WARNING

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

This is a case under Part V of the Child, Youth and Family Services Act, 2017 (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:

87.— (7) Order excluding media representatives or prohibiting publication.

Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, 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, the court may make an order:

(c) prohibiting the publication of a report of the hearing or a specified part of the hearing.

87.— (8) Prohibition re 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.

87.— (9) Prohibition re identifying person charged.

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.

142.— (3) Offences re publication.

A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(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

Date: 2019-11-25

Court File No.: Woodstock C104/19

Between:

Children's Aid Society of Oxford County Applicant

— AND —

C.L. C.S. Respondents

Before: Justice S. E. J. Paull

Motion Heard on: November 12, 2019

Reasons for Judgment released on: November 25, 2019

Counsel

Benjamin McIvor — counsel for the applicant

C.L. — on her own behalf

C.S. — on his own behalf

Decision

PAULL J.:

[1] Motion Before the Court

[1] Before the court is a motion found at tab 10 brought by the applicant seeking a temporary Society care order and varying the current interim order of August 14, 2019 which placed the child (N.S. born […], 2019) in the care of his parents pursuant to terms of supervision.

[2] The parents oppose the motion and seek the child's immediate return.

[3] I have reviewed and considered the affidavits and Report found at tabs 11, 12, and 16-19, in addition to the submissions of the parties.

Background and Evidence

[4] The Society has a significant history with C.S., the father of N.S., who has two other children who were the subject of a prior protection application. The concerns at that time were domestic violence (he was convicted of assaulting the mother), his significant criminal history including violence and several periods of incarceration, and a long-standing history of substance abuse.

[5] Findings in need of protection were made and that matter was ultimately resolved on the basis of a 57.1 custody order in favour of the children's mother, with no access to C.S. until further order of the court. This was varied by an order dated October 21, 2013 that allowed for four hours a week of access. This order was varied on May 16, 2016 to access at the discretion of the mother. C.S. has not had contact with these children for several years and indicated that he would like to but he does not know where they are.

[6] C.L., the mother of N.S., also comes before the court having experienced a traumatic personal history having been the victim of human trafficking, sexual abuse, and violence. She also has a historic heroin addiction and there were concerns initially about her parenting capacity as a result of a learning disability. She is presently in receipt of ODSP as a result of a diagnosis of PTSD related to being a victim of human trafficking, violence, and prostitution.

[7] During her pregnancy the Society attempted to work voluntarily with C.L., however closed its file because of missed appointments. It became re-involved when the child was born as a result of a birth alert.

[8] C.S. apparently has a drug possession charge outstanding from August 2018 which is next scheduled for a preliminary hearing.

[9] When the protection application began in June 2019, the applicant obtained a warrant and removed the child from the parents at the hospital and placed the child with C.L. on terms that she reside with the paternal grandfather and his partner, H.S. and C.A., and that C.S. reside elsewhere and have access supervised by the grandparents.

[10] C.L. agreed to this plan on June 3, 2019. On June 5, 2019 an interim without prejudice order was made pursuant to the motion before the court.

[11] Temporary care and custody hearing was argued and in written reasons dated July 11, 2019 the court granted the motion finding that there were reasonable grounds to believe that there was a risk to the child in the care of both parents, and that the least intrusive order consistent with the protection and well-being of the child was to reside with C.L. and the grandparents.

[12] In those reasons the court noted the following:

23. During its involvement the Society has noted other concerns. C.S. made numerous concerning statements on May 31, 2019 to the worker including several that if the parents' plan was not accepted he would not be around much longer (implying that he would kill himself), and that he had $15,000 buried in the ground for his children.

24. He also stated to the worker that he had been clean from drugs and alcohol for eight years, however, acknowledged to the worker he had two beers before their meeting which was at 1:30 PM. He also stated he was in a vehicle accident in August 2018 when he was "out of it" which resulted in the outstanding drug possession charge. C.S. further claimed to the worker that he had one other drug possession charge from when he "purposefully" sold narcotics to a police officer as he wanted to "bust his [the officer's] ass." C.S. does not deny making these comments.

