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: April 21, 2020 Court File No.: Toronto 52300/10
Between:
Catholic Children's Aid Society of Toronto Applicant
— AND —
K.G. (mother) D.B. (father) L.G. and I.G. (former caregivers) Respondents
Before: Justice Roselyn Zisman
Heard on: April 15, 2020 Reasons for Judgment released on: April 21, 2020
Counsel
Karen Ksienski — counsel for the applicant society
Gilead Kay — counsel for the respondent mother
Nancy Charbonneau — counsel for the respondent father
L.G. and I.G. — former caregivers, duly served but not participating
Julia Vera — counsel for the Office of the Children's Lawyer, legal representative for the child B.G. (the child before the court)
Nav Rai — counsel for the Office of the Children's Lawyer, counsel for the children K., M., and S. (the children not before the court)
Decision on Temporary Motion
Zisman, J.:
Introduction
[1] This is a motion by the Catholic Children's Aid Society, pursuant to section 116(2) of the Child, Youth and Family Services Act (CYFSA) to vary the final order of December 10, 2018 that placed the child, BG who is 12 years old, in the care of the mother and to now place her in the care of the Catholic Children's Aid Society (the society). The society also seeks an order of access in their discretion.
[2] On February 3, 2020 a temporary without prejudice order was made placing the child in the care of the society. This is the return of that motion.
[3] The mother seeks an order that BG remain in her care. In the alternative, she seeks an order that the child be placed in the care of her sister, the maternal aunt.
[4] The father supports a plan that the child be placed with the maternal aunt.
[5] Counsel for BG submits that prior to being removed from her mother's care the child wished to remain with her mother but that since being in foster care, she wishes to be placed in the care of her maternal aunt. She is content with her current telephone access and access to her siblings.
[6] Counsel for the other children takes no position as the motion does not affect his clients.
[7] The motion was heard by telephone conference and the recent affidavits were filed electronically.
[8] I have reviewed the Notice of Motion and supporting affidavit of the family service worker Stella Grange, the affidavit of the mother and the responding affidavit of the coverage worker Jaimie Goldstein. The affidavit of Ms Goldstein relies on case notes of other society workers and one telephone discussion with the father. No issue was raised as to the reliance on the society records or the hearsay nature of evidence in Ms Goldstein's affidavit.
[9] Counsel agreed that counsel for BG could advise the court of BG's position and also make some comments that went beyond merely stating her client's position. I agree with the submissions of mother's counsel that the court should consider the child's views and wishes in context due to the change in BG's position since coming into care and the inability of counsel to scrutinize the evidence.
Background
[10] The mother has 4 children. The children M., K., and S. are currently in the care of the society on temporary orders.
[11] The father is currently incarcerated serving a sentence of 7 or 8 years with a statutory release in 2013. As agreed with the society and his correctional officer, he has telephone access with BG once a week.
[12] BG and the other children, on consent, were found to be a child in need of protection pursuant to section 74(2)(h) of the CYFSA that is, risk of emotional harm.
[13] On December 10, 2018, on consent, BG was placed in the care of her mother subject to a 6-month supervision order with various conditions.
[14] The terms of the December 10, 2018 supervision order required the mother to comply with the following terms:
a) Ms G shall make herself available to meet with the Society worker as requested in the home, the Society's office or in the community
b) Ms G shall allow the Society worker to meet with BG privately in the home or in community
c) Ms G shall follow through with the referral to George Hull for her and for BG and shall follow through with all recommendations
d) Ms G shall work cooperatively with the Society and address disagreements in a respectful manner
e) Ms G shall update the Society of any changes to her telephone number and address within 24 hours of any such change
f) Ms G shall ensure that BG attends school at a regular and timely manner
g) Ms G shall maintain a respectful relationship with the school
h) Ms G shall continue to work with the addiction pathway worker at Jean Tweed
i) Ms G shall continue to see the psychiatrist for her medication review
j) Ms G shall sign consent for the Society to speak to all collaterals that she and BG are involved with
k) Ms G shall not allow anyone other than herself and BG to stay at her home, unless she has obtained the prior written consent of the Society
[15] The Status Review Application with respect to BG was returnable on May 16, 2019. The society sought an order of a further 6-month supervision order with the mother on basically the same terms as the December 10, 2018 order.
