not necessarily have to be material but there needs to be a change in circumstances based on the best interests of the child.
[45] Justice Kukurin wrote again about the subsection 51(6) test on a motion to change a child's placement, or in the alternative for increased access, in Children's Aid Society of the Districts of Sudbury and Manitoulin, v. P.H., 2015 ONCJ 547. He comments at paragraphs 24 and 25:
24 What should the court be considering as its benchmark for deciding what order it should make? The provisions of s. 51(3) certainly seem to be pertinent. The society argues that the test is also one of what is in the best interests of the child. There is also the impact of s.1 of the CFSA, which applies throughout the statute, and sets out the paramount purpose, (which is expressed as a trinity of purposes), as well as additional purposes, provided that they are consistent with the paramount purpose.
25 The end result is that the criteria that apply to a variation of temporary care and custody are manifold and are not necessarily limited to looking at circumstances that date back only so far as the order which is sought to be varied.
[46] In Children's Aid Society of Toronto v. S.S., 2015 ONCJ 332, Justice Roselyn Zisman did not require the moving party to establish a material change in circumstances prior to changing a temporary access order during the adjournment of a protection application. Justice Zisman wrote at paragraphs 54 and 55:
54 The test for a change of temporary access, when a child is in the care of either the society or another person, is governed by subsection 51(6) of the Child and Family Services Act that provides that a court may at any time vary or terminate a temporary order for access. The test for temporary access is set out in subsection 51(2) that provides that the court may make an order for access that contains terms and conditions that the court considers appropriate. In determining what terms or conditions are appropriate, the court should consider the paramount purpose of the Child and Family Services Act, namely, 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. The court should consider the relevant factors set out in subsection 37(3) of the Child and Family Services Act,
55 In considering a motion to vary the terms of temporary access these same principles apply and in addition, the court should consider what changes have occurred since the temporary access order was made.
[47] An entirely different approach was taken respecting a request to change a temporary access order in Children's Aid Society of London and Middlesex v. T.R., 2016 ONSC 430. The court imported domestic case law about changing temporary orders, citing its decision in Miranda v. Miranda, 2013 ONSC 4704, where it wrote at paragraph 26:
[26] A party wishing to disturb an interim status quo or vary an interim order faces a strong onus to produce cogent and compelling evidence to show that the physical, mental and moral welfare of a child would be in danger in maintaining the status quo: McCarthy v. Scheibler, 1999 CarswellOnt 3419 (S.C.J.) at para. 14. Variation of interim custody and access orders will usually only succeed if a child is at risk, or for some other compelling reasons. There is a presumption in favour of the status quo absent compelling reason to change the status quo: Gusikoski v. Gusikoski, 2001 CarswellSask 323 (Sask. C.Q.B.) at para. 10. In Green v. Green, 2004 CarswellOnt 2322 (S.C.J.) at para. 14, Wood J. referred to the well founded reluctance by courts to vary interim orders on an interim basis and stated that an interim order should only be varied on an interim basis where the evidence establishes "clearly and unequivocally" that the present arrangement is not in a child's best interests. In Greve v. Brighton, 2011 ONSC 4996, 2011 CarswellOnt 8814 (S.C.J.), Ricchetti J., after reviewing various authorities, states at para. 24 that on a motion for an interim order to vary an existing interim order, the court should only do so where the moving party has demonstrated a change in circumstances as a result of which there are compelling reasons to vary the interim order to meet the child's best interests.
[48] Most recently, in Children's Aid Society of Toronto v. S.C., 2017 ONCJ 599, Justice Alex Finlayson distinguished between changing the temporary placement of a child and changing temporary access on the adjournment of a protection application. He applied the K.D. test through the lens of section 1 of the Act in determining whether he should change the child's temporary placement, but found that to change a temporary access order, only a sufficient (and not a material) change in circumstances needed to be established by the moving party, taking into consideration the primary and secondary purposes of the Act set out in section one.
4.2 Should There Be Separate Legal Tests to Change Temporary Placement Orders and Temporary Access Orders on the Adjournment of Protections Applications?