25. On June 24, 2019 C.L. and the child left the grandparents' home and she and C.S. got married and went back to their home for a party with the child present. The Society became aware of this through an anonymous caller and not from the parents or grandparents. In their affidavit the parents do not deny this. The parents and grandparents were cautioned by the Society about compliance with the court order.

26. Further, concerns were raised by Dr. Tithecott at the Woodstock General Hospital about the child's feeding and weight gain. The doctor was concerned the child was not being appropriately fed at night. The child was visited by a public health nurse weekly and gains were noted.

27. A plan was developed that C.L. and child would go to London Health Science Centre so that the feeding could be monitored. They were admitted on June 28, 2019 and discharged on June 30, 2019 with no feeding concerns noted.

28. Dr. Tithecott remained concerned because the weight gain in the hospital was higher than previously recorded and it was felt the feeding had been changed while the child was in the hospital. C.L. denies this, however, a safety plan was developed that involved C.A. monitoring and keeping a record of the feeding, including the night feedings.

29. C.L. has provided 2 clean drug screens and the Society has no present concerns with her drug use. C.L. also provided confirmation from Beginning's Pregnancy Care Centre that she was involved with its services during her pregnancy.

30. C.S. has not engaged in drug screens in spite of requests from the applicant, but he did indicate a willingness in his submissions to the court to do so. He also indicated he has completed numerous programs in the past but did not provide the particulars or independent confirmation.

31. C.S. acknowledged in his affidavit that, "I spent a lot of time in jail. I was in an out of jail my whole life since the age of 12". He also stated that, in spite of his earlier difficulties, his personal circumstances were much better now and that he was a "changed man". The worker requested a copy of his current criminal record to confirm this and provided him with the necessary forms, however, C.S. has not provided it to date indicating that he has misplaced the forms.

32. C.L. has a significant personal history of trauma, and prior to the Society's intervention by way of a protection application, was not following through with meeting with the worker or with family violence counselling. Since the protection application was brought she has engaged in steps to address her issues through counselling, and she is meeting with the worker.

33. N.C.S. is a vulnerable newborn and given the concerns raised by Dr. Tithecott it is appropriate that the feeding and weight gain issue continue to be monitored to ensure the child remains on track.

34. The parents acknowledged taking the child to their wedding and their home afterwards. This was done in contravention of the interim without prejudice order and was done without any discussion with the worker in advance. This unfortunate choice reflects poor judgment and suggests that there is a concern for their ability to follow, without fail, terms of supervision imposed on them.

35. The evidence also establishes that C.S. has a significant history of criminal behaviour, including domestic violence and long-term alcohol and drug use. In spite of his suggestion to the worker that he had been clean from drugs and alcohol for eight years, he acknowledged drinking two beers before his meeting with the worker which took place at 1:30 PM. This is suggestive that his issues with substance use may not be historic. He also apparently has an outstanding drug possession charge resulting from a vehicle accident he had in August 2018 when he was "out of it" according to his statements to the worker. C.S. provided no particulars to deny or counter the statements the worker attributed to him in his affidavit. C.S. has also not complied with requests for drug screens, however he indicated in submissions a willingness to do so.

36. C.S. has not provided his current criminal record that was requested by the Society although in submissions he once again indicated he would. His statements to the worker on May 31, 2019 are a further concern and call into question his judgment and state of mind at the time.

37. In the circumstances of the serious and long-standing nature of the concerns and the previous protection findings made, evidence of consistent follow-through for a period of time is necessary, and more importantly, evidence that C.S. has addressed his issues related to his personal history of trauma, violence, and substance use.

[13] Following the order on July 24, 2019 C.L. continued to work cooperatively and C.S. made efforts to cooperate and agreed to attend programs and screens.

[14] The Society arranged drug testing for the parents through DriverCheck.