[16] The matter was adjourned to permit the parties to hold an all-party meeting as there was a discussion of a reunification plan. The society was working towards placing the children K. and S. in the mother's care or in the alternative, with the maternal aunt.
[17] At a court attendance on October 7, 2019 the society advised that it was amending its Status Review Application with respect to the other children seeking orders of extended care with access. But its position remained that BG continue to remain with her mother subject to a 6-month order of supervision.
[18] There were several other attendances in attempts to settle the matter that were unsuccessful.
[19] The society has amended its Status Review Application with respect to BG seeking an order of extended care with access. The society is exploring a kin placement with the maternal aunt.
[20] The case has been adjourned to the assignment court on July 30 with a 2-week trial to be heard beginning September 14.
Position of the Parties
[21] It is the position of the society that the mother has breached all of the terms of the supervision order except with respect to BG attending school and it has no information about whether the mother has been in a respectful relationship with the school. I infer that there is no issue in this regard as the society worker has been in contact with the school and no issues regarding the mother were raised.
[22] It is the position of the society that it attempted to support BG remaining in her mother's care as this was consistent with her wishes. However as of June 2019 the mother's level of cooperation with the society has seriously deteriorated, her living accommodations have been unstable and precarious and she has alienated her family supports. As a result, the mother has placed BG at risk of harm and it is in the best interests of BG that she be placed in society care. The society is in the process of now assessing the maternal aunt's plan. Access by BG to her maternal aunt will be the society's priority as a means of testing the potential placement.
[23] It is the position of the mother that she has always had a difficult relationship with the society that stems from her own experience as a crown ward and being subject to sexual and physical abuse.
[24] It is submitted that the society was aware as of October that the mother was evicted and living in various residences, but it was not until February that it initiated the temporary motion to remove BG from her care.
[25] It is further submitted that the society was aware of the various breaches of the supervision order since June 2019, such as the mother not signing the necessary consents or not following up with obtaining counselling for herself and BG through George Hull, and waited until February 2020 to bring a motion to remove the child.
Applicable Legal Principles
[26] Section 113(8) of the CYFSA sets out the test for an interim motion brought while a Status Review Application is pending as follows:
113(8) Interim care and custody
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.
[27] In the decision of Children's Aid Society of Algoma v. S.S. and M.C., Justice John Kukurin interpreted this provision as follows:
Subsection 64(8) [now s. 113(8)] does not create a presumption in favour of whomever has care and custody of a child. It goes further than a presumption. The use of the words "shall remain" implies that the status quo must remain in effect. The only exception is where the court is satisfied that the best interests of the child requires a change in that status quo. In my view, the use of the word "require" in this provision is not accidental. "Require" is a fairly strong word. It denotes considerably more than being merely desirable. It carries the connotation of necessity or obligation. Moreover, the criterion for determining that there is a requirement for a change is the best interests of the child. Whenever this test is to be applied under the statute, the person making the determination must take a number of listed considerations into account.
[28] This interpretation of section 113(8) gives priority to one of the best interests factors namely, the importance of continuity of care for a child that is, the importance of maintaining the status quo before a trial of the Status Review Application.
[29] The court must be mindful of the fact that it is being asked to vary a final order that was deemed to be in the child's best interests pending trial and that it is being asked to do so on untested affidavit evidence.
[30] The moving party must demonstrate that there has been a change in circumstances that relates to the best interests of the child that make it necessary, in the child's best interests, to change the existing order before trial. In addition to maintaining the status quo, the other factors in subsection 74(3) regarding the best interest criteria may be relevant.
