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.
(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.
DATE: January 28, 2021
COURT FILE NO. C21032/18
ONTARIO COURT OF JUSTICE
B E T W E E N:
CHILDREN’S AID SOCIETY OF TORONTO
APPLICANT
SHERRI SMOLKIN, for the APPLICANT
- and -
C.B. and K.J.
RESPONDENTS
THE RESPONDENT, C.B., ACTING IN PERSON M. KEYSHAWN ANDERSON, for the RESPONDENT, K.J.
KENNETH SNIDER, on behalf of the Office of the Children’s Lawyer, for the subject children
HEARD: JANUARY 20 and 25, 2021
JUSTICE S.B. SHERR
REASONS FOR DECISION
Part One – Introduction
[1] The parties are the parents of three boys who are the subject of this case. Two of the children, J. (age 7) and K. (age 9), are in the care and custody of the respondent, C.B. (the mother), subject to the supervision of the Children’s Aid Society of Toronto (the society). This placement is pursuant to a final order, dated December 17, 2019, that was made on a protection application.
[2] The third child, K.M. (age 10), lives with the respondent, K.J. (the father). On December 17, 2019, the father was granted final custody of K.M., pursuant to section 102 of the Child, Youth and Family Services Act, 2017 (the Act). This order was made in the same protection application.
[3] Orders were made on the protection application providing that the mother and the father have alternate weekend and holiday time with the children who are not in their care.
[4] The society issued its status review application regarding J. and K. on June 17, 2020.
[5] The father has brought a motion, within the status review application, seeking an order that J. and K. be placed in his temporary care and custody, subject to society supervision, with alternate weekend access to the mother. The father submits that the best interests of J. and K. require a placement change pursuant to subsection 113 (8) of the Act.
[6] The society supports the father’s motion.
[7] The mother and the Office of the Children’s Lawyer (OCL), on behalf of J. and K., ask that the father’s motion be dismissed.
[8] The court read two affidavits of the father, the affidavit of the mother and the affidavit of the society’s family service worker (the worker) and heard submissions from the parties and the OCL.
[9] The issues for the court to determine on this motion are:
a) Do the best interests of J. and K. require a temporary change in placement to the father pursuant to subsection 113 (8) of the Act?
b) If the answer is yes, what temporary orders are in the best interests of J. and K.?
Part Two – Background facts and procedural history
[10] This child protection case started in Brockville in April 2018.
[11] The three children were initially placed in the temporary care and custody of the mother on April 4, 2018, subject to a supervision order. However, on April 11, 2018, on consent, they were placed in the temporary care and custody of the father, subject to a supervision order.
[12] The case was transferred to this court on June 18, 2018, as both parties were living in Toronto.
[13] On August 27, 2018, on consent, the three children were returned to the temporary care and custody of the mother, subject to society supervision.
[14] On November 27, 2018, on consent, the three children were found to be children in need of protection pursuant to subclause 74 (2) (b) (i) and clause 74 (2) (h) of the Act. The statement of agreed facts that supported the finding in need of protection included the following:
a) The mother has an extensive history with the society, since 2002, starting with another child who is now an adult (J.S.).
b) Between 2013 and 2015, the society had intermittent involvement with the mother. Concerns related to the children’s school attendance, her presentation as being stressed, suicidal ideation and concerns of domestic violence between her and the father. The file closed in 2016.
c) In February 2016, Family and Children’s Services of Lanark, Leeds and Grenville (FCSLLG) became involved with the mother. There were concerns about school attendance for J.S., the mother’s reluctance to provide information regarding the other children’s schooling, J.’s medical needs not being supported and the children’s declining behaviour at school. The mother refused to work voluntarily with FCSLLG.
d) FCSLLG started a protection application in April 2018 because the children’s school attendance was seriously declining. K.M. and K. had special needs. The mother would leave J.S. in charge of them while she visited her boyfriend, D.J., in jail, in Montreal, on weekends. The concern about leaving J.S. in charge of his brothers was that he had an undiagnosed mental health issue that kept him from leaving the home or going to school.
e) K.M. and K. exhibited pervasive emotional and behavioural difficulties, which resulted in a multiple day suspension for K. Some of K.’s outbursts at school included him being physically aggressive to his peers and school staff and defiant of school rules and expectations. Both K.M. and K. were not meaningfully engaged in academic work at school, as the focus was on managing their behaviour.
