WARNING

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

This is a case under Part III of the Child and Family Services Act and is subject to subsections 45(8) of the Act. This subsection and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply with subsection 45(8), read as follows:

45.— (8) No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.

85.— (3) A person who contravenes subsection 45(8) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Court Information

Ontario Court of Justice

In the Matter of the Child and Family Services Act, R.S.O. 1990, c. C.11

Between:

Children's Aid Society of Algoma (Elliot Lake) Anthony Maratto, for the Society

— And —

P.C.-F. Douglas Kearns, for mother P.C.-F.

A.F. Self-represented, Father

Heather Mendes, Office of Children's Lawyer Counsel for the children

Heard: October 24-27, 2017

Justice: Kukurin J.

Reasons for Decision

[1] Introduction

The following Reasons deal primarily with the issue of what test the court applies on a status review application brought under the Child and Family Services Act (the "CFSA").

Litigation History

[2] Initial Apprehension and First Protection Order

On November 28, 2014, the applicant Children's Aid Society of Algoma apprehended two children who were in the custody and care of their mother in Elliot Lake. The society commenced a child protection application relying on grounds of risk of physical harm under s.37(2)(b)(i) and (ii) of the CFSA, and sought an order for temporary wardship. The mother was successful in having the children returned on an interim basis by the end of July 2015, and the society eventually obtained, on consent of the mother, a finding on the grounds relied upon, and a final protection order on August 24, 2015 placing the children with their mother subject to a supervision order for 12 months. This order also provided for access to the father of the children, who resided in Speers, Saskatchewan, such access to be subject to the wishes of the children. This included telephone access as well.

The factual basis for the removal of the children was general neglect demonstrated by poor hygiene, dirty and ill-fitting clothing often worn over several days, bodily uncleanliness, truancy and tardiness at school, as well as household standards that were, at times, described as abysmal. This was not a constant state of affairs, as the mother had been cautioned by the society worker(s) to get her house and her children in order, and she did, but simply could not maintain her progress. At that time, the mother had a number of problems impeding her parenting and homemaking.

[3] Second Apprehension and Status Review Application

On June 7, 2016, during the currency of the supervision order, the society once again apprehended the children. It started a status review application under s. 64(2)(a) of the CFSA in which it was seeking to have the children placed with their father in Saskatchewan subject to a 12-month supervision order, with conditions. It also sought an order for access to their mother, also with conditions relating to such maternal access.

The children were initially placed in foster care, but, by an interim order dated October 31, 2016, they were placed in the interim care and custody of their father and travelled out to Saskatchewan where they continue to reside. This order also provided for interim maternal access, subject to supervision in the discretion of the society. By a later order dated February 27, 2017, the mother's interim access was varied to permit her larger blocks of unsupervised access at the home of the maternal grandparents of the children located at Whitefish, Ontario. The mother did, in fact, exercise a week or so of access there, as well as a week or so later on when the children were exchanged in Thunder Bay (an approximate halfway point).

[4] Status Review Hearing

It is this status review application that is before the court for hearing and adjudication. It is contested by the mother who wants her children returned to her. The society, the father and counsel for the children are all aligned against her.

The Statutory Law

[5] Section 64(2) - Application for Review of Child's Status

The society has chosen to commence its status review prior to the expiry of the current order as it has a right to do under s.64(2)(a) CFSA. This section provides for a review of the "child's status".

S.64(2) The society having care, custody or supervision of a child,

(a) may apply to the court at any time for a review of the child's status;

The first question is – what is the "child's status" at the time the society sought to review it? The answer is that the 'status' is one in which the children are in a 12-month, time-limited, care and custody of their mother, but subject to a number of conditions, and also subject to a supervision order in favour of the society. In addition, her care and custody is subject to the access rights granted to the father.

[6] Section 64(8) - Interim Care and Custody

There is a provision in s. 64(8) CFSA that permits a change in the placement of the child until the final disposition of the status review application.

S.64(8) If an application is made under this section, the child shall remain in the care and custody of the person or society having charge of the child until the application is disposed of, unless the court is satisfied that the child's best interests require a change in the child's care and custody. 2006, c. 5, s. 22.

The society did bring a motion and did obtain an initial "without prejudice" order from the court authorizing interim care and custody to the society. The motion was finally decided on October 31, 2016, almost five months after this second apprehension, and it changed the interim placement to the father.

[7] Section 65 - Court's Powers on Status Review

Section 65 CFSA provides the court with authorization on what it is empowered to do on a status review application.