Analysis
[31] The Status Review issued in May 2019 outlines concerns about the mother's relationship with the society and with her relationship with BG. Nevertheless, the society attempted to support the placement as it was consistent with the child's wishes. However, it was clear that this was a placement that required ongoing monitoring, supports and cooperation of the mother in order to ensure BG's needs were being met.
a) Failure to Abide by Terms of Supervision to Meet and Work Cooperatively with the Society Worker and Advise of Change in Living Arrangements
[32] A pivotal part of the outstanding supervision order required the ongoing ability of the society to meet with the mother and BG and be aware of their living situation.
[33] I find that the mother has not complied with those terms of supervision. The mother for the most part does not deny the incidents that resulted in BG being removed but provides explanations or excuses.
[34] As of June 18, 2019, the mother's level of cooperation with the society began to seriously deteriorate after a dispute the mother had during an access visit with her other children. Although the facts of what led to the disagreement are disputed by the mother, it led to the children's service worker telling the mother that she would no longer be permitted to drive the children anywhere without discussing the structure of the visit beforehand. The mother has refused to have that discussion with the worker since that time. Further, the mother blamed her child K. for causing the trouble that led to this restriction.
[35] After the access incident on June 18, the family service worker also began to have difficulties meeting with the mother. It is alleged by the family service worker that when they met or spoke on the phone the mother was disrespectful.
[36] At a meeting on September 23, 2019, the mother began to fight with the worker for allegedly being late and would only answer questions with one-word replies. The mother blamed the society for being unable to pay her rent as she was expecting her children K. and S. to be returned to her care and she would then receive the child tax benefit.
[37] The family service worker reviewed with the mother that she had not followed through with the reunification plan such as arranging counselling with George Hull and providing her consent to speak to her psychiatrist. The family service worker also discussed with the mother concerns about her problematic interactions with the children in the access visits and that she was extremely harsh with them. When asked questions, the mother only answered in one word. She spent most of the visit on the phone and would not put it away.
[38] Although at that meeting, the mother advised the society worker that she was being evicted, she never told the worker when she was evicted or where she and BG were living.
[39] From October 2019 to January 2020, the mother never advised the society where she was living in direct contravention of the terms of supervisions.
[40] The society found out from BG and then from reports of various family members from time to time where the mother and BG were living.
[41] Based on reports that the society received for various family members it appeared that those arrangements kept breaking down. The mother either does not address this issue or provides excuses as to why she needed to change residences.
[42] On January 10, 2020 the family service worker spoke to the mother to try to find out where she was living, the mother wanted to know why she needed to know and was told it was part of the terms of supervision. The family service worker reminded the mother that she had only been able to meet with BG when the issue was raised in court. The mother yelled at the worker and told her she was looking for accommodations that would come through in a week.
[43] The society discovered that as of January 19th, the mother and BG were living in a motel in an undesirable and unsafe location. On January 22nd, the mother cancelled the family service worker's appointment to see the accommodations as the mother told her she had found a place to live.
[44] From January 23rd to 31st, the family service worker tried unsuccessfully to arrange to see the mother's new accommodations.
[45] On January 28th, in a telephone call the mother told the worker she moved in with a lady, that BG had a room upstairs and she had a room downstairs. Then she said she sleeps in the same room with BG. The mother advised that she would be moving with BG into the basement apartment once the current tenant moves out. When the family service worker tried to make an appointment to see the home, the mother said the owner of the home wanted to be there and she would be leaving for Florida the next day and would arrange a home visit when she returns in a week.
[46] On January 31st, the family service worker was able to attend at the home. The mother stated that as of January 27th, she and BG moved into the home. The family service worker did not see any of the mother's belongings nor the room that the mother and BG were supposedly sharing. The mother had locked her dogs in the room despite being aware the worker was afraid of dogs.
[47] The mother did allow the worker to see the room in the basement that no one was sleeping in and in the worker's view it was not habitable.