f) In October 2018, K. was placed in a modified day program, which included supports, such as a child and youth worker and social work services. There was some improvement in K.’s behaviour and academic performance.
g) The mother and K.M. continued to experience pervasive conflict in their relationship. K.M. disclosed that the mother swears at him and he swears at her. He also disclosed that the mother slapped him and pulled his ear, but he had not seen her physically discipline his brothers. The mother told the society worker that K.M. was lying.
h) The mother’s strengths included her expressed commitment to her children and strong communication skills. She was receptive to supports and was able to navigate support systems to her needs. Despite these strengths, the mother regularly presented as overwhelmed, frustrated and unable to stay mindfully child-centered in times of stress, which further eroded her coping and resulted in her not being able to maintain parental gains.
i) The mother and father have had a long tumultuous history with one another. The children have been exposed to this conflict.
[15] K.M. began spending increasing amounts of time with the father as his relationship with the mother deteriorated. He was living with the father by April 2019.
[16] On May 10, 2019, Justice Debra Paulseth dismissed the mother’s motion to permit her to take J. and K. out of school to visit D.J. in prison. Justice Paulseth ordered the mother to pay the father’s costs of $1,000.
[17] The mother has paid nothing towards that costs order.
[18] At a case conference held on December 5, 2019, the society set out its concerns about the poor school attendance of J. and K.
[19] On December 17, 2019, on consent, the court made final dispositional orders on the protection application as set out in paragraphs 1 to 3 above.
[20] The statement of agreed facts filed in support of these orders sets out the following:
a) The mother and the father had worked cooperatively with the society.
b) K.M. had settled and adjusted well to being in the father’s care. The father had noted progress in K.M.’s behaviour and overall self-esteem.
c) K.M. reported that things were going well with his father.
d) K. was receiving services from Aisling Discoveries (Aisling). The Aisling Child and Family therapist reported to the society that she had been attending the home to work with K.; however he was not engaging with the service. He was either sleeping or not speaking.
e) K. started attending a Day Treatment program at Aisling in September 2019.
f) There were concerns about K.’s attendance as he had missed 27 days of school. Some of these absences were due to busing issues.
g) There were also concerns about J.’s school attendance as he had missed 22 days of school. The mother reported that J. does not want to go to school because he does not like his teacher and that he is ill frequently.
h) J. and K. reported to the society that they were doing fine.
i) The society observed that the three children interacted lovingly at access visits.
[21] The mother initially facilitated the father’s and K.M.’s access with J. and K.
[22] However, starting in May 2020, the mother denied the father and K.M. access with J. and K.
[23] The father brought a motion to enforce the access order. The mother opposed the motion. She raised concerns that the father was not complying with COVID-19 health protocols.
[24] The parties settled the motion between them in August 2020. The mother agreed to restore the father’s access. The father sought costs of the motion.
[25] On August 24, 2020, the court awarded the father costs of $900. See: Children’s Aid Society of Toronto v. C.B., 2020 ONCJ 369.
[26] In its costs decision, the court made the following findings:
a) It was unreasonable of the mother to have deprived the father and the three children of in-person access with each other for over two months.
b) The mother’s imposition of pre-conditions for in-person access taking place (specifically that the father had to take J. and K. if she contracted the virus, and permanently take them if she died) was not reasonable.
c) The mother had unreasonably engaged in self-help instead of bringing the matter before the court.
d) After having had costs awarded against her by Justice Paulseth in May 2019, the mother should have been aware of the costs consequences of acting unreasonably.
e) A pattern of the mother breaching court orders was developing.
[27] On November 24, 2020, the father brought a Form 14B motion requesting that the court hear an urgent motion, on December 3, 2020, to change temporary placement of J. and K. to him. He alleged that the mother was again refusing access and that J. was not regularly attending school. The court endorsed on the Form 14B motion that it would not hear the urgent motion on December 3, 2020, as it would not have given the mother adequate time to respond, but it would schedule and set filing timelines for the motion on that date.