S. 65(1) Where an application for review of a child's status is made under section 64, the court may, in the child's best interests,

(a) vary or terminate the original order made under subsection 57(1), including a term or condition or a provision for access that is part of the order;

(b) order that the original order terminate on a specified future date;

(c) make a further order or orders under section 57; or

(d) make an order under section 57.1. R.S.O. 1990, c. C.11, s. 65(1); 2006, c. 5, s. 23(1).

[8] Alternative - Dismissal of Application

A further choice, although not specified in this subsection, is to do nothing at all but simply return the children to the mother. In short, to dismiss the status review application.

[9] Best Interests Test

There are, somewhat surprisingly, no specific criteria in the CFSA to guide the court on which of the above options it should choose. However, this is not entirely true as it is abundantly clear from the above subsection 65(1) that whatever order the court makes, it must be one that is "in the child's best interests." Whenever a court is required to apply the child's best interests in making a determination or a decision, it must apply s. 37(3) CFSA in doing so.

[10] Section 37(3) - Best Interests Considerations

Section 37(3) sets out a non-exhaustive list of circumstances that the court is statutorily required to consider, provided that they are relevant in the case before it:

S. 37(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall take into consideration those of the following circumstances of the case that he or she considers relevant:

1. The child's physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.

2. The child's physical, mental and emotional level of development.

3. The child's cultural background.

4. The religious faith, if any, in which the child is being raised.

5. The importance for the child's development of a positive relationship with a parent and a secure place as a member of a family.

6. The child's relationships and emotional ties to a parent, sibling, relative, other member of the child's extended family or member of the child's community.

7. The importance of continuity in the child's care and the possible effect on the child of disruption of that continuity.

8. The merits of a plan for the child's care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent.

9. The child's views and wishes, if they can be reasonably ascertained.

10. The effects on the child of delay in the disposition of the case.

11. The risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent.

12. The degree of risk, if any, that justified the finding that the child is in need of protection.

13. Any other relevant circumstance. R.S.O. 1990, c. C.11, s. 37(3); 2006, c. 5, s. 6(3); 2016, c. 23, s. 38(18).

[11] Section 1 - Paramount Purpose of the CFSA

One final guide that is not restricted to only Part III of the CFSA [Part III deals with child protection and it is this Part that the provisions for status review are found], but pervades the entire statute, is in section 1. This sets out the paramount purpose of the CFSA and also sets out additional purposes where they are not inconsistent with the paramount purpose.

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

S.1(2) The additional purposes of this Act, so long as they are consistent with the best interests, protection and well-being of children, are:

1. To recognize that while parents may need help in caring for their children, that help should give support to the autonomy and integrity of the family unit and, wherever possible, be provided on the basis of mutual consent.

2. To recognize that the least disruptive course of action that is available and is appropriate in a particular case to help a child should be considered.

3. To recognize that children's services should be provided in a manner that,

   (i) respects a child's need for continuity of care and for stable relationships within a family and cultural environment,

   (ii) takes into account physical, cultural, emotional, spiritual, mental and developmental needs and differences among children,

   (iii) provides early assessment, planning and decision-making to achieve permanent plans for children in accordance with their best interests, and

   (iv) includes the participation of a child, his or her parents and relatives and the members of the child's extended family and community, where appropriate.

4. To recognize that, wherever possible, services to children and their families should be provided in a manner that respects cultural, religious and regional differences.

5. To recognize that Indian and native people should be entitled to provide, wherever possible, their own child and family services, and that all services to Indian and native children and families should be provided in a manner that recognizes their culture, heritage and traditions and the concept of the extended family. 1999, c. 2, s. 1; 2006, c. 5, s. 1; 2016, c. 23, s. 38(1).

[12] Section 57 - Protection Orders

Ultimately, the status review court must do something. What that something may turn out to be is governed by s.65(1) CFSA as set out above. However, that subsection permits the court to make further (protection) orders under s.57 or to make an order (for deemed custody and access) under s.57.1. Under s.57, there are four alternative options under subsection (1) and, perhaps a fifth under subsection (9).

s. 57(1) Where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders or an order under section 57.1, in the child's best interests

Supervision order

1. That the child be placed in the care and custody of a parent or another person, subject to the supervision of the society, for a specified period of at least three months and not more than 12 months.

Society wardship

2. That the child be made a ward of the society and be placed in its care and custody for a specified period not exceeding twelve months.

Crown wardship

3. That the child be made a ward of the Crown, until the wardship is terminated under section 65.2 or expires under subsection 71(1), and be placed in the care of the society.

Consecutive orders of society wardship and supervision

4. That the child be made a ward of the society under paragraph 2 for a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding an aggregate of twelve months. R.S.O. 1990, c. C.11, s. 57(1); 2006, c. 5, s. 13(1-3).