[49] It is apparent from the review of the case law above that some courts have applied the same legal test when changing temporary placement orders as when changing temporary access orders. See: Valoris for Children and Adults of Prescott-Russell v. C.T., supra; Catholic Children's Aid Society of Toronto v. A.M.O., supra; Children's Aid Society of London and Middlesex v. T.R., supra. This is understandable given that the starting point to change any temporary order during the adjournment of a protection application is subsection 51(6) of the Act.
[50] Other courts have applied a separate legal test for changing access orders. See: Children's Aid Society of Toronto v. S.C., supra; Children's Aid Society of Toronto v. S.S, supra; Children's Aid Society of Algoma v. C.P., supra.
[51] This court will follow the second line of cases. While there is no statutory guidance about the legal test to change a temporary placement order under subsection 51(6) of the Act, there is statutory guidance about the test to apply on changing a temporary access order. This helps inform the court that access change motions should be treated differently.
[52] Subsection 58(1) of the Act reads as follows:
Access Order
58(1) The court may, in the child's best interests,
(a) when making an order under this Part; or
(b) upon an application under subsection (2),
make, vary or terminate an order respecting a person's access to the child or the child's access to a person, and may impose such terms and conditions on the order as the court considers appropriate.
[53] Subsection 58(1) applies to any motion to vary an order respecting a person's access to a child. It is not limited to any particular stage of the proceeding. The court may make the order if it finds that it is in the child's best interests. The court may impose terms and conditions it considers appropriate.
[54] The court will elaborate on the importance of distinct legal tests below when reviewing the considerations to apply in changing a temporary access order.
4.3 What is the Legal Test to Apply on Changing a Temporary Placement Order During the Adjournment of a Protection Application?
4.3.1 Material Change
[55] The decision of Justice Himel in Children's Aid Society v. E.L., supra, was an appellate decision and is binding authority on this court. This means that the court must find a material change in circumstances since the making of the last court order before changing a temporary placement order during the adjournment of a protection application.
[56] The rationale for this approach is explained by Justice Spence in Paragraph 26 of K.D., where he writes:
…..The need for a material change in circumstances may seem like an "invented" test, but it makes good common sense, when one considers the importance of not lightly disrupting the status quo living arrangements for children, particularly when those living arrangements are stable and relatively risk-free.
[57] This court suggests that courts take a flexible approach in interpreting what constitutes a material change in circumstances. It also suggests taking a flexible approach about what factors will be considered when determining whether it should change the temporary placement order once the material change has been established. The court will set out a number of examples which demonstrate why it makes these suggestions in the paragraphs below.
[58] The initial stages of a protection application are often marked by a lack of information, and sometimes misinformation, about what is happening with a family. This is understandable. The society receives a call to assess protection concerns and often must react, knowing very little about the family. A temporary placement order will be made, often on imperfect evidence. The society will investigate further and learn much more about the family. Parents retain counsel and counsel may be ordered for the children. Counsel are able to gather further relevant evidence. The only change in circumstances when the case returns to court might be the presentation of evidence that might have been available, but hadn't been ascertained at the time of the original order. But, where appropriate, this newly obtained evidence should be enough to change a placement order.
[59] In some cases, a new family or community plan is presented at the time of, or shortly after, the first temporary placement order is made. It will usually be premature to place a child with this community or family member before the plan is properly investigated. Evidence is obtained about this plan and it sometimes will be appropriate for the court to change the placement order to place the child with this family or community member. Usually this will be a change in placement from society care, but it can also be a change in placement from another family or community member who it is determined does not have as close a relationship with the child. Again, the only real change in circumstances is the gathering of relevant evidence.
[60] If the new evidence points to making a different placement order, courts should not be restricted by an overly technical interpretation of material change to make the appropriate order.
[61] There will occasionally be situations where a child is in care and the parents are exercising very generous access – say each Friday after school until Monday morning. The parents then move to change placement and the society opposes. The only change in circumstances might be that the parents have maintained stable access over an acceptable period of time to the court. A rigid definition of material change should not preclude the court from making an order returning the child to the parents, if the court considers such an order to be appropriate. In this situation, the degree of material change required to change the order should be modest.
[62] On the other hand, if a parent seeks a return of the child and he or she has only been exercising access supervised for one hour each week, the material change required should be significant to change the order.