[28] On December 3, 2020, the mother’s previous lawyer was removed as her counsel of record, on consent. The mother said that she was in the process of retaining a new lawyer. The court set the hearing of the father’s urgent motion for December 21, 2020.
[29] The parties filed their motion material. On December 21, 2020, the mother sought an adjournment of the motion, as she had not yet retained a lawyer. This request was opposed by the father and the society.
[30] The court granted the adjournment request, on terms. J. and K. were placed on an extended visit with the father from December 25, 2020 to January 15, 2021. The return date was made peremptory on the mother. Costs of the appearance were reserved to the return date.
[31] The motion started on January 20, 2021. The matter was adjourned until January 25, 2021, as the court ran out of the allotted time for the motion and because it also wanted to hear from OCL counsel, who had inadvertently missed the appearance.
[32] The mother sought a further adjournment on January 25, 2021 so that she could bring a motion for state-funded counsel. The adjournment request was denied. It would not have been just to the father or to J. and K. to further delay the completion of the motion. The motion had already been adjourned since December 3, 2020, over the father’s objections. If the mother’s adjournment request had been granted, it would have unreasonably delayed the completion of the motion – a motion that the court had deemed urgent.
Part Three – Positions of the parties
[33] The father takes the position that the best interests of J. and K. require a temporary change in placement to him because:
a) The mother is not complying with the supervision order.
b) The mother is frustrating J.’s and K.’s relationship with both him and K.M. by denying access.
c) The mother has breached the supervision order that requires her to ensure that J. and K. attend regularly at school and to not remove them from school for any reason.
d) The mother has an inadequate plan to address J.’s academic needs.
e) The mother has breached the supervision order that requires her to ensure that K.’s mental health and treatment needs are met, in consultation with his treatment providers.
f) The mother is not functioning well and is exhibiting poor judgment.
g) His plan for J. and K. will best meet their needs.
[34] The society agreed with the father’s position. It submits that despite its best efforts, the mother has been unable to comply with the access order.
[35] The mother’s position is that J. and K. are doing very well in her care and it would be harmful to them to change their placement. She believes that she has complied, to the best of her ability, with the supervision order. She deposed that she denied access because the father was not compliant with COVID-19 health protocols. She submitted that she was now satisfied that he would follow those protocols and was content that access could resume in accordance with the court order. She feels that her plan to care for J. and K. is better than the father’s plan.
[36] At the December 3, 2020 court date, the OCL advised the court that J. and K. were not expressing clear views and wishes. He said that they felt caught in the middle of the adult conflict.
[37] At the January 25, 2021 appearance, the OCL advised the court that J. and K. were now expressing that they enjoyed spending lots of time with K.M. and the father but that they wanted to continue to live with the mother. The OCL also advised the court that J. and K. are very worried about the mother if they go to live with the father.
Part Four – Legal considerations
[38] Subsection 113 (8) of the Act sets out the legal test to change a child’s interim care and custody on a status review application. It reads as follows:
Interim care and custody
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.
[39] Two lines of cases have developed regarding the interpretation of this subsection.
[40] The two lines of cases are summarized, by Justice Melanie Sager, in paragraphs 14 to 17 of Catholic Children’s Aid Society of Toronto v. W.P.P., 2020 ONCJ 388 as follows:
[14] One line of cases enumerates a test that mandates a material change in the circumstances of the child such that a change in placement is required to meet her best interests. These decisions emphasize the need to demonstrate a material change or a significant change before it will alter a care and custody arrangement found to be in the child’s best interests following a trial or based upon agreed findings of fact set out in a Statement of Agreed Facts.
[15] The courts in these decisions stress the importance of not interfering with a status quo created by a final order lightly especially when the affidavit evidence on the motion to vary the final placement on a temporary basis is untested. Due to the importance of stability and continuity of care for a child in a child protection proceeding, some courts have interpreted subsection 113(8) and more specifically the use of the words “require a change” to mean that the court must find that the change in circumstances is significant such that it creates a need for a change as opposed to the change being “merely desirable”. See: Kawartha-Haliburton Children's Aid Society v. A.R. and D.F., 2020 ONSC 2738; Catholic Children's Aid Society of Toronto v. K.G., 2020 ONCJ 208; CAS Algoma v. S.S., 2010 ONCJ 332; and, Children’s Aid Society of Toronto v. S.G., 2011 ONCJ 746.