S.57(9) Where the court finds that a child is in need of protection but is not satisfied that a court order is necessary to protect the child in the future, the court shall order that the child remain with or be returned to the person who had charge of the child immediately before intervention under this Part. R.S.O. 1990, c. C.11, s. 57(9).

[13] Section 57.1 - Deemed Custody and Access Orders

Under s.57.1 CFSA, the court can make what is commonly referred to as a deemed custody and access order:

S.57.1(1) Subject to subsection (6), if a court finds that an order under this section instead of an order under subsection 57(1) would be in a child's best interests, the court may make an order granting custody of the child to one or more persons, other than a foster parent of the child, with the consent of the person or persons. 2006, c. 5, s. 14.

[14] Guidance from Case Law

From a statutory point of view, the best interests considerations and the overarching purposes underlying the statute are the only guides that the legislature provides to the court in making its decision in a status review case. However, there is a body of case law that has emerged that also bears on what the court is to do. Not surprisingly, this jurisprudence is not totally consistent.

The Case Law

[15] Supreme Court of Canada - Catholic Children's Aid Society v. C.M.

The status review application is created by the CFSA. What is its reason for being? The Supreme Court of Canada declared in Catholic Children's Aid Society of Metropolitan Toronto v. C.M. in 1994:

Once a finding of the need for protection has originally been made, there is still the requirement, upon a status review, to consider whether the child is or is no longer in need of future protection. Children's needs are continually evolving and these ever-changing circumstances must be taken into account. The courts must continually evaluate the need for state intervention in order to insure that the objectives of the Act are being met.

[16] Previous Finding Not to be Retried

As for the previous finding that the child was in need of protection, the court said:

It is clear that it is not the function of the status review hearing to retry the original need for protection order. That order is set in time and it must be assumed that it has been properly made at that time.... The question to be evaluated by courts on status review is whether there is a need for a continued order for protection.

[17] Two-Part Test from Supreme Court

To reiterate the final appellate decision on what the status review court was to do:

The examination that must be undertaken on a status review is a two-fold examination. The first one is concerned with whether the child continues to be in need of protection and, as a consequence, requires a court order for his or her protection. The second is a consideration of the best interests of the child, an important and, in the final analysis, a determining element of the decision as to the need of protection. The need for continued protection may arise from the existence or the absence of the circumstances that triggered the first order for protection or from circumstances which have arisen since that time.

This is the two-part test that the Supreme Court of Canada set out, in what is fairly clear language, as the task of the status review court. It has not, as yet, reversed itself on this and has not set out any new test that supersedes this one. It would seem to be binding provided that the legislation under which it was setting forth this test remains the same.

[18] Caveat - Repeal of Section 65(3)

There is one caveat with this case, namely that it refers to the court's requirements under s.65(3) CFSA in determining what is the proper disposition to make. However, s.65(3) was repealed in 2000 and so was not in effect for cases that postdated the repeal. The repealed s.65(3) provided:

S.65(3) Before making an order under subsection (1), the court shall consider,

(a) whether the grounds on which the original order was made still exist;

(b) whether the plan for the child's care that the court applied in its decision is being carried out;

(c) what services have been provided or offered under this Act to the person who had charge of the child immediately before intervention under this Part;

(d) whether the person is satisfied with those services;

(e) whether the society is satisfied that the person has co-operated with the society and with any person or agency providing services;

(f) whether the person or the child requires further services;

(g) whether, where immediate termination of an order had been applied for but is not appropriate, a future date for termination of the order can be estimated;

[19] Post-2000 Amendments - Shift to Best Interests Test

There are decisions subsequent to the decision in C.M. which suggest that the test is not a two-part test any longer. It is just a one-part test, and that test is the best interests of the child test. In Catholic Children's Aid Society of Hamilton v. M.A.M. [2003] O.J. No. 1274, the court spoke of the 2000 amendments to the CFSA, and specifically to the repeal of s.65(3) CFSA. Stashyn J. noted that the repeal of s.65(3) was consistent with the overall thrust of the 2000 amendments, namely to focus "the Court's attention on the child in preference to the parent".

[20] Ontario Court of Appeal - Children's Aid Society of Oxford County v. W.T.C.

A decade later, in the 2013 case Children's Aid Society of Oxford County v. W.T.C. 2013 ONCA 491, [2013] O.J. No. 3438, The Ontario Court of Appeal said of the first part of the two-part test in C.M.:

"We do not accept the mother's interpretation of C.M., namely, that the first step of the test requires the status review judge to determine whether the child continues to be in need of protection as that term is defined in s. 37(2) of the CFSA"

The court of Appeal, in the W.T.C. decision referred to the shift in the jurisprudence since the 2000 amendments and "about the case law from lower courts and commentary suggesting that those amendments may have resulted in a shift from the two-step C.M. test to a pure best interests test."

