WARNING
The court hearing this matter directs that the following notice should 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.
(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.
(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.
ONTARIO COURT OF JUSTICE
DATE: June 17, 2021 COURT FILE No.: Brantford C 290/17 ext 002 C 290/17 ext 003
BETWEEN:
The Children’s Aid Society of Brant o/a Brant Family and Children’s Services Applicant
— AND —
A.C., J.T. (ext 002) A.C., K.B., V.C. (ext 003) Respondents
Before: Justice A.D. Hilliard
Heard on: May 19, 2021 Reasons for Judgment released on: June 17, 2021
Counsel: Birkin Culp........................................................................ counsel for the applicant society Cassandra Bruni............................................................ counsel for the respondent A.C. Emily Carrol...................................................................... counsel for the respondent J.T. V.C................................................................................................................. on her own behalf
Hilliard J.:
Overview
[1] Before me were two (2) motions argued on the same day: a motion brought by the Respondent father J.T. for placement of his biological child, J.C-T., in his care, the other a motion brought by the Society for placement of the child, A.C., in the care of the Respondent maternal grandmother, V.C.
[2] The Respondent mother, A.C., is the biological mother of the two children, J.C-T., age 3, and A.A-L.C., age 4. The Respondent father, J.T., is the biological father of J.C-T. The biological father of A.A-L.C. is not participating in these proceedings.
[3] The matter before the Court is a Status Review proceeding with respect to both children. Although the matters are proceeding under separate court extensions for each child, this judgment relates to both proceedings before the Court and a copy will be placed in each court file.
[4] For the reasons that follow, both motions are dismissed.
Background
[5] J.C-T. was found to be in need of protection pursuant to s. 74(2)(b)(i)(ii) on March 21, 2019. He was placed in the care of A.C. under terms of supervision on September 23, 2019.
[6] A.A-L.C. was found to be in need of protection pursuant to s. 74(2)(b)(i)(ii) on May 10, 2018 and in continuing need of protection pursuant to the same sections on June 11, 2019. She was placed in the care of A.C. under terms of supervision on June 11, 2019.
[7] The final supervision orders placing the children in the care of A.C. are what the Respondent father, J.T., and the Society respectively are seeking to change on a temporary basis. There is no dispute that both children have been continuously in the care of their mother since June 11, 2019. J.C-T. has never been removed from the care of A.C.
[8] A.C. has had to rely on the support of both V.C. and J.T., even during the recent term of supervision. J.C-T. was in the care of his father for an extended period of time while A.C. was having gallbladder surgery. A.C. also utilizes the assistance of her mother, V.C., to assist with childcare for A.A-L.C. There is no dispute that A.C. has appropriately utilized these family resources to support her in caring for the children.
[9] To the date of the argument of the motion, it is acknowledged that A.C. has not completed all of the services and/or counselling set out in the terms of supervision. The services A.C. was expected to access were to address protection concerns related to intimate partner violence and its impact on her and the children, drug use, and mental health concerns.
[10] Since the supervision orders for both children, A.C. has had interactions with individuals in the community that have resulted in police involvement, on one occasion the presence of the children. A.C. now has outstanding criminal charges for uttering threats.
[11] A.C. has a TikTok account with approximately 9,000 followers. Her account has no privacy settings to restrict who can view her postings. A.C. has recorded and posted video recordings that depict her dancing with J.C-T. visible in the background bouncing on a trampoline. There is a dispute as between A.C. and the Society as to whether the content of her postings on TikTok are sexual in nature and the extent to which the children are incidentally or prominently displayed in her posts.
The Law
[12] The test on a motion to change the placement of a child or children on an interim basis on a Status Review proceeding is set out at s. 113(8) of the Child Youth and Family Services Act (CYSFA):
113(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.