[16] The other line of cases state that it is not necessary to import the test of material change in circumstances into subsection 113(8) of the CYFSA and rather what is required is to demonstrate that there has been sufficient change that effects the child’s best interests requiring a change to her placement. What is sufficient depends on the circumstances of the case. See: The Durham Children’s Aid Society v. J.L., P.L.(F) and P.L.(GF), 2016 ONSC 5925 and Children’s Aid Society of the Regional Municipality of Waterloo v. A.M., M.E., and I.B., 2020 ONSC 1435.
[17] At paragraph 26 of The Durham Children’s Aid Society v. J.L., P.L.(F) and P.L.(GF), Justice P.W. Nicholson rejects the need to find a material change in circumstances and says, “Although the order at the conclusion of a child protection application is considered a final order, child protection proceedings in general should be considered fluid until the matter is finalized either by termination of all protection orders or a crown wardship order. Therefore, the court is not bound to find a material change in circumstances before a final order made under a child protection application can be varied. The court is called upon at this stage to determine what is in the best interests of the child.”
[41] Justice Sager endorsed the second line of cases. Her reasons for doing so include:
a) The introduction of the Act in April 2018 ushered in legislation with a very clear mandate to make decisions that are informed by a child’s experiences, best interests and views and preferences.
b) The introduction of the Act has resulted in a movement towards a more liberal approach towards judicial interpretation of child protection legislation, which approach was approved by the Ontario Court of Appeal in Children's Aid Society of Toronto v. J.G., 2020 ONCA 415. At paragraph 45, Justice Benotto writes, “The CYFSA is remedial legislation enacted for the protection of society’s most vulnerable children. It must be liberally construed to the benefit of the child.”
c) The legislation does not include the word material. That omission is deliberate.
d) It is not appropriate to import the definition of material change as set out in domestic case law into child protection proceedings, citing this court in Catholic Children’s Aid Society of Toronto v. R.M., 2017 ONCJ 784, where this court wrote, “Domestic cases are private disputes. Child protection cases involve the intrusion of the state into the autonomy of family life.”
e) Justice Sager asked at paragraph 32 of her decision: Why import the words, “material change” into legislation that is remedial and child focused? This will create in some cases an unnecessarily high bar for a party to reach and is contrary to the court’s obligation to liberally construe the legislation to the benefit of the child.
f) A flexible and liberal approach towards interpreting subsection 113(8) of the Act is necessary in order to recognize that the best interests of some children will require a placement change due to some change 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. In many Status Review Applications, the factors of stability and continuity will have heightened importance. The flexible approach allows us to consider the individual child before the court and her particular circumstances and needs.
[42] Justice Sager concluded at paragraph 34:
[34] In order to determine whether there should be a temporary change to a final care and custody order on a Status Review Application, the court must consider all of the relevant and reliable evidence on the motion within the context of the case as a whole, and decide if the evidence demonstrates that a change in the child’s life has taken place that impacts their best interests requiring a temporary change to their placement pending final adjudication of the Status Review Application.
[43] Counsel for the society, the father and the OCL submitted that the court should adopt the interpretation of subsection 113 (8) set out by Justice Sager.
[44] The court agrees, for the reasons well-articulated by Justice Sager.
[45] So, what change in circumstances is required in this case to make a finding that the best interests of J. and K. require a change in placement?
[46] There are factors that support requiring a very significant change in circumstances – at the highest end of the spectrum. They include:
a) The father and the society are seeking to remove J. and K. from their pre-intervention caregiver. This is state intrusion, as it is being sought in a child protection proceeding.
b) A final order was made placing J. and K. with the mother after a protection application. That order is presumed to be in their best interests.
c) The mother has been the primary caregiver for J. and K. The factors of stability and continuity are very important for these children.
d) The evidence on this motion has not been tested at trial.
[47] The factors moving the case down somewhat from the highest end of the spectrum are:
a) This is the father’s motion to change placement – not the society’s motion to change.
b) The request is to change placement to a parent – not to change placement to society care.
c) K.M. already lives with the father. J. and K. would be living with their sibling.
d) J. and K. lived with the father and K.M. from April to August 2018. They also spend significant time with the father, when permitted by the mother. Living with the father would not a big transition for them.