[63] This court supports the view of Justice Kukurin in Children's Aid Society of Algoma v. A.D., supra, that the change in circumstances required to change a temporary placement order should only need to be "sufficiently material". What change is sufficiently material will depend on the circumstances of the case.
4.3.2 Factors to Consider Once Material Change is Established
[64] The K.D. test will be very helpful for courts in determining whether to change a placement order in many situations – particularly where a child was apprehended from a caregiver and that caregiver seeks the return of a child. However, it won't be applicable to every situation where a placement change is sought.
[65] The K.D. test focuses on the change in risk to children. While this will be the emphasis in most cases, some motions to change placement have little to do with risk. For instance, take a situation where children have been apprehended from two parents because of severe drug addiction and are quickly placed with the maternal grandparents. Shortly after the placement order, the paternal grandparents step forward and ask that the children be placed with them, claiming that the children spend much more time with them. The society has no protection concerns about either set of grandparents. A risk-based test won't have much bearing on the evaluation of whether the placement should be changed.
[66] In other cases, risk may be reduced, but it may be in the best interests of a child to finish a school term and not have his or her placement disrupted.
[67] There are a myriad of situations that come before child protection courts and courts need to be flexible in their approach to address them appropriately. Risk will usually be an important consideration on a motion to change a child's placement, but it won't necessarily be the only consideration.
[68] This court suggests that judges conduct a contextual analysis when exercising their discretion as to whether a placement order should be changed during the adjournment of a protection application. The purposes in section 1 of the Act should always be at the forefront of the analysis.
[69] Justices Katarynch, Kukurin and Spence have set out many relevant considerations for courts to consider in determining motions to change placement in the cases set out above. This court will freely borrow from their decisions in suggesting this non-exhaustive list of factors for courts to consider, where relevant to the case:
The nature and extent of the variation sought and the proportionality of the requested change to the change in circumstances since the making of the last order. In particular, the court should examine the extent to which the passage of time has yielded a fuller picture to the court about the child, the parent or any family and community member involved with the family.
The degree to which the change in circumstances reduces or increases the risk of harm to the child.
The extent to which the proposed change meets the objectives set out in section 1 of the Act and the expanded objectives set out in section 1 of the Child, Youth and Family Services Act, 2017 (CYFSA), which is in Schedule 1 to Bill 89.[3]
The tiered considerations for temporary custody orders set out in section 51 of the Act that parallel other provisions of the Act that endeavour to keep the level of intervention proportionate to the child's need.
The best interest factors set out in subsection 37(3) of the Act and the expanded best interest factors set out in subsection 74(3) of the CYFSA.
When the trial of the case will take place. If the case will proceed to trial soon, the court needs to determine if the evidence of change is enough to change placement prior to a full testing of the evidence at trial. The risk is that the child's placement is changed just prior to trial and changed again after trial. This could cause considerable disruption to a child.
4.4 What is the Legal Test to Apply on Changing a Temporary Access Order During the Adjournment of a Protection Application?
[70] Justice Himel's decision in Children's Aid Society v. E.L., supra, was about a request to change a temporary placement order – not a temporary access order. Justice Himel did not have to, nor did she, address the access variation test set out in subsection 58(1) of the Act. This court is not bound by that decision and finds that it does not apply to cases where a party seeks to change an access order during the adjournment of a protection application.
[71] This court does not agree with the approach taken by the court in Children's Aid Society of London and Middlesex v. T.R., supra, where the court chose to import domestic case law to change a temporary order during the adjournment of a protection application. That decision sets too high a bar for a moving party to change a temporary access order in a child protection case.
[72] Child protection cases are qualitatively different than domestic cases. Domestic cases are private disputes. Child protection cases involve the intrusion of the state into the autonomy of family life. Parents in child protection cases have Charter protections under the Charter of Rights and Freedom. See: New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] S.C.J. No. 47; Catholic Children's Aid Society of Toronto v. J.R.C., 2015 ONCJ 729.