[15] On July 6, 2019 C.L. tested negative as did C.S. on August 6, 2019.

[16] C.L. advised the applicant that the grandparents' landlord required that she and the child move out of the home. She was adamant about not attending a shelter or maternity home. The worker later learned from the grandmother that she was worried C.L. and the child staying there would jeopardize her housing if the landlord found out.

[17] The Society attempted to develop a plan which would have C.L. and N.S. move to the home and for C.S. not reside there. The parents disagreed with this plan and were adamant that they should parent together.

[18] In the circumstances at that time the Society took the position that the least intrusive order would be for C.L. and the child to return home with C.S. under strict terms of supervision.

[19] The parents agreed to this and signed a comprehensive consent agreeing to numerous terms including the following which form part of the interim order of August 14, 2019 under review:

1. C.S. to follow through with counselling as directed including through the Family Violence Program and/or Woodstock General Hospital.

2. C.S. to attend the Caring Dads program starting in September 2019, and follow through with anger management counselling.

3. Both parents to attend the Nurturing Parent's Program starting in September 2019, and both parents undertake drug and alcohol assessments and random drug testing.

[20] The Society's position is that the parents have not followed through with the terms of the order with respect to the programming and attending for all drug screens, and most importantly, that both parents have tested positive for methamphetamine.

[21] Following the order of August 14, 2019 the parents continued to participate in the Healthy Babies Healthy Children program with neither the health nurse nor the parent resource visitor expressing concerns.

[22] C.S. did not follow through with the Caring Dads program which started in September. His file with the Caring Dads program was closed on October 8, 2019 for non-attendance.

[23] The parents have not attended at the Nurturing Parent's Program which started in September 2019, and C.S. has refused to attend anger management indicating it was not necessary as he had attended years ago.

[24] Prior to the birth of the child, C.L. had been working with the Beginnings Pregnancy Centre. As of November 5, 2019 the Centre advised that C.L. has had minimal contact with them since moving back home in August 2019.

[25] Sue Barg from the Family Violence Counselling Program advised that C.L. attended the program until July 23, 2019 and has not attended since then.

[26] In spite of the terms of the interim order there is no evidence the parents are engaged in ongoing relapse prevention or addiction services.

[27] After receiving an anonymous referral on September 9, 2019 the Society directed further drug testing as follows:

1. September 12, 2019: both parents failed to provide a sample or respond to the request. The parents later stated there was insufficient time for them to attend.

2. September 16, 2019: both parents failed to provide a sample or respond to the request. However, the worker attended the home unannounced at 11 AM and the parents were both present. The parents advised there was insufficient time to get to the test in spite of the worker previously offering to arrange a cab. The worker advised the parents that the tests were scheduled for 1 PM and 1:15 PM and offered a ride which the parents declined. The parents did not attend later advising that C.S. "had just been called to court".

3. September 18, 2019: C.S. failed to provide a sample citing he was at work. C.L. provided a sample which was returned as non-negative and sent for confirmation analysis. The analysis came back positive for methamphetamine and amphetamine.

4. September 26, 2019: C.L. did not provide a sample. C.S. provided a sample which was returned as non-negative and sent for confirmation analysis. The analysis came back positive for marijuana, methamphetamines, and amphetamines.

[28] As a result of the positive drug screens and the parents' failure to abide by the terms of supervision, the child was brought to a place of safety on September 27, 2019 and the within motion was brought.

[29] Since that time drug testing has continued as follows:

1. October 25, 2019: C.S. did not make himself available and no sample was provided.

2. October 29, 2019: C.L. provided a sample which was negative for all substances.

3. October 30, 2019: C.L. provided a sample which was returned as non-negative for marijuana only.

[30] The parents undertook their own drug screens through Public Health which were filed at the motion. C.L.'s test of October 31, 2019 detected marijuana only and results are pending for C.S.'s test of November 5, 2019.