[48] Considering the factors in paragraphs 46 and 47, the court finds that there should be a significant change in circumstances, towards the high end of the spectrum, before it finds that the best interests of J. and K. require a change in temporary placement to the father. The court needs to exercise considerable caution before doing so.
Part Five – Analysis on request to change placement
5.1 Result
[49] The court finds that there has been a significant change in circumstances and that the best interests of J. and K. require an immediate placement change to the father. It finds that the father has met his onus under subsection 113 (8).
5.2 Factors that supported not changing placement
[50] The court took into consideration the following factors that would support J. and K. remaining with the mother:
a) She has been their primary caregiver.
b) J. and K. have a very close bond with her. They love her very much. They are comfortable in her care.
c) They were placed with her on consent, after a protection application.
d) The evidence set out in the motion material has not been tested at trial.
e) It is difficult for any parent to parent in the pandemic and allowances for this should be made by the court.
f) She has now been able to get K. enrolled in the Aisling Day Treatment program and he is participating in its Coping Power program.
[51] The court also considered the views and wishes of J. and K., as expressed through the OCL.
[52] However, the court treated the OCL’s submissions about J.’s and K.’s views and wishes with caution. The OCL advised the court that he had only obtained those views and wishes the morning of the hearing, on a zoom call. J. and K. were at the mother’s home. The court is not confident that the views and wishes of J. and K. are consistent or independent. It is also a concern that they feel responsible for the mother’s feelings if they live with the father.
5.3 Reasons why a change in temporary placement to the father is required in the best interests of J. and K.
[53] There were multiple reasons why the court finds that there has been a substantial change in circumstances that requires, in J.’s and K.’s best interests, a temporary change in placement to the father. They will be set out below.
5.3.1 Mother’s frustration of the access between J. and K. and the father and K.M.
[54] J. and K. have a very close relationship with the father and K.M. These are extremely important relationships for them. When the protection order was made the mother was compliant with the access order. This is no longer the case.
[55] Unfortunately, the mother has since demonstrated little insight into the importance of these relationships and has actively frustrated them. The court has no confidence that she will change her behaviour. This is emotionally harmful to J. and K.
[56] The first denial of access took place in May 2020 for several months. The father had to bring a motion to enforce his access. He was successful (through a consent order). The mother based her access denial on COVID-19 health concerns. She provided no evidence to support her position. The court found that the mother was unreasonable. She engaged in self-help without justification. Costs were awarded against her – the second time that costs have been awarded against her in this case. This is highly unusual in a child protection case and reflects the court’s concerns with the positions that she has been taking.
[57] The resumption of access did not last long. Again, the mother denied access in early November 2020, repeating her COVID-19 health concerns.
[58] The worker deposed how she worked very hard with the mother to try to convince her to comply with the court order, without success.
[59] The worker described inconsistent and concerning behaviour by the mother regarding this issue including:
a) On the November 6, 2020 weekend, the mother told the father that she would not take back J. and K. at the end of the access weekend because she had a medical appointment scheduled on the Monday. When the father told the mother that he was returning the children, as required under the court order, she cancelled his visit.
b) The mother relied on a letter from John Wanless Public School that there had been a COVID-19 outbreak to deny access. She had her lawyer send this letter to the father’s lawyer and she gave a copy of it to the worker. However, none of the three children go to this school – it made no sense.
c) The mother advised the worker on November 10, 2020 that if there was going to be a change in placement, she wanted to prepare J. and K. for this. The mother sent the worker an email that it might be time to place them with the father as the constant fighting and stress was not good for them. The worker checked with the father who said that he was prepared to care for J. and K. immediately.
d) The mother told the worker on November 11, 2020 that she felt overwhelmed and unable to care for J. and K. She felt that she had no support and that no one was listening to her. She told the worker that she was capable of looking after J. and K., but “I am unable to continue to risk my health, disregard my health team advice, and have a destructive relationship with the father”. The mother asked the worker how to prepare J. and K. for the transfer of their care to the father.
e) The mother did not allow J. and K. to visit with the father and K.M. on the November 13, 2020 weekend. She claimed that J. and K. were sick. The worker visited J. and K. and felt that they looked fine. The mother told the worker that the three children going back and forth was a health risk to her. The worker told her to comply with the order.
f) The mother continued to deny access. The father’s counsel notified the parties on November 18, 2020 that he would be bringing this motion. The mother did not change her position and on November 25, 2020, the society sent all counsel a letter setting out that it was now supporting a change in placement to the father, as the society had repeatedly told her to comply with the access order and she had refused.
g) On December 2, 2020, the worker warned the mother again to comply with the access order.