In fact, the court of appeal said that a close reading of the C.M. decision makes it clear that a finding of continuing need of protection at a status review could be premised on the need to protect the child from emotional harm "arising from removing the child from caregivers to whom the child had become attached and whom the child regarded as psychological parents". The caregivers that the court was referring to in this decision were the caregivers with whom the child had been placed by the society after society intervention in the family, namely the foster parent family.

[21] Flexibility in Grounds for Continued Protection

This is fairly clear appellate guidance that regardless of what the grounds under s.37(2) were on which the initial finding was made that a child was in need of protection, and regardless of the factual basis for those findings, whether those grounds and facts continued at a status review is not determinative of what the status review court may or must do. In particular, if the society was unable to prove that the child was in continuing need of protection on the initial grounds, this did not mean that the child would automatically be required to be returned to the person or parent who had charge prior to removal. It was open to the society to show continued need for protection on some other ground specified in s.37(2) CFSA, or to show a continued need on some factual basis not even set out in s.37(2) CFSA.

[22] Clarification of Status Review Court's Concern

In a more recent decision, Chappel J. clarified what should be the court's concern in a status review determination. In confirming the C.M. rationale of the two-part test, she stated that the status review court has to engage in:

"an analysis of whether the child continues to need protection is necessary having regard for the broad objectives of the CFSA, which seek to strike a balance between the best interests of the child and the need to prevent unwarranted state intervention in family life.." and that "... the child welfare agency involved must justify ongoing state intervention in the life of the family by proving that a court order continues to be necessary to protect the child in the future.

[23] Inquiry into Continued Need for Protection

As for what the court's inquiry into the child's continued need of protection entailed, Chappel J stated:

"...the inquiry into the child's continued need for protection involves more than simply analyzing the events and concerns that triggered the child welfare intervention in the first instance and determining if those concerns persist. Rather, the issue must be assessed from the perspective of both the child and the parents, taking into account the reality that the needs and circumstances of both evolve continually. A finding that the child continues to require protection can be based on ongoing concerns respecting the parents' ability to meet the child's needs, or for reasons unrelated to the parties' parenting, such as concern about the effects of removing the child from a long-term caregiver who is able to present a permanent plan.

[24] Summary of Status Review Jurisprudence

What can be gleaned from the case law about status reviews is the following:

1. The court has to determine if the child still requires protection of the court.

2. The protection need may be for the same reason(s) that gave rise to the initial finding that the child was in need of protection.

3. The protection need may equally be for a different reason than that on which the previous finding was made, but still one related to a section 37(2) CFSA grounds.

4. The different reason may be one that is not a reason that would support a finding under any of the clauses in s.37(2) CFSA. It could be unrelated to s.37(2) CFSA.

5. If the court is satisfied that the child is no longer in the continued need of a protection order, this does not automatically mean that the child is returned to the person who had care and custody under the previous protection order.

6. If there are other claimants for care and custody, the court has to consider placement and make its determination in the best interests of the child. This would apply whether the child needed continued protection or whether the child did not.

7. The best interests of the child involves a much broader analysis in terms of placement and must be assessed from the perspective of both the child as well as the care and custody claimant.

Family History and Background – Findings of Fact

[25] Factual Findings

This is not a case where there is total agreement on the factual history of the family. The parties put their own spin on what took place at various places along the timeline. The society's evidence is mostly hearsay on what took place in the past, but the parents are able to provide firsthand accounts as to some events. Unfortunately these accounts differ in some material respects. From what can be inferred from the trial evidence, I have arrived at the following findings of fact.

1. Initial Family Circumstances and Separation

The family was initially from Ontario but settled in Saskatchewan and the children were both born there. The father was the family breadwinner and did not spend a great deal of time actually parenting. The mother and father decided that the mother would travel with the children to Ontario to spend the 2008 Christmas season with family. Whether the father would later follow was uncertain. He never did make it for Christmas. The mother, at some point, decided to stay in Ontario. It was not for the reason that the father had a new woman in his life, or that he had renounced the marriage. Nor was it for the reason that the father was abusive towards the mother, either emotionally or physically, or that he was overly controlling. On the contrary, the father was probably more at fault in the relationship by his absences from the family for work purposes, as he had long work hours some distances away from home.

The parties thereafter had a separation, mostly at the instance of the mother. The mother later travelled to Saskatchewan to retrieve furnishings and personal belongings, a trip to which the father contributed some $2,800 towards moving costs. The father entered into a common law relationship with Ms. D.C. after the separation, and he remains in that relationship to date, in Speers, Saskatchewan. The mother and father also agreed on a child support amount of $300 per month which the father paid faithfully until the children were removed from the mother. This amount was subsequently renegotiated in January 2016, apparently through a support assignee, by way of a separation agreement, to an amount commensurate with the Child Support Guidelines and his annual income, which he again also paid until the children were again removed.