[31] The Society filed a Report of Dr. Melissa Snider-Adler dated November 4, 2019 which outlined and interpreted the positive DriverCheck drug screens. The Report of Dr. Snider-Adler outlines the following:

1. The urine drug specimens were tested at a certified laboratory (Dynacare Workplace in London, Ontario) using GC/MS (gas chromatography/mass spectrometer) confirmation testing technology which is the gold standard for testing.

2. The results of the test for C.L. dated September 18, 2019 were positive for amphetamine at 64 ng/mL, and positive for methamphetamine at 155ng/mL, with a limit of detection of 50 ng/mL.

3. The results of the test for C.S. dated September 26, 2019 were positive for THC metabolite at 183 ng/mL, positive for amphetamines at 551 ng/mL, and positive for methamphetamines at 3622 ng/mL, with a limit of detection of 50 ng/mL.

4. The positive samples of both parents were also found to be diluted. A diluted sample is defined as a sample that meets the parameters of normal human urine, however, have a low creatinine and specific gravity. "In other words, when someone drinks an excessive amount of water, their urinary output increases and the urine they produce has a larger ratio of water content. Due to the increase in water content of that urine, the creatinine (produced by the kidneys) is lower and the specific gravity (the ratio of the density of the substances to the liquid in the urine) is also lower." She noted that the testing protocols require that a positive dilute test is treated the same as a positive test. The only difference is that the quantitative level in the dilute sample is artificially decreased due to the increased water content. She concludes that quantitative levels of the drugs are therefore artificially deflated or "watered down", and the "real quantitative levels would therefore be significantly higher than what we are seeing".

5. Dr. Snider-Adler rejected that the explanations provided by the parents that paint fumes and certain medications could account for the positive screens. Her opinion was there was no dispute about the validity of the testing done.

[32] Since the child was brought to a place of safety on September 27, 2019 supervised access has been arranged by the applicant for five days a week. Since that time C.L. has attended regularly with no concerns and positive interactions noted. C.S. has chosen not to attend any access at the Society citing in his submissions that he kept away to not make matters worse.

[33] During access C.L. has attended medical appointments for N.S. with the foster parent which have been positive and appropriate.

[34] A meeting was scheduled by the worker for October 22, 2019 to review the Society's expectations and move the matter forward in an effort to have the child return home. C.L. attended the meeting and C.S. did not.

[35] The Society has made numerous proposals in an effort to engage C.S. in access however he has refused. He has chosen not to see N.S. since the apprehension.

[36] The parents adamantly deny that there are any protection concerns and that the positive drug screens are accurate. They feel that N.S. ought not to of been apprehended and that the Society is harassing them and setting them up to fail by giving them too little notice to respond to drug screen requests and by not providing transportation to programming.

The Law

[37] Section 94(9) of the CYFSA states that the court may at any time vary or terminate an order made under subsection (2), which provides the provisions governing adjournments of protection cases, and orders of temporary care that may be made pending these adjournments. Pending a hearing the court should make the least intrusive order that is consistent with the protection of the child from a risk of harm as outlined in section 74 of the Act.

[38] Justice Susan Himel in Children's Aid Society v. E.L., [2003] O.J. No. 3281 (O.S.C) para. 42, in writing about subsection 51(6) of the CFSA, which is now section 94(9) of the CYFSA, stated that 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 the circumstances.

[39] The decision of Justice Himel was an appellate decision and is binding authority on this court. As such, before considering changing the temporary order made on August 14, 2019, the court must find a material change in circumstances since the making of that order.

[40] In Catholic Children's Aid Society of Toronto v. R.M., 2017 ONCJ 784, Justice Stan Sherr summarized the test for the variation of the temporary care order during a protection proceeding as follows:

[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 following non-exhaustive list of factors should be considered, where relevant:

1. 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.

2. The degree to which the change in circumstances reduces or increases the risk of harm to the child.

3. 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.

4. 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.

5. 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.

6. 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.