[13] The very wording of s. 113(8) imports a mandatory presumption that the child or children will remain in their placement unless the Court is satisfied that a change is required. On a motion to change the children’s placement on a temporary basis in a Status Review proceeding I am guided by Justice Zisman’s cautionary note in CCAS v. K.G. that motions judges must be mindful that the final order was deemed to be in the children’s best interests and I am being asked to vary that final order on an interim basis on untested affidavit evidence. [1]
[14] The real issue on a motion pursuant to s. 113(8) is what is the test to determine whether a change in the children’s placement on a temporary basis is required. In CCAS v WPP, Justice Sager noted that two different approaches have been endorsed by judges of both the Ontario Court of Justice and the Superior Court of Justice. I refer to and rely on Justice Sager’s thorough review of the two approaches – one requiring the moving party to demonstrate a material change in circumstances and the other not requiring such a stringent standard be applied. [2]
[15] I agree that the importation of a requirement that a material change in circumstances be demonstrated is not appropriate under the CYSFA regime. I adopt Justice Sager’s reasoning in WPP wherein she indicates that:
A flexible and liberal approach towards interpreting subsection 113(8) of the CYFSA is necessary in order to recognize that the best interests of some children will require a placement change due to some changes in their life or the lives of their caregivers, possibly not material, while other children may require a significant or consequential change before a placement should be varied on a temporary basis within a Status Review Application. [3]
[16] In adopting Justice Sager’s approach in WPP, Justice Sherr in CAS Toronto v. CB sounds a cautionary note that courts must still exercise “considerable caution” before making an order to change a child’s placement on a temporary basis in a Status Review proceeding as child protection proceedings are a state intrusion into the lives of families. [4]
[17] It is important to note that although it is not necessary to demonstrate a material change in circumstances, that does not mean that a less rigorous standard will therefore be applied. The moving party still bears the onus of demonstrating that there has been a change in the circumstances of the child or caregiver such that a change in placement is required in the best interests of the child. Even if a child’s circumstances may be improved by a change in their placement, if the evidence does not demonstrate that such a change is required in light of the protection concerns, the status quo must remain in effect.
Analysis
[18] The main argument made by both the Respondent father, J.T., and the Society is that the Respondent mother, A.C., has failed or refused to comply with the terms of supervision, thereby putting the children at risk of harm in her care. It is further argued that A.C.’s risky behaviour online and in the community also put the children at a heightened risk of harm while in her care.
[19] The Respondent grandmother, V.C., is aligned with the Respondent mother, A.C. Both argue that the motions to change the children’s placement should be dismissed. V.C.’s evidence is that the children are thriving in A.C.’s care and are extremely attached to one another. Both V.C. and Amber argue that it would be detrimental to the children’s emotional well-being to be placed in separate homes given their significant bond.
[20] While being mindful of the frailties of untested affidavit evidence, I am satisfied that A.C. has not made a significant and concerted efforts to engage with service providers in the community in order to address the protection concerns that resulted in the order finding that the children are in need of protection. Although the COVID-19 pandemic has significantly curtailed the ability of some service providers to render assistance to people in the community, there has not been a complete discontinuation of counselling and support services for parents in need.
[21] I am also satisfied that A.C. has engaged in inappropriate behaviour while in the community. Although she is entitled to be presumed innocent until proven guilty of the criminal charges she is facing, her interactions with other people have, at a minimum, given rise to reasonable grounds to believe that she was uttering threats to cause death or serious bodily harm to one or more individuals.
[22] The issue of whether A.C.’s online activities constitute a risk of harm to the children is more nebulous. Social media has become ubiquitous in our society today. Adults of all ages, including parents of young children, choose to share many intimate details of their lives, including images and videos, through their social media accounts with varying degrees of privacy protections. There is no evidence before me that any of the images or videos posted by A.C. on her social media accounts have resulted in either A.C. or the children being targeted by sexual predators. I do not accept the conclusory statement of the family service worker that A.C.’s “social media activity […] exposes the children to additional potential risk of emotional, physical and sexual harm” as there is no evidence to demonstrate this causal connection.
[23] So what has changed in the lives of the children to support a finding that a change in their placement is required at this time? Quite simply, the answer is nothing.
[24] The protection concerns that were present at the time the final order was made placing J.C-T. and A.A-L.C. in A.C.’s care remain unmitigated to a large extent. However, there is no evidence that the children themselves have suffered any harm as a result of A.C.’s failure or refusal to comply with the terms of supervision. The fact that the protection concerns remain is not in and of itself a change in circumstances requiring a change in the children’s placement.