2. Prior Child Welfare Involvement in Saskatchewan

The mother has had dealings with several child protection agencies. She had dealings with the Saskatchewan Social Services which conducted an investigation, after which she entered several sequential Parent Aide/Family Support Services agreements starting in April 2006 prior to leaving Saskatchewan in late 2008. It is unclear whether she advised the agency of her departure and the reason (i.e., Christmas with family), but she admits she did not advise this agency that she was not coming back to Saskatchewan. This agency issued a notice that the mother had left the area. The mother's characterization of her signing of the agreements as a perfunctory exercise is incongruous with the nature of the agreements and the fact that the agency issued what is tantamount to a BOLO (Be on the Look Out) for her.

3. Ongoing Child Welfare Involvement in Ontario

The mother also had dealings with the society in North Bay (Nipissing) and Sudbury (Sudbury-Manitoulin) while in Ontario and, of course, with the Algoma society. For the most part, the concerns of all of these child welfare agencies were the same or very similar to the concerns of the Saskatchewan agency, and the concerns that resulted in the finding that the children were in need of protection in 2014 and society intervention again in 2016.

4. Father's Relationship with the Children

The father did not "abandon" the family as the mother stated in her initial evidence. In fact, he took a number of steps to try to establish an access relationship with the children. Whether it was lack of aggressiveness on his part, or a failure of the mother to facilitate his contact with the children, or a bit of both, the end result was that he did not have face-to-face contact with them for about four years and his telephone contacts were irregular, at best. This seems somewhat discordant with the mother's own evidence that the father "did call just about every weekend". The children came to see him more as a stranger and were hesitant to interact with him. He did participate in the child protection proceeding that followed the 2014 apprehension, and re-established some contact with the children then. Following the 2016 apprehension, his access improved, not only in quantity, but also in quality, particularly after the children spent the month of July with him and his common law partner at their home in Speers.

5. Mother's Support System and Performance at Grandparents' Home

The mother's support system in Ontario consists of her mother and stepfather, and her brother. All three reside in the "family home" in Whitefish which is a home with which the children are familiar as they spent various periods living there with their mother. The problems of poor housekeeping standards, general neglect and poor attention to hygiene standards were undocumented while the children resided there likely for the reason that they did not exist there in any significant way. At worst, there is some evidence that the truancy and school lateness continued to be a problem, but not as big a problem as when the children lived elsewhere with their mother. In short, while residing with her parents, the mother performed tolerably well as a parent to the children.

6. Mother's Relocation to North Bay

The mother did not stay at the family home. She relocated firstly to North Bay for a job that she never did get, and for a relationship that resulted in, according to her testimony, her accidental pregnancy with an intimate partner with whom she lived there. The mother's living arrangements in North Bay can reasonably be inferred to have been overcrowded as she, her partner and the two children were living with another couple in accommodations never intended for so many. Ultimately, there were tensions which, at one point, flared up to a metal chair being thrown by someone and narrowly missing one of the children. The mother then realized the situation was not viable and left her partner, left North Bay and left the job for which she never was hired, and returned to her parent's home in Whitefish. Her foray into North Bay was unsatisfactory, disruptive to the children, attracted the attention of the Nipissing society, and overall, and in retrospect, was an exercise in bad judgement. She did not deliver the child with which she was pregnant. She gave up her relationship with her partner who apparently stayed in North Bay. She may have spent approximately half a year or so in North Bay in early to mid 2011.

7. Mother's Residence in Whitefish

The mother apparently remained in her parents' home with the children for about three years. This home was in the territorial jurisdiction of the Sudbury-Manitoulin society which conducted a number of home visits and interviewed collaterals, finding little of concern from a child protection perspective, at least not enough to warrant any apprehension. The mother seemed to function adequately as a parent during this period of time.

8. Relocation to Elliot Lake and First Apprehension

But the mother did not remain in the Whitefish family home. She apparently fell in love with the community of Elliot Lake while on a visit there and decided to relocate there with the children in July 2014. This is ultimately where the children were apprehended by the Algoma society. She found accommodations in a housing complex that, soon after her relocation, suffered damage due to a house fire. She was relocated to another unit on a temporary basis which later became a permanent basis. The Algoma society took her on as a client as Elliot Lake is within its territorial jurisdiction. Numerous visits were made by society workers who almost invariably found the mother's home to be unsatisfactory from a housekeeping and safety standard viewpoint, and cautioned her to clean her home up. The society was also concerned about the school attendance of the children, especially Roberta who was lagging developmentally and academically, and had been identified as a child with exceptionalities and special educational needs. It was concerned about the cleanliness, hygiene, school lunches, sporadic school attendances and the general sickly appearances of the children, mainly because it received many calls from the school the children attended about these things. Finally, after many society warnings and cautions, and in light of no sustained improvements or progress by the mother in her parenting and homemaking performances, the society apprehended on November 28, 2014. School reports confirm that school absence and tardiness were chronic for both children and were in a significant range (20 to 30 per year for Roberta).