[41] With respect to the threshold issue of a material change Justice Sherr, in supporting a flexible approach in interpreting what constitutes a material change in circumstances, noted that 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 (para. 57 and 60).

[42] I agree with Justice Sherr in supporting the view of Justice Kukurin in Children's Aid Society of Algoma v. A.D., 2010 ONCJ 760, that the change in circumstances required to change a temporary placement order should only need to be "sufficiently material", and what change will be sufficiently material depended on the circumstances of the case (para. 63).

Analysis

[43] Section 94(10) of the CYFSA states that:

(10) Evidence on Adjournments — For the purposes of this section the Court may admit and act on evidence that the Court considers credible and trustworthy in the circumstances.

[44] It must be noted, however, that the relaxed evidentiary standard in s. 94(10) does not otherwise change the rules of evidence.

[45] As child protection cases must be brought before the court within five days of the child's removal to a place of safety, it is often necessary for the Society to advise the court about information it has learned from third parties, such as doctors or teachers, as there is not sufficient time to obtain direct affidavits from those persons. However, the longer the case goes on, the more important it becomes to produce direct evidence from third parties.

[46] Direct evidence from witnesses is likely to be more reliable, as it is not being interpreted or summarized by a third person. When courts are dealing with the protection of children and the intrusion by the state into a family, it is imperative that it be able to make decisions based on the most reliable evidence that can be presented.

[47] Further, judges must act as gatekeepers by taking a vigilant and rigorous approach to examining the reliability of expert evidence, which includes drug testing results. This approach must be taken at all stages of a protection case, and not just at the trial stage. A preliminary finding against the parent at an early stage is likely to follow that parent throughout the protection proceeding. It has the potential to significantly impact the direction of the case and as such it is crucial that such a finding be based on reliable evidence. Catholic Children's Aid Society of Toronto v. R.M., 2017 ONCJ 661.

[48] Pursuant to recent amendments to the Family Law Rules the court must consider whether a preliminary examination of expert opinion evidence intended to be given on a motion in a child protection case is required in order to determine its admissibility.

[49] For the reasons which follow I am of the view that a preliminary examination is not required in this case, and I accept the evidence of Dr. Snider-Adler as outlined in the Report as it relates to the drug screens undertaken by DriverCheck.

[50] As outlined in Dr. Snider-Adler's curriculum vitae she is, among other things, the Chief Medical Officer for DriverCheck, an addiction treatment physician, an assistant professor in the Faculty of Medicine at Queens University, and a Quality Assurance-Methadone Program Peer Assessor. Her CV outlines significant training and experience in the area of addiction treatment and drug testing, and she has been previously qualified as an expert by the Ontario Court of Justice in both the areas of addictions and drug testing interpretation.

[51] As such, she has the requisite expertise to render the opinions she does regarding the nature of the drug testing conducted and the results of the parent's drug testing in this case. Further, given that interpretation of positive drug testing is required the opinion evidence of Dr. Snider-Adler is both necessary and highly relevant to the issues before the court.

[52] Dr. Snider-Adler also confirmed that the lab is certified, outlined in detail in her Report that it applied the established scientific and technical guidelines for the testing, and employed forensic practices including a chain of custody regimen, two levels of testing, oversight, safeguards and inspections, and the use of a "Responsible Person" in place in the lab.

[53] While sworn evidence of Dr. Snider-Adler was not provided and would have been preferable, her detailed written Report with CV attached was filed and, for the purposes of this motion, meets the standard for credible and trustworthy that is required.

[54] For the reasons which follow the applicant has satisfied the burden of establishing a material change in circumstances since the order of August 14, 2019.

[55] Leading up to August 14, 2019 C.L. was cooperative with services and provided clean drug screens. C.S. also provided a clean drug screen and committed to cooperate with the Society and undertake programming and further screens.