[73] In child protection cases, many of the objectives are different than in domestic cases. In domestic cases, the focus is on the best interests of the child. In child protection cases, that is an important consideration, but not the sole one. The Act contains purposes that include:
a) Recognizing that parents often need help in caring for their children;
b) The help provided should give support to the autonomy and integrity of the family unit;
c) The least restrictive or disruptive course of action that is available and is appropriate in a particular case to help a child or a family should be followed.
[74] When a family comes before a child protection court, the family is often in crisis. Many cases require restrictive access terms at the outset to ensure the protection of the child.
[75] In a constructive child protection case where it appears that the child is in need of protection, the risk concerns are clearly delineated for the parents and clear expectations are established to assist the parents in addressing them. The hard work that is required by the parents, the society, counsel and the court will then begin, to ensure that the parents have the best chance to reunify their family.
[76] This means that if a child is apprehended from a parent, the process of reunification, if done properly, often takes some time.
[77] It is imperative in this process that the initial access order not stay frozen until trial, unless it would be unsafe for the child to change it. Families sometimes fail in the reunification process because no steps were ever taken to change the original access order.
[78] The failure to change temporary access places a trial judge in a difficult predicament. The statutory time limit for a child to stay in society care set out in subsection 70(1) of the Act may have expired. This means that the child must either be made a crown ward or returned to a parent who might only have had supervised access for two hours once each week since the child was apprehended. Even if the access was positive, how can the judge confidently return the child to a parent if he or she does not even know that the parent can safely parent the child for a full day?
[79] In a constructive child protection case, access is constantly being re-evaluated. Where it can safely be done, access should be gradually increased. This not only improves the parent/child bond, but gives the court some basis to assess whether the parent is capable of parenting the child on a full-time basis. In child protection cases, full family reunification is often achieved one hour at a time.
[80] This means that if the level of access is in dispute, the court should be receptive to access change motions. The goal should be to gradually increase a parent's access. Material change or compelling evidence that is necessary for the child to make the change should generally not be required. The Act is remedial legislation. It would be contrary to the purpose of the Act to construct a legal test to change access that is too onerous for parents to meet, discourages them from moving to court to increase their access with the child and sets up more families to fail.
[81] The degree of change that the moving party will have to establish to change an access order should depend on the nature of the requested change and the risk concerns. If a parent wishes to increase access from fully supervised for one hour a week at the society offices to full weekends unsupervised, he or she will likely have to establish a very material change in circumstances. However, if the parent wishes to seek an increase of access from one hour supervised each week to two hours supervised each week, the change in circumstances required to change the order will likely be modest.
[82] The court agrees with Justice Finlayson in Children's Aid Society of Toronto v. S.C., supra, where he found that the moving party has the onus of establishing a sufficient change in circumstances to change the temporary access order during the adjournment of a protection application. He found that whether the change is sufficient to change the order and is in a child's best interests will depend on the circumstances of the case. A full contextual analysis should be conducted by the court to determine this.
[83] It is suggested that the court consider the following non-exhaustive list of factors, where relevant, in determining whether to change a temporary access order during the adjournment of a protection application:
The nature and extent of the variation sought and the proportionality of the requested change to the change in circumstances since the making of the last court order. In particular, the court should examine the extent to which the passage of time has yielded a fuller picture to the court about the child, the parent or any family and community member involved with the family.
The degree to which the change in circumstances reduces or increases the risk of harm to the child.
The extent to which the proposed change meets the objectives set out in section 1 of the Act and the expanded objectives set out in section 1 of the CYFSA.
The best interest factors set out in subsection 37(3) of the Act and the expanded best interest factors set out in subsection 74(3) of the CYFSA.
The importance of:
a. Ensuring that access not remain static unless the safety of the child requires this;
b. Gradually and safely increasing access between a child and the parents; and
c. Providing the court with some basis to assess the parent's long-term parenting potential.
The stage of the proceeding. Is a trial that will determine the issue imminent? If so, it might be in the best interests of the child to have the trial judge determine the issue.