[48] The mother was not forthcoming about information about the landlady who she said was a co-worker. The mother also stated that the landlord or her 17 year old daughter watch BG when she is at work.
[49] The supervision order requires the society to vet all individuals that the mother and BG reside with. This term of supervision was therefore also not complied with.
[50] The mother in her affidavit does not dispute that she failed to keep the society advised of her living arrangements. She simply states she was evicted in October and then found her current accommodations on January 28th.
[51] Although the mother in her affidavit has now provided the landlady's name and some details about her background, due to COVID-19, the society worker has not been able to attend at the home or meet with the landlady.
b) Failure to Sign Consents
[52] The terms of supervision required the mother to sign consents for the society to speak to the collaterals she and BG are involved with and for the mother to continue to work with her addiction counsellor and her psychiatrist.
[53] The mother does not dispute that she has failed to comply with these conditions.
[54] The mother has refused to sign any consents to permit the society worker to speak to her physician. Although the mother acknowledged that she takes medication for anxiety and the past saw a psychiatrist she would only show the worker her medication.
[55] The purpose of such a term in a supervision order was to monitor the mother's compliance with medical recommendations and to assess her ongoing emotional stability.
c) Concerns Regarding BG and Her Relationship with the Mother and Her Wishes
[56] Based on concerns about the relationship between BG and her mother, the society recommending counselling at George Hull.
[57] Despite the mother being provided the telephone number 4 times, the mother still has not arranged for the counselling. The mother states that she has called but has not received a return call. There is no evidence by the mother that she actively pursued this requirement despite being told that this was an important component of the initial reunification plan.
[58] BG was only sporadically attending the access visits when her mother sees the other children. According to the affidavit of Ms Grange, BG stated that she is not coming as she does not want to tell the society about what is going on in their home. However, to date BG has not made any specific disclosures.
[59] On January 31st, the society worker met privately with BG. BG told her that she felt bad about their living arrangement, about not knowing from where she would be attending school or knowing if she would be going to bed in the same place. When the worker told her that she may have to go back into care because the society was worried about her, BG agreed that there was a reason to be worried.
[60] I agree with the submissions of the mother's counsel that the manner the questions were put to BG were leading. However, BG's comments to the worker appear to be consistent with her current position to reside with her maternal aunt and not return to the care of her mother.
[61] BG's views and preferences need to be seriously considered by the court as part of the best interests test.
d) Level of Cooperation Since BG Removed
[62] Since BG was removed from the mother's care, the same pattern of noncooperation and antagonism with the society has continued.
[63] After BG was removed, on February 25th, the family service worker contacted the mother to arrange to attend at her home. The mother advised that she would not let the worker into her home unless her counsel was present. The mother made various accusations against the worker yelling and threatening her.
[64] The mother was sent a text advising her of the Plan of Care meeting for her children M. and S. and was asked to respond. The mother did not respond.
[65] The mother has had arguments with the child service worker about the society wanting to change the time of one access visit and about the need to cancel another visit.
[66] The child service worker tried to talk to the mother about her concern about BG calling her on her cell phone all day and not taking part in the routine of the foster home. The mother did not see any issue if that was what BG wanted to do and did not see the need to place any boundaries on her phone use.
[67] On March 23rd and 25th the mother failed to return calls from the child service worker.
e) Conclusion
[68] I find that the society has met the onus on it to prove that the status quo placement with the mother must be changed in the child's best interests.
[69] This was a situation where the society continued to support BG being in her mother's care despite obvious concerns.
[70] I agree that the society was aware of those concerns and in particular, the mother's lack of cooperation with the society and the strains in the relationship between the mother and BG.
[71] However, there were significant changes as of October 2019, that require a change in the child's best interests. The lack of stable housing from October to January culminated with the child staying in an unsafe hotel in January. The mother then refused to permit a proper inspection of her new accommodations, refused to permit the society to obtain information about who resided in the home and who would be supervising the child. The society obtained numerous reports of conflicts between the mother and her family supports leading to the conclusion that those supports that were an important part of her plan were no longer available.