[60] On December 21, 2020, the court told the mother that her evidence did not come anywhere close to what was required to deny the father access. The extended access visit was ordered as a term of the adjournment. No further evidence was filed by the mother to support her position that access should be suspended. In submissions, the mother no longer took this position. She proposed resuming the access set out in the existing order and said that she would comply with it.
[61] The mother explained to the court why she did not comply with the access order and why she would do so moving forward. Her explanations were not convincing.
a) She said that her major worry had been that if any of she, J. or K. contracted COVID-19 there would be no one to care for them and that was why she had denied visits. She claimed that she has now spoken to someone at public health and has been told that the father must take J. and K. if this happens, and if he doesn’t, that public health will provide her with supports to care for the children. She said that now she is no longer as worried about what will happen if she, J. or K. contract the virus.
The mother provided no supporting evidence about this discussion. There is no evidence that these supports are available.
b) The mother claimed she now knows that if she has concerns with the father’s compliance with COVID-19 health protocols, she can bring the matter back to court for it to decide if the father’s access should continue. She said that she now knows she can’t make that decision on her own.
This was disingenuous. The mother has known for a long time what she is supposed to do if she has concerns about the father’s access. She has been involved in contested court proceedings for a long time. If there was any question about whether she could exercise self-help if she had concerns with the father’s COVID-19 health compliance, this court made it very clear that this was not an option when it ordered costs against her on August 24, 2020. The worker also told her several times that she could not unilaterally deny access. Further, the mother told the court that she had instructed her previous lawyer to bring a motion to suspend access, but he did not do so. She knew that bringing the matter back to court was the proper way to deal with her concerns. She chose to act unilaterally – again.
c) The mother said that the father now realizes that he must follow COVID-19 health protocols and that gives her more assurance about the safety of visits. However, the father had always maintained that he had followed these protocols, going back to the August 2020 motion. The mother provided no viable evidence that he had not done this. This was not a new development.
[62] What was informative to the court was that the mother took no responsibility, in either her affidavit or during her submissions, for her actions. She felt justified in denying access. She showed no insight into how denying visits is harmful for the three children.
[63] Rather, the mother chose to attack the father without justification. It reinforced to the court that the mother does not value J.’s and K.’s relationships with him or adequately value their relationships with K.M.
[64] As stated in its costs decision of August 24, 2020, the mother has developed a pattern of breaching court orders. She has only entrenched that pattern since that decision was made. She has not paid a penny towards either costs order. She quickly breached the access order again.
[65] The court finds that the mother may comply with the access order for a brief period of time, but it has no confidence that she will do so for very long. She will breach it when it suits her.
5.3.2 The mother’s inability to meet schooling and treatment needs
[66] A chronic protection concern has been the poor school attendance of all the mother’s children, including J.S.
[67] Subparagraph 5 (f) of the supervision order made on December 17, 2019 requires the mother to ensure that J. and K. go to school regularly and consistently and not remove them for any reason. The mother has not complied with that supervision term. J. and K. have missed a lot of school.
[68] The mother changed her residence in December 2019 and J. needed to be registered in his new school. The mother told the worker that she could not enroll J. in school due to a conflict about who had custody. This made little sense as the mother had custody of J.
[69] The worker learned from the school principal that this was not the reason J. was not registered in school. Rather, it was because the mother had not provided the school with J.’s birth certificate, health card, immunization record or proof of address.
[70] J. was not enrolled in school until January 21, 2020.
[71] From October 9, 2020 to November 24, 2020, J. attended school for only one afternoon and three mornings.
[72] On November 24, 2020, J.’s teacher advised the worker that J. had not been submitting his work and his report card would say, “proceeding with difficulty” for most subjects.