4.5 Summary of Legal Tests
[84] The court will apply the following legal test to change a temporary placement order during the adjournment of a protection application:
a) The moving party has the onus of first establishing a material change in circumstances since the making of the last court order.
b) The court should take a flexible approach in determining what constitutes a sufficiently material change in circumstances. What is sufficiently material will depend on the circumstances of the case.
c) Once a material change in circumstances is established, a contextual analysis should be conducted by the court to determine if the placement order should be changed. The purposes in section 1 of the Act should always be at the forefront of the analysis. The suggested, non-exhaustive list of factors set out in paragraph 69 above should be considered, where relevant.
[85] The court will apply the following legal test to change a temporary access order during an adjournment of a protection application:
a) The moving party has the onus of establishing that a sufficient change in circumstances has taken place since the making of the last court order. Whether the change is sufficient to change the order will depend on the circumstances of the case.
b) The court should conduct a contextual analysis when exercising its discretion as to whether it is in a child's best interests to change the access order, and if so, what terms and conditions are appropriate. The purposes in section 1 of the Act should always be at the forefront of the analysis. The suggested non-exhaustive list of factors set out in paragraph 83 above should be considered, where relevant.
[86] The court will now apply these legal tests to the father's motion.
Part Five – The Father's Plan
[87] The father moved into the paternal grandmother's home on October 10, 2017. He plans to have the children live with him there. This is a 3-bedroom home. There is suitable room for the children to live there.
[88] The father is presently unemployed and is being supported by his family.
[89] The father proposes to enroll the children in a school that is a 5-minute walk from his home. He says that there is a YMCA daycare located in the school. He has already checked and there is space for the children to be involved in the daycare's before and after school programs.
[90] The father said that he has attended 7 out of 12 sessions of a parenting/anger management program at Tropicana Services. He deposed that this program is helping him manage his anger and he has already applied techniques learned in the program in managing the children's behaviour.
[91] The father is seeking a referral for a psychiatric assessment from his family doctor at the society's request.
[92] The father stated that he acknowledges the protection concerns and says he is committed to addressing them. He said that he has been cooperative with the society since the children were removed from his care.
Part Six – The Position of the Society and the OCL
[93] The society and OCL oppose the father's motion.
[94] The society acknowledged that the father's cooperation has improved and that he is having positive visits with the children. However, it submits that the father's gains are recent and he still has work to do to address the protection concerns before the children can be safely placed in his care.
[95] The children have expressed fears about living with the father. They are concerned about his yelling and swearing at them. The OCL advised the court that the children want to eventually return to the father's care, if he can control his anger.
[96] The children have stated that they are happy living with D.S. They are enjoying their school and friends and don't want to change schools. At this time, they wish to remain in her care.
[97] D.S. has arranged trauma counseling for the children at Aisling Discoveries. The society and OCL feel this is important for them and it is important for the children to remain in the care of D.S. during this process.
[98] The children are also expressing fears of the paternal grandmother. They have reported that in the past she has used inappropriate physical discipline on them, locked them in a dark room when they weren't behaving, was mean to them and did not give them enough food.[4] They have expressed that they do not want to live with her.
[99] The father testified that he had been aware of the children's complaints about the paternal grandmother. He was vague about the nature of the complaints. However, they were serious enough that the father stated that he immediately found new accommodation for the children. He testified, "when I found out about the accusations, I moved".
[100] The father promises not to leave the children alone with the paternal grandmother.
[101] Both the society and the OCL expressed concern that the children's sense of security would be significantly disrupted if their placement and school were changed again.
Part Seven – Analysis
7.1 Placement
[102] The evidence does not support an order returning the children to the father at this time.
[103] The protection concerns are and remain significant. The children were found at risk of emotional harm in the father's care. The father had been overwhelmed in caring for them. He couldn't manage his anger and frequently yelled and screamed at them. He exposed the children to domestic conflict. He did not consistently provide adequate supervision for them. They did not feel emotionally safe in his care. It is noteworthy that the children continue to express that they do not want to live with the father at this time.
[104] The removal of the children from the father's care is recent – August 10, 2017.
[105] The father initially minimized or denied the risk concerns. He was hostile and uncooperative with the society. His issues with anger management are long-standing and will not likely disappear quickly.
[106] As recently as September 2, 2017, there was an incident of conflict between the father and D.S., where allegedly the father became drunk and accosted D.S. at a wedding.