9. First Apprehension and Consent Finding

The mother improved following the first apprehension. The children were, temporarily at first, and finally returned after she consented to a finding that the children were in need of protection, not only on grounds of parental neglect [S.37(2)(b)(i)] but also of a pattern of parental neglect [S.37(2)(b)(ii)]. The society supervising this placement began to see recurrences of the same themes that led to the first apprehension. Finally it apprehended again on June 7, 2016 during the currency of the 12-month supervision order then in effect.

10. Children's Adjustment with Father

The children, after some initial trepidation, mostly on the part of John, about spending time with their father, soon became more comfortable with him and with his common law spouse, D.C. In fact, after spending a month visiting with them in the summer of 2016, they began to express wishes to continue to reside with him in Saskatchewan. They were placed in the interim care and custody of their father on November 4, 2016 following a hearing in September 2016 by court order of Provincial Justice R. Villeneuve. They are now attending school and continue to reside in Speers. According to the evidence, they are doing well in all respects, much better than they have ever done while in the care of their mother. Roberta's developmental and academic needs are being attended to. They are both involved in extracurricular activities. The home in which they live has a full-time homemaker in their stepmother, D.C., with whom they have a satisfactory relationship. They miss almost no school and express wanting to continue to stay in Saskatchewan. They also express wishing to spend more time with their mother.

11. Mother's Current Circumstances

The mother has since relocated from Elliot Lake back to Whitefish to the home of her parents. Her intention is to continue to reside there with them and with her brother. The Algoma society requested the Sudbury-Manitoulin society to conduct a kin assessment of this home and family. The assessment was not completed for the reason that the maternal grandfather refused to provide historical information, or a consent for release of such information, and asked the kin assessor to leave his home. The mother works two four-hour shifts a week at a cleaning job for less than minimum wage. She has a goal to pursue a career in the law field but has taken no steps in that direction yet. She has, by her own admissions, a number of medical and/or mental difficulties including sleep apnea, diabetes, arthritis, chronic pain, back issues, Parkinson's disease, chronic bronchitis, iron deficiency anemia, two hernias (since repaired but with limits on what she can lift), obesity (since reduced somewhat from a morbid level by bariatric surgery) and has experienced bouts of suicidal ideation. I have no doubt that the cumulative effect of these contributed to her deficiencies as a parent and a homemaker, yet I have to commend her for her efforts as a mother and a parent in face of such handicaps.

12. Assessment of Mother's Allegations Against Father

With respect to the allegations that the mother has made about the children since they have been residing with their father, I disbelieve the bulk of these. The reason is that the mother has no independent evidence aside from her own beliefs, and no specifics of any of: mistreatment of the children, inadequate meals, neglect of medical and safety needs, mental abuse, preferential treatment of others over the children, coaching or coercion or threats. Moreover, there is evidence from both the father and the stepmother that suggests that the contrary is more representative of the truth. The evidence of the society, which does carry out a supervisory mandate through a sister agency in Saskatchewan, does not support the mother's allegations. Finally the children do not make any of these complaints to their own lawyer who is appointed as their legal representative through the Office of the Children's Lawyer (the "OCL"). These allegations are at odds with the wishes of the children. Frankly, I found the father and the stepmother to be more credible and consistent in what they said than I did the mother.

Analysis and Decision

[26] Best Interests Analysis - Parental Relationship

The end result of this trial is that it makes eminently more sense having regard to the applicable 'best interests of the children' circumstances in this case, to have the children in the care and custody of their father than in that of their mother. From the court's point of view, a parent is a parent whether that parent is a mother or a father, so neither gains nor loses as a result of a simple blood or parental relationship [clauses 5 and 6]. The advantages of life with the mother is that the children would also live with grandparents and an uncle, persons with whom they are related and with whom they have a positive relationship. Also, there is a mention that the paternal extended family also resides in proximity to the mother's home. Living with their father would keep them far from the bosom of these family members but close to the father and one paternal aunt who also resides nearby in Saskatchewan. This consideration [clause 6] favours the mother.