[73] The mother told the worker that J. was struggling with on-line learning and that she was home-schooling him.
[74] There were also issues with K.’s schooling and treatment after the protection order was made, although they now appear to be resolved. If this was the only concern, the court would not change placement. However, it is part of a constellation of protection concerns.
[75] The final protection order contained supervision terms that the mother ensure that K.’s mental health needs are met and that K. participate in the Aisling Coping Power program.
[76] On May 25, 2020, Aisling notified the society that K. would not be eligible for the program in September 2020 because the mother was not following through with the program’s requirements. The worker’s note dated May 29, 2020, sets out the following:
a) The mother had a conflictual relationship with the Aisling therapist and this was affecting the therapist’s work with K. – the mother did not respect her as a therapist.
b) K. had attended just one session with the therapist since March 2020. K said he didn’t want to attend the sessions and the mother felt that he had the right to refuse therapy.
[77] The mother advocated for K. to return to the program despite the communication problems between her and Aisling. Aisling changed its position and allowed K. to remain.
[78] K. is presently registered in the Aisling Day Treatment program, which includes his current TDSB Virtual School. Starting in December 2020, he started participating in the Aisling Coping Power program – one year after the supervision term was ordered.
[79] K. is also now seeing a therapist virtually through Aisling.
[80] Both J. and K. are vulnerable children, who have gone through a lot of change and chaos. K. has significant special needs. It is imperative that they have a parent who can have them attend school regularly, follow through in a timely manner with service providers, and not engage in conflict with the service providers. The mother has been unable to do this consistently. This has compromised their social, emotional and mental development.
[81] The mother’s schooling plan for J. is inadequate. She proposes that J. participate in remote school learning for half-days and home-schooling for the other half-days. The mother provided no evidence that she is capable of providing J. with appropriate home-schooling. It seems unlikely, given her COVID-19 concerns, that she would send J. back to in-person schooling when the present restrictions are lifted by the government. It is in J.’s best interests to be in school and taught by professional teachers.
[82] The educational needs of J. have been neglected by the mother. It would be irresponsible to wait any longer to place him with the parent who will deal with these needs appropriately and have him attend school consistently.
[83] The court has no issue with the mother’s schooling and treatment plan for K. However, it has serious concerns about whether she will follow through with it consistently.
5.3.3 The mother’s functioning and judgment
[84] The evidence raised concerns about the mother’s functioning and judgment. This included:
a) Denying access because there was a COVID-19 outbreak at a school that none of the three children attend.
b) Her poor and often erratic decision-making concerning visitation.
c) Her poor decision-making regarding J.’s schooling.
d) Her inability to get J. to engage in on-line schooling.
e) Her expressions of feeling overwhelmed to the worker.
f) Her vacillation about whether to send J. and K. to live with the father.
g) Her breaches of court orders despite multiple warnings about the consequences of doing so.
5.3.4 The father’s plan of care
[85] The father has presented an appropriate plan to parent the children.
[86] There are no protection concerns regarding the father’s parenting of K.M. This is why he was granted a final custody order on December 17, 2019.
[87] K.M. has continued to do well in the father’s care.
[88] The father has always had a close relationship with J. and K. There was no evidence of parenting concerns during his access visits.
[89] J. and K. have close relationships with K.M.
[90] J. and K. should transfer seamlessly into the primary care of the father.
[91] The father has adequately addressed K.M.’s needs. He should be able to do the same for J. and K.
[92] There have been no concerns about K.M.’s education and attendance at school while in his father’s care. The father proposes to have J. attend the same school as K.M. Once the government restrictions are lifted, J. would attend school in-person. K. would continue with the Aisling programming. This is an appropriate plan.
[93] The father has always facilitated the three children’s relationships with each other and with the mother.
[94] The father indicated that he is committed to complying with COVID-19 health protocols. There was no credible evidence that he has been non-compliant.
5.4 Concluding analysis
[95] The protection concerns about the mother have been chronic – particularly around school attendance and compliance with court orders.
[96] The court does not have any confidence that the mother will consistently comply with court orders, to the detriment of J. and K. A supervision order is no longer adequate to properly protect them. This is a significant change in circumstances.