[107] The father is now just starting to address the risk concerns and gaining insight into his challenges.
[108] The father's access with the children has been positive. However, this access has taken place in a strictly controlled environment. He has only had only two weeks of limited unsupervised access. There is a big difference between managing your temper during a brief period of time and managing it over an extended period of time when dealing with the inevitable frustrations and challenges of parenting three active children. The risk of harm to the children is too great to jump to a return of them to the father's care before determining if the father can first manage his anger and parent adequately over longer periods of time. Supervision terms are still inadequate at this time to protect the children from harm.
[109] The father has not been able to provide a stable plan at this time. The father moved from the residence he was sharing to the home of a friend at the start of September, 2017. He then moved in with his brother. His initial plan was to find his own apartment, as his brother was in the process of selling his home. He planned to live with his brother until the sale. He advised the society on November 6, 2017 that this plan had changed and he now plans to live with the children at the home of the paternal grandmother.
[110] The father's plan to live with the paternal grandmother is problematic. The children have bad memories of living with her and have expressed fear of living with her. It is premature to place the children in her home before she meets with the society and her relationship with the children is properly assessed.
[111] The father is also unstable financially. He stopped working and went on Ontario Works. However, his Ontario Works payments have stopped as he is under investigation by them. The father is being supported by family members.
[112] The children have experienced considerable disruption in their lives. They experienced the high conflict between their parents. The mother frustrated their relationship with the father when they were younger. They were taken to Ecuador by the mother and didn't see the father for about two years. They lived with the mother who began experiencing mental health challenges. They were eventually removed from her care and placed with the father. Then, this year they were placed in society care and then moved again to live with D.S. These children are at high risk of suffering emotional harm if they are moved yet again to the father and that placement breaks down.
[113] The children enjoy their school and friends. It has been their only source of stability. They do not want to change schools. That view should be given considerable respect at this time. Realistically, the father is going to need more time to work on his challenges and consideration should be given to letting the children remain in their school for the balance of the school year.
[114] The children are happy and functioning well living with D.S. They have a close relationship with her and want to live with her at this time. She is responsibly attending to all of their needs. They should continue to live with her.
[115] The court has some concern that the father lacks respect for D.S. His submission was that his relationship with her is over. She was described as vindictive and vengeful, without the children's interests at heart. There is a risk that he will undermine the children's relationship with her and their fragile sense of security. This will need to be carefully monitored.
[116] The court wishes to make it very clear to the father that criticizing D.S. to the children in any way risks emotionally harming them and any such conduct will be treated very seriously by the court. The court will be observing the father closely to see if he can exercise good judgment and place the children's needs ahead of his anger at D.S.
[117] The father's participation in the Tropicana program is encouraging. It would be helpful for the court to receive evidence from Tropicana about the father's participation in the program, his level of engagement and what he has learned.
[118] The father is also working with the Canterbury Clinic to deal with his substance use. It will be helpful to get a report from the clinic about the father's participation in the program and his level of engagement.
[119] It would also be helpful for the father to obtain the psychiatric assessment sought by the society to assess if there is an underlying reason for his difficulty in managing his anger.
[120] There will be no change to the placement order.
7.2 Access
[121] The father made an alternative request to increase his access.
[122] The society opposed the motion. They also asked for a term that any access not take place in the paternal grandmother's home. The OCL supported unsupervised access but did not make submissions about terms.
[123] The court finds that there has been a sufficient change in circumstances to change the temporary access order regarding the father and the children. The positive changes are as follows:
a) The father's cooperation and communication with the society is much improved. One example is that when asked by Mr. Patel to transfer the Child Tax Benefits to D.S., the father immediately did this.
b) The father is beginning to demonstrate some insight into the protection concerns. He has acknowledged that his anger issues and volatile relationship with D.S. were emotionally harming the children. He admits that his physical discipline of the children was inappropriate.[5] This insight improves the father's chances of making and sustaining meaningful changes in his life.
c) The father has engaged with services to address the protection concerns. He is participating in the Tropicana anger management and parenting programs.
d) The father's access visits have been positive. The children are not reporting angry outbursts or physical discipline by him and are enjoying their time with him. The children have been observed to have a close bond with the father.
e) The court has noted improvements in the father's presentation at court. He initially appeared agitated, defiant and overwhelmed by his situation. He is now appearing calmer, relaxed and well-groomed. He appears motivated to make the necessary changes in his life to parent the children.