[72] For BG to remain in her mother's care requires the mother to abide by the terms of supervision. The mother having been given many opportunities to do so failed to abide by almost all of the terms. Just because the society permitted the situation to continue for several months before removing the child, is not a reason for the court to find that it is in her best interests to remain in what was an unstable living situation with the inability of the society to monitor the mother and BG's circumstances.
[73] It would not be appropriate for the court to fault the society with attempting to keep a child with her parent. A child should not be removed unless there are no other options especially when in circumstances such as this, on a temporary motion prior to trial.
[74] Due to COVID-19, the society is further restricted from the ability to closely supervise the mother and BG. BG is not in school and not attending her support group. There are now even fewer outside resources to ensure that BG's needs are being met.
[75] I find that unfortunately that it is in BG's best interests that she be removed from her mother's care as her mother has been unable or unwilling to meet her physical and emotional needs and has not been able to provide a stable living situation.
[76] No submissions were made regarding any specific terms of access. Therefore, I am prepared to grant the society's request for access in its discretion.
Kin Plans
[77] The society had indicated that it is investigating a plan to place BG with her maternal aunt which would be consistent with her wishes.
[78] Counsel for the society advised that there was no impediment to arranging access between BG and her aunt.
[79] Although the society in its materials raise some concerns that the mother was at times not supportive of this plan, it is not necessary for the mother to support the plan. As part of its investigation, the society will have to assess if the maternal aunt is willing to abide by terms of supervision that would involve terms restricting the mother's contact with BG.
[80] The society should also assess if the maternal aunt is willing to control the father and his girlfriend's contact with BG. The father initially presented a plan that the children be placed with his girlfriend JL. That plan was rejected by the society. However, recently it became known to the society that JL had given BG a phone and had attended at her school. This was done without the knowledge or consent of the society. Although the phone was subsequently removed from BG, the mother expressed some concerns that the maternal aunt had facilitated contact between BG and the father.
[81] When asked by the court for a timeframe with respect to assessing the maternal aunt's plan, I was advised that police checks needed to be done. The police record checks had not yet been requested and it was unclear the length of time it would take for these to be obtained given the current situation with COVID-19.
[82] However, the society cannot conduct a kin assessment in the same way as it did previously. It would be inappropriate to keep a child in care pending the receipt of police or any other reports that could take an indeterminate amount of time to obtain. The society can easily determine if the proposed kin has a child welfare record and then can question the kin with respect to any police involvement or with respect to any other concerns.
[83] If the society is unable to assess the maternal aunt's plan in a timely manner, then if the mother still supports this plan, leave will be granted to the mother to bring another motion with an affidavit from the maternal aunt to temporarily place the child with her.
Order
[84] There will be an order as follows:
The order of December 10, 2018 is varied to place the child BG born […], in the temporary care and custody of the Catholic Children's Aid Society of Toronto.
Access between the child and her parents and any other family members shall be in the discretion of the society including location, duration and supervision thereof.
The Catholic Children's Aid Society of Toronto shall continue to investigate the placement of the child BG in the care of her maternal aunt in a timely manner and shall keep counsel for the mother and child's counsel advised of the status of that investigation.
If there is no agreement within 30 days on a timetable for placement, leave is granted to any counsel to bring an urgent motion for placement of BG with her maternal aunt on proper notice and on a date agreeable to the court and counsel.
[85] Upon the court resuming normal operations, counsel are to file the motion materials that were submitted electronically in the physical court record.
Released: April 21, 2020
Signed: Justice Roselyn Zisman
Footnotes
[1] 2010 ONCJ 332; See also Children's Aid Society of Toronto v. S.G., 2011 ONCJ 746 and Children's Aid Society of Toronto v. K.S., 2017 ONCJ 164