[97] The court finds that:
a) The father’s plan for placement will better meet J.’s and K.’s physical, mental and emotional needs.
b) The father’s plan for placement will better meet J.’s and K.’s physical, mental and emotional level of development.
c) The father’s plan for placement will better meet J.’s and K.’s need for continuity and stability.
d) The risk of continuing the placement of J. and K. with the mother is unacceptably high. Their relationships with the father and K.M. would be severely compromised and there is too high a risk that their educational and treatment needs would be neglected.
e) The father’s plan for placement will better address the needs of J. and K. than the plan proposed by the mother.
f) The best interests of J. and K. require that they be placed in the temporary care and custody of the father, subject to terms of society supervision.
Part Six – Terms of supervision
[98] The father set out proposed terms of society supervision in his notice of motion. The society added some additional terms that the father has agreed to.
[99] The supervision terms proposed are in the best interests of J. and K. and will be ordered.
Part Seven – Access
[100] J.’s and K.’s relationships with their mother are extremely important to them.
[101] It is in the best interests of J. and K. that they frequently see the mother – particularly since they expressed to the OCL that they are concerned for her if they live with the father.
[102] The concerns that the court has about the mother parenting J. and K. as their primary caregiver do not extend to visitation.
[103] The mother asked for temporary alternate weekend access, together with time over the March Break and the summer, if the court placed J. and K. with the father. While it is premature to order summer access, the mother’s request is reasonable and not opposed by the father or the society. The parties should evaluate how access progresses and consider an expansion of parenting time if it goes well. At this point, the court sees no reason why J. and K. (and K.M.) should not spend substantial holiday time with both parents.
[104] The father and the society seek a continuation of a supervision term that J. and K. have no contact with D.J., whether he is in jail or released from jail. This will be ordered. The mother will have the right to bring a motion to change this term if D.J. is released from jail.
Part Eight – Conclusion
[105] A temporary order regarding J. and K. shall go on the following terms:
a) J. and K. are to be placed in the temporary care and custody of the father, subject to terms of society supervision as follows:
i) The father shall make himself and J. and K. available to meet with the society’s workers, who may conduct announced and unannounced visits to the home. He is to allow the society’s workers to meet with J. and K. privately in their home, school or community as needed and appropriate.
ii) The father shall ensure that J. and K. are enrolled and regularly participating in appropriate school programs, and that K. continues participating in the Aisling Day Treatment program (which includes school and therapy components) and the Coping Power program.
iii) The father and the mother will protect J. and K. from being exposed to any excessive adult conflict between them and shall not speak negatively about each other in their presence.
iv) The father shall sign consents for the society to exchange information with other service providers involved with the family as reasonably requested by the society.
v) The mother and the father will follow government orders and requirements as set out and as updated here:
b. https://www.ontario.ca/page/2019-novel-coronavirus#section-7
c. https://www.toronto.ca/home/covid-19/
b) The father shall sign whatever consents or directions are required to permit the mother to speak directly to J.’s and K.’s schools, doctors, therapists or other service providers.
c) The father is to first consult with the mother and the society before making any major decision concerning J. and K.
d) The mother shall have access with J. and K. on the following terms and conditions:
i) Alternate weekends from Fridays at 6 p.m. until Sundays at 6 p.m., extending until Mondays at 6 p.m., if the Monday is a statutory holiday.
ii) March Break from Monday to Friday.
iii) J. and K. will spend Mother’s Day with the mother from Sunday at 10:00 a.m. to 6 p.m., if it is not her access weekend and Father’s Day with the father starting on Sunday at 10:00 a.m., if it is not his access weekend.
iv) The mother shall be responsible for the access exchanges.
v) The mother shall not facilitate any access whatsoever, including in-person, telephone or social media access between D.J. and J. and K. If D.J. is released from incarceration during the term of this order, the mother may bring the matter back to court, on notice to the other parties, to seek an access order.
[106] If the father seeks his costs of this motion, he is to serve and file written submissions by February 12, 2021. The mother will have until February 26, 2021 to make written response. The submissions should not exceed three pages, not including any offer to settle or bill of costs. The submissions can be delivered in person or through email to the trial coordinator’s office on the second floor of the courthouse.
Released: January 28, 2021
Justice S.B. Sherr