[27] Physical and Emotional Needs

However, it is virtually the only one. Most, if not all of the other considerations under s.37(3) CFSA are either neutral or favour living with the father. From a risk viewpoint, there is no credible evidence of risk at the father's home compared with the mother's home. [clause 11] While it is true that the mother's home has changed and is now the same home as that of the maternal grandparents, historically the mother has left that home at least twice, taking the children with her to live in much less acceptable locations and environments where she has not fared well. Even at the grandparent's home, the children have fared poorly in some respects, most notably developmentally, in school attendance, and in their personal care and nutrition. The children's physical and emotional needs were clearly not being met while in care of their mother. They were consumers of junk food or at least fast foods on a regular enough basis that they had to be weaned off of it once out of her care and on to a more nutritious diet. They had school lunches that were inadequate in the opinions of their teachers and school principal, and often had to prepare their own lunches themselves. The mother's testimony that their lunches were invariably prepared by her and were always nutritious does not ring true when juxtaposed to evidence of school personnel to the contrary. The fact is incontrovertible that the mother conceded that the children were in need of protection, inter alia, for these reasons when she consented to a finding.

[28] Continuity and Stability

Continuity and disruption [clause 7] are important considerations but they favour the father. The mother uprooted these children, including their schools, homes and friends a number of times. She moved from Saskatchewan, from Whitefish, from North Bay, from Whitefish again, from Elliot Lake and is contemplating a career in law which will reasonably require some relocation for training and for work as Whitefish is too small a community to have these available. The father, by contrast has remained constant in his place of residence, his work and his normal environment. He is employed clearly in long-term employment. He has a home which he owns and a homemaker in his spouse. He presents as more stable by far.

[29] Permanency and Care Plan

From the standpoint of permanency, the father is also the winner. The children have been twice removed from the mother and the removal has been sanctioned by decisions of the court. The mother's plans have historically been ever-changing and are clearly not yet solidified. She has never been a regular worker outside the home for any appreciable length of time. She has been a recipient of disability (ODSP) or social assistance interspersed with periods of working at part-time, not well-paying jobs. She became pregnant and left her intimate partner when she left North Bay. She also left the father ostensibly for a Christmas visit with family, and never returned. She has been a single mom who clearly does not function well as a single mom. The father by contrast is much more solid from a permanency standpoint. He is well grounded in his community and his only move was within the same city to larger accommodations. The father's plan [clause 8] will keep the children in school, will provide them with their educational, social and extracurricular activities and without complaints about poor hygiene or inadequate lunches or sickly appearances.

[30] Children's Views and Wishes

The court has to assign weight to the importance of each of these considerations in how they affect the court's decision. Naturally, some will factor in much more than others in terms of importance. In the case of views and wishes of the children [clause 9], having regard to the ages and maturity of these particular children, and the fact that they have OCL counsel to represent them, and the fact that these views and wishes have remained constant over some time, the court has to assign considerable weight to these wishes. They overwhelmingly favour residing with the father.

[31] Conclusion on Best Interests

Accordingly, from a "best interests" analysis, the children should remain residing with their father. I might also state that removing them from his care at this point may, in itself, cause some distress to the children as they are clearly comfortable and settled where they are.

Protection Order or Deemed Custody Order

[32] Choice Between Protection Order and Deemed Custody Order

The children can remain living with their father pursuant to a protection order, under s. 57(1) CFSA, namely a term-limited supervision order which would continue to involve the society in a supervisory capacity. This has the disadvantage of being impermanent and would require a further status review at a later date. However, it would provide monitoring and society assistance for not only the parents but also the children. Moreover, it would continue OCL representation for them. On the other hand, the children can remain living with their father pursuant to a deemed custody order under s.57.1 CFSA which would end the involvement of the society as well as OCL counsel representation. Moreover, it would establish Saskatchewan as the jurisdiction for any court application with respect to custody or access variation, or with respect to any child protection issue. This would be a more permanent resolution and would avoid any need for a status review.

[33] Parties' Positions and Permanency Considerations

The society in its submissions would be satisfied with a deemed custody order. It appears to have no significant protection concerns with the children residing with their father. Nor do they have any major concerns with the children having access with their mother, either by long-distance means, or by visits in Ontario. In short, the society wants out of this case and is ready to leave access in the hands of the parents (and perhaps the children). OCL counsel appears to concur with this position in the interests of permanency and finality. The mother is less sanguine about such a resolution and may have fears that the geographical distance between her and the children will erode their relationship over time. From a practical point of view, she cannot financially afford to travel to and from Saskatchewan and spend any length of time there exercising access. The father has indicated that he can finance one trip annually for the children to Ontario to visit her and other relatives.