[56] When it appeared no longer possible for C.L. and the child to reside with the grandparents the Society was unable to make other arrangements agreeable to the parents, who insisted on parenting together. The Society agreed to a phased return of C.L. and N.S. back into the home with C.S. if strict terms of supervision were followed. The parents agreed to be bound by numerous terms of supervision, including related to programming and drug testing.

[57] Immediately after the order of August 14, 2019 it became apparent the parents were not strictly adhering to the terms of supervision. Other than HBHC, they have followed through with none of the additional programming which they agreed to and was ordered. C.S. stated in his submissions he did not agree to attend all the programming, however, he executed the consent agreeing to. More importantly, they were court order terms he was required to follow.

[58] I do not accept that the reason C.L. has not attended programming is that the Society has not facilitated transportation. There are repeated references to the worker offering to facilitate transportation and that the parents have refused. I also note that C.S. transports C.L. to access, which is five days a week, without issue.

[59] While the Society is not alleging the child has come to actual harm in the parent's care, the failure of the parents to engage as ordered is a significant concern. The positive drug screens for methamphetamine for both parents are also a major concern. The failure to follow through with all drug screen requests and to pursue a drug assessment and programming are additional concerns that increase the risk to the child in the circumstances. Given the significant historic concerns of both parents, particularly C.S., the detailed terms of supervision were necessary to manage the risks that were previously found by the court.

[60] The parents are strongly of the view that the positive tests are wrong or faulty. For reasons previously outlined I accept the results of the DriverCheck drug tests as accurate and meeting the credible and trustworthy standard required.

[61] I do not accept the parent's position that the Society has engaged in a campaign of harassment against them and set them up to fail by providing limited notice of drug screen requests. The Society agreed to the interim order under review subject to terms which the parents were expected to follow. The worker's expectations of drug testing and programming were pursuant to that order and not unreasonable. Further, as previously noted, the worker offered assistance with transportation which the parents repeatedly refused.

[62] Overall, I find that there has been a material change in circumstances since the making of the interim order on August 14, 2019.

[63] The issue then becomes whether, based on the changed circumstances, the placement order of August 14, 2019 should be changed.

[64] The court must undertake a contextual analysis with respect to whether it is in the child's best interests to change the placement order.

[65] In determining what order is appropriate, the court should consider the paramount purpose of the Act, being the best interests, protection and well-being of children and the secondary purposes of maintaining the integrity of the family unit, assisting families in caring for their children and recognizing the least disruptive action consistent with the best interests of the children (subsections 1 (1) and (2) of the Act). In assessing best interests, the court should consider the relevant factors set out in subsection 74 (3) of the CYFSA.

[66] The factors in subsection 74 (3) of the CYFSA are subject to the paramount duty in s. 1 to protect the best interests of an apprehended child. In other words, family and parental relationships are to be recognized only to the extent that they are "consistent with the best interest, protection and well-being of the children". Syl Apps Secure Treatment Centre v. D.(B.), 2007 SCC 38.

[67] For the following additional reasons the current circumstances necessitate that the child be placed in the temporary care and custody of the Society.

[68] Given the parent's history, particularly C.S.'s, and the significant risks found by the court and outlined in the Reasons for the temporary care and custody hearing on July 11, 2019, strict compliance with the terms of supervision were required. The parents, and particularly C.S., have not adhered to the terms of supervision. These combined with positive drug screens significantly increase the risk of harm to the child.

[69] However, C.L. has continued to meet with the worker, regularly attends access and appointments for N.S. which have been positive and appropriate and continues to attend for screens which have been non-negative for marijuana only. If she re-engages with the programming with the same success, I would have returned N.S. to her care if she supported a plan to parent N.S. on her own, until C.S. made similar progress.

[70] Unfortunately, the only plan the respondents support is to parent together and C.S. has done little to address the protection concerns related to him and he has not followed the terms of the order. Rather, the concerns previously found to have existed have been compounded by C.S.'s continuing failure to cooperate, meet with the worker, and even to attend access. For the supervision order to be sufficiently protective of the child both parents must engage with the worker so that the court ordered supervision can occur, and to permit the worker to assess the parents' progress.