[25] There have been occasions since the supervision order when A.C. has not been able to provide adequate or appropriate care for the children. However, the evidence before me is that during those times, A.C. made appropriate alternate child care arrangements to ensure the children’s safety and wellbeing. The children were not involuntarily removed from her care at any time since the supervision order was made.
[26] The Respondent father, J.T., deposes that A.C. has at times left J.C-T. in his care for extended periods when she was unable to provide adequate care for J.C-T. Although J.T. led this evidence to support the proposition that A.C. is not providing a stable home for the children, it equally can be used to conclude that A.C. has been appropriately utilizing family and community supports in times of crisis. By leaving J.C-T. in the care of his father for extended periods of time, that choice demonstrates that A.C. has some ability to prioritize the needs of the children over herself. I find that J.C-T. having periods of access with his father longer than what is specifically provided for in the supervision order is not a significant change in circumstances.
[27] I accept that the J.T. is an appropriate and loving father to J.C-T. I accept that he could provide J.C-T. with a stable residence were J.C-T. to be placed in his primary care. However, the test is not whether J.C-T. would have a better and more stable home in the primary care of his father, but rather whether A.C. or J.C-T.’s circumstances have changed enough to require a change to the final order placing J.C-T. in the care of his mother. The evidence on the motion brought by the Respondent father is insufficient to meet the test to demonstrate that a change in J.C-T.’s placement is required.
[28] The Society made similar arguments with respect to their request that A.A-L.C. be placed in the care of the maternal grandmother, V.C. However, the fact that A.C. has relied on her mother as an important support for both her and the children reinforces the conclusion that A.C. demonstrates her understanding of, and ability to be responsive to, the needs of her children.
[29] It is also a relevant consideration that the Respondent grandmother, V.C., supports her daughter and is opposed to the Society request to have A.A-L.C. placed in her care. V.C. is arguably the person in the community closest to A.C. and most aware of the extent to which A.C.’s choices and actions impact the children. V.C. has been open and forthright with the Society in disclosing concerns she has about her daughter. I am satisfied that if the children were being harmed or negatively emotionally or mentally impacted by the choices and actions of A.C., the maternal grandmother would not be supporting continued placement of the children in mother’s care.
[30] Most importantly, I have considered the complete absence of evidence that the children have been or are being negatively impacted by the Respondent mother’s poor choices and failure to engage in services. There is no evidence before me that the children are demonstrating signs of neglect, or are not meeting their milestones in any way. There was an incident where the police were required to attend at A.C.’s residence, during which time J.C-T. appeared emotionally impacted by witnessing his mother crying and upset. However, a single incident of emotional distress does not amount to a change in circumstances sufficient to warrant J.C-T. being removed from A.C.’s care. There is no other evidence of J.C-T. or A.A-L.C. exhibiting signs or symptoms of ongoing mental or emotional distress.
[31] J.C-T. has been primarily in the care of his mother since birth. A.A-L.C. has lived continuously with her mother and brother for two years now. The bonds and attachment between the siblings, and the Respondent mother, is another factor that I have considered in determining whether there should be a change in the children’s placement. At ages 3 and 4 respectively, a change in J.C-T. and A.A-L.C.’s placement at this interim stage would constitute a significant disruption in their continuity of care and I find that would not be in their best interests.
[32] Therefore, I find that the Society and the Respondent father, J.T., respectively, have not met their onus of demonstrating that there has been a change in the children’s circumstances such that they should be removed from the care of the Respondent mother, A.C.
Conclusion
[33] The motions of the Respondent father, J.T., and the Society to change the placement of the children on an interim basis are therefore dismissed.
Released: June 17, 2021 Signed: Justice A.D. Hilliard
[1] Catholic Children’s Aid Society of Toronto v. K.G. , [2020] O.J. No. 1765 at para 29 . [2] Catholic Children’s Aid Society of Toronto v. W.P.P , [2020] O.J. 3696 at para 13 – 18 . [3] Ibid at paragraph 33. [4] Children’s Aid Society of Toronto v. C.B. , [2021] O.J. No. 385 at para 48 .