Maternal Access

[34] Importance of Maternal Access

The issue of maternal access is one that is raised by the claim of the society for maternal access in its status review application, as well as by the claim of the mother for access in her answer. Access is not, and should never be, a tag-along issue in a child protection case. Access is the lifeline between a parent and a child who is not in that parent's care and custody. It is as important to the child as to the parent. In the present case, maternal access is an issue in which the society has had a continuous role since the first without-prejudice order made within the five days next following the apprehension of the children from the mother. That they are now with the father and not with the society, and that they are immeasurably farther away from a geographical point of view than when they were in foster care in Ontario, seems not to have been taken into account in the orders for maternal access that have been in force to date.

[35] Supervision Order with Maternal Access Provisions

I have some concerns about how maternal access will play out henceforth. But for the issue of such access, I would be more inclined to make a s.57.1 deemed custody order. However, maternal access still involves, albeit more peripherally, child protection issues. Accordingly, I am more inclined to make a child protection order (supervision order) for six months together with an order for maternal access over the same period that provides for maternal access to be on agreement of all three parties (and OCL counsel if needed) with the final decision to rest with the society. The agreement should deal with all aspects of such maternal access including times, duration, location, frequency, supervision if any, provision of itineraries, responsibility for travel of the children to and from their home and any other incident of access that may arise. I also expect, in view of the geographical distances, that the mother and the children will keep in touch by digital or electronic means and the agreement should also incorporate provisions for such contact. I must add that the father is more fiscally suited to undertake the costs of maternal access, but these should not fall totally on his shoulders. The reality is that the mother decided to relocate to Ontario and is there by choice. She was content that the father bear the expenses of his access to the children when they were with her. She should also bear a good proportion of the expenses of her access with them now that they are with him.

[36] Preservation of Ontario Court Jurisdiction

I might add that this resolution preserves this Ontario court as a venue for resolving any dispute over maternal access while a protection order exists.

[37] Terms and Conditions of Supervision Order

Finally, I am not making any pronouncement on the terms or conditions of the supervision order that will apply over the six months I propose to order. This is mainly because I heard little by way of submissions on this issue. I am aware that the society will have to again request the assistance of a sister agency in Saskatchewan to fulfil its supervisory obligations. I expect that the parties can agree on these terms and conditions.

[38] Conclusion

I wish to express my thanks to counsel and to the father as a self-represented litigant for their able representations and submissions in this case, and for finishing their evidence and submissions within the estimated and allotted time.

Released: December 7, 2017

Signed: "Justice John Kukurin"

Footnotes

[1] S.37(2) A child is in need of protection where,

(b) there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person's,

(i) failure to adequately care for, provide for, supervise or protect the child, or

(ii) pattern of neglect in caring for, providing for, supervising or protecting the child;

[2] S.64(2) The society having care, custody or supervision of a child,

(a) may apply to the court at any time for a review of the child's status;

[3] S.64(8) If an application is made under this section, the child shall remain in the care and custody of the person or society having charge of the child until the application is disposed of, unless the court is satisfied that the child's best interests require a change in the child's care and custody. 2006, c. 5, s. 22.

[4] Catholic Children's Aid Society of Metropolitan Toronto v. C.M., [1994] S.C.J. No. 37, [1994] 2 S.C.R. 165 (at para 35)

[5] Ibid (at paragraph 37)

[6] For example, the initial ground for a finding may have been risk of sexual harm [s.37(2)(d)] because the mother chose to remain with partner proved to sexually abuse children. At a subsequent status review, the mother may have discontinued her relationship with this person but had, by then, embarked on a life involving drug abuse, criminality and inadequate supervision of her child, leading to risk of physical harm [s.37(2)(b)(i)]. No formal finding that a child is in need of protection is made in a status review. However, in this hypothetical, the court could well find a continuing need of protection.

[7] In Children's Aid Society of Oxford County v. W.T.C. the appeal court confirmed that the trial judge was within his rights in finding the child in "continuing need for protection .... on the need to protect a child from emotional harm arising from removing the child from caregivers to whom the child had become attached and whom the child regarded as psychological parents". This is clearly not a ground specified in s.37(2) CFSA, but fits nicely within clause 7 as well as possibly under clauses 6, 11 and 13 of the circumstances listed in the best interests test [See paragraph [9] of the above decision]. This argues for appellate endorsement of the one-part test on a status review.

[8] In a separate evidentiary Ruling in this case released October 30, 2017, I permitted the introduction of the views and wishes of the children as an exception to the rule against hearsay evidence on the basis that their statements reflected the state of mind of the children when they were made.

[9] Clause numbers refer to s.37(3) CFSA clauses that the court must consider where they are applicable in the case before it. See Paragraph [10] above for the wording of each clause.