[71] Further, C.S.'s failure to attend access since the apprehension is a particular concern. The worker has made repeated efforts to engage C.S. in access without success. C.S. indicated that he has not engaged with the worker or attended supervised access because it would be too hard on him and that he would likely make matters worse. C.S.'s choice to not see his newborn child shows that he is not able to prioritize the needs of N.S. over his own conflict with the applicant.

[72] The burden is on the applicant to satisfy the test to vary the interim order. The order sought by the applicant is a significant one which seeks to remove a very young child from his parents.

[73] The trial in this matter is not imminent and given the significant protection concerns previously found, particularly related to C.S., strict adherence to the terms of supervision is necessary to manage the risks. Unlike C.L. who has been able to set aside her disagreement with the Society and attend meetings, some screens, and access, C.S. has not worked to alleviate the concerns as he has refused to cooperate or to see his child supervised by the Society.

[74] Despite numerous requests by the worker pursuant to the terms of the interim order, the court has the benefit of only one drug screen from C.S. since August 14, 2019 which was positive for high levels of methamphetamine and amphetamine.

[75] If the respondents wish to parent this child together C.L. will need to follow through with programming, and more importantly C.S. will need to entirely change his approach to this matter, an approach that since the order of August 14, 2019 has only increased the concerns.

[76] The passage of time since the making of the interim order has made it clear that C.S. is not prepared to follow the terms of the order, or to cooperate with the applicant. The positive drug screens for methamphetamine are also a significant concern given both parents' history.

[77] The change sought by the Society to have the child in care is unfortunately necessary and proportionate in the circumstances as the parents are only prepared to jointly parent, and offered no alternative which might have N.S. return to C.L. while C.S. works to address the concerns that are abundantly clear on the evidence, so he can establish a track record of following, without exception, the court ordered terms.

[78] Having said this I repeat my comments from the earlier Reasons that the parents' goal of parenting together is an achievable one. This will require C.L. to continue to cooperate and re-engage in the programming ordered, and for C.S. to make significant changes in how he has approached this matter. Based on his behaviour since August 14, 2019 the court has little confidence a supervision order will be effective as he has not followed the terms of the order and is essentially refusing to have his child's placement in his care supervised by the applicant.

[79] As indicated, I would have returned the child to C.L.'s care with C.S. residing apart had she been prepared to accept this as an alternative. She is urged to reconsider her position.

[80] It is appropriate that the applicant make efforts to explore additional opportunities for access including at the grandparents' home, which ought to include overnight access for C.L. and N.S.

[81] The CYFSA requires a careful balancing of the paramount objective to promote the best interests, protection and wellbeing of children, with the value of maintaining the family unit. The legislation does not emphasize parental rights but rather recognizes the importance of maintaining the family unit as a means of fostering the best interests of children. The values and purposes outlined under section 1(2) must always be evaluated in contemplation of what is best for the child. A child-centred focus must not be lost at any stage of a protection hearing. Catholic Children's Aid Society of Metropolitan Toronto v. M. (C.), [1994] 2 S.C.R. 165.

[82] When the evidence is viewed in its entirety there are compelling grounds to conclude, not only that there has been a material change, but that the current circumstances necessitate the placement of the child in the care of the Society with access to the parents. The least intrusive order consistent with the adequate protection of the child and consistent with his best interests is that he be placed in the temporary care and custody of the applicant.

[83] Based on all the considerations outlined herein, there shall be an order as follows:

Order

1. The motion is granted and the order dated August 14, 2019 shall be varied per paragraphs 2, 4, 5, and 6 of the motion at tab 10 placing the child in the temporary care of the applicant with access to the parents at the discretion of the Society.

2. The Society shall make efforts to explore additional opportunities for access supervised by the grandparents in their home, including overnight access for C.L. and the child.

Released: November 25, 2019

Signed: "Justice S. E. J. Paull"