[124] The goal in this case should be to reintegrate the children with the father as he continues to consolidate his gains. This should be done gradually to ensure the success of this process. The court needs to evaluate how the father and children respond to each stage of access as it increases.
[125] The court finds that it is in the best interests of the children to increase their access with the father and will order that these increases take place gradually over the next few months. On the return date, the court will evaluate whether access should be further increased.
[126] The court will maintain two visits each week between the children and the father. One visit will involve exchanges at the society's office so that the society can evaluate the interaction between the father and the children. The duration of the Saturday visits will be gradually increased leading to single overnight visits. An additional holiday overnight visit will also be ordered.
[127] The court will not prohibit the father from exercising access in the paternal grandmother's home. It is his plan to live with her and the society needs to observe her interaction with the children to determine if this will be a viable long-term plan. Their contact with her will start slowly.
[128] The order will also set out that the paternal grandmother shall not be left alone with the children. This should be sufficient to protect the children physically and emotionally at this time. This term can be reevaluated in the future after further assessment of the relationship between the paternal grandmother and the children.
Part Eight – Conclusion
[129] A temporary order shall go on the following terms:
a) The children shall remain in the temporary care and custody of D.S.
b) The father shall have access to the children on the following terms and conditions:
One weekday each week for two hours, with exchanges to take place at the society offices. The times and dates to be agreed upon by the father, the society and D.S.
Starting on November 25, 2017, each Saturday from 10:00 a.m. until 4 p.m.
Starting on December 9, 2017, each Saturday from 10:00 a.m. until 6 p.m.
Starting on December 23, 2017, each Saturday from 10:00 a.m. until Sunday at noon.
December 26, 2017 from 10:00 a.m. until December 27, 2017 at noon.
Starting on January 6, 2018, each Saturday from 10:00 a.m. until Sunday at 6 p.m.
The father shall advise the society where the children will be sleeping on overnight visits.
The father shall ensure that he does not leave the paternal grandmother alone with the children.
The society may make announced or unannounced visits during the father's access.
The father shall sign any necessary consents for the society to speak directly with his service providers.
The father shall not criticize or demean D.S. in the presence of the children.
The father shall not take any non-prescription drugs or consume alcohol during or within 12 hours before any access visit.
[130] The case shall return to court on February 12, 2018 at 10:00 a.m. for a case conference.
[131] The father is expected to do the following by the return date:
a) Provide the court with a report from Tropicana about his participation in and engagement with the program.
b) Provide the court with a report from the Canterbury Clinic about his participation and engagement with the clinic.
c) Update the court on the status of his obtaining a psychiatric assessment.
[132] The society is expected to do the following by the return date:
a) Circulate to counsel a draft Statement of Agreed Facts regarding disposition at least 3 weeks before the return date.
b) Speak to the father's counselor at Tropicana about his progress.
c) Speak to the Canterbury clinic about the father's progress.
d) Speak to the paternal grandmother to address the protection issues between her and the children and determine what steps she is willing to take to ensure that the children are physically and emotionally safe in her care.
e) Observe the paternal grandmother and the children together on at least two visits.
f) Direct the paternal grandmother to services to assist her in her relationship with the children.
[133] On the return date, the mother's and father's progress with the children, increased access and the disposition of the protection application will be discussed.
[134] The court thanks all counsel for their helpful submissions.
Released: November 21, 2017
Justice S.B. Sherr
Footnotes
[1] The father claims that they were in a landlord/tenant relationship and D.S. provided daycare for the children in the last few years of their relationship.
[2] This subsection has not been changed in the new child protection legislation, Supporting Child, Youth and Families Act, 2017 (Bill 89), which is expected to be proclaimed in April, 2018.
[3] While the court is not yet statutorily mandated to consider the additional purposes and best interests factors set out in the CYFSA, they are still helpful considerations for the court.
[4] These incidents allegedly happened a few years ago.
[5] The physical discipline involved spanking.
