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: 2021 11 15 COURT FILE No.: Toronto C41356/21
BETWEEN:
CATHOLIC CHILDREN’S AID SOCIETY OF TORONTO Applicant,
— AND —
S.M. (Father) and P.H. (Mother) Respondents
Before: Justice Robert J. Spence
Heard: by Zoom on November 10, 2021 Reasons released: on November 15, 2021
Counsel: Ms. Karen Ksienski……………………….……………counsel for the applicant society Ms. Deborah Stewart……………………….……………..counsel for respondent father Mr. Bradley Berns……………………………………..…counsel for respondent mother Mr. Nav Rai….Office of the Children’s Lawyer, legal representative for the child, B.
R.J. Spence J.:
1: Introduction
[1] The court heard two motions on November 10, 2021.
[2] The Catholic Children’s Aid Society of Toronto (society) brought a motion seeking to place the parents’ son, B., aged 12 years, in the temporary care of the mother, subject to society supervision. The mother supported the society’s motion.
[3] The father brought a cross-motion seeking to place B. in his temporary care, subject to society supervision.
[4] In the alternative, the father sought an order that he be given increased access to B. in the event the court ordered the child to be placed with mother on a temporary supervision order.
[5] Finally, the father submitted that in the event the court concluded the child should not be placed with him on a temporary supervision order, the court should order the child to remain in the society’s care, with expanded access to him.
[6] Following argument on the motions, the court reserved judgment. These are the court’s reasons for judgment.
2: Events leading to the place of safety
[7] The society brought B. to a place of safety on April 15, 2021.
[8] This occurred following a referral to the society from Strides Toronto (Strides) [^1] on March 1, 2021 and a series of events afterwards.
[9] The initial referral to the society arose from Strides’ concerns of neglect in the state of the home in which B. and his father lived, as well as B.’s aggressive behaviour toward his father.
[10] On March 5, 2021, the society worker spoke with the father and scheduled a home visit for March 10, 2021.
[11] On March 7, 2021, father called Toronto Police Services (TPS) to report that B. was assaulting him. The police attended the home but did not intervene further, as the officer believed that support services were in place.
[12] When the society worker attended the home on March 10th, he found the home to be dirty but, in that worker’s opinion, habitable. There were cockroaches in the apartment and the smell of urine from the cat litter.
[13] On March 12, 2021, father again contacted TPS to report that he was struggling with B.’s behaviour. The police attended the home and told father that he should clean the home.
[14] On March 15, 2021, father expressed concern to the society worker that B. was reacting poorly to the social worker from Strides following that social worker’s visits with B.
[15] The society social worker emphasized to father the importance of cleaning his apartment and informed the father that if he could not do so on his own, the society would assist with a cleaning service.
[16] On March 20, 2021, the father again contacted TPS, requesting police assistance to manage B.’s behaviour. TPS contacted the society following police attendance at the home and reported to the society that both the home and B. were in a filthy state, including:
(1) Excessive dirt/filth in the home, buildup of animal waste (cat urine and feces) all over the floors, puddles of urine along the hall mixed with feces, cockroach infestation, garbage scattered around, inability to use the bathtub due to the level of dirt and unhygienic conditions and excessive accumulation of garbage. (2) B. had a strong body odor, and he recounted he could not remember the last time he had a bath. His skin appeared pale in color.
[17] B. was transported to hospital for assessment. He was not admitted to hospital for medical reasons, but hospital staff expressed concerns about B. returning to father’s care.
[18] The society did not bring B. into care as it continued to look for less intrusive ways to address the issues.
[19] On March 22, 2021, the society worker spoke with father who reported that he had called police because B. had been behaving violently.
[20] The society worker advised father that B. could not return to the home until it was fully cleaned and assessed by the society to be acceptable.
[21] B. was discharged from hospital and arrangements were made for him to live temporarily with the paternal grandmother (grandmother) until father’s home could be properly cleaned.
[22] The society subsequently arranged for Atlas Cleaning Company to clean the home. On March 29th, when the Atlas workers attended at the home, father became embroiled in an argument with the workers, and the workers left without cleaning the home.
[23] Once again, the society worker reminded father that B. could not return to the home until it was properly cleaned.
[24] On March 29th, the grandmother told the society worker that father and B. could not continue living with her because she was unable to manage B.’s behaviour.
[25] Again, on March 31st, the grandmother reiterated that father and B. could no longer remain with her. The society agreed to pay for a one-week stay for both of them at a motel.
[26] The society provided father with a Walmart gift card to purchase clothing, as well as money for father to use the laundry facilities at the motel. The society subsequently paid for a longer stay at the motel, until April 12, 2021.
[27] The society arranged for No More Chores Cleaning Company to attend and clean father’s home. However, when the Company arrived at the home on April 12th, it refused to do the work as it found the home too dirty to clean in the time allotted.
[28] On April 12, 2021, the father advised the society worker that his stepfather and his brother had agreed to clean the home for a fee. The society agreed to pay that fee. The home was to be cleaned on April 14, 2021.
[29] On April 13, 2021, the father and B. returned to the home before it had been cleaned and without the society’s knowledge or permission. The society reminded father that it was not an appropriate or safe place for B. to live.
[30] On April 14th, the stepfather and the brother attended at the apartment to perform the cleaning. However, when they saw the amount of dirt, clutter, mud, broken furniture and garbage that was strewn about, they decided they could not do the work.
[31] On April 14th, the apartment building manager advised the society worker that if the apartment was not properly cleaned by the end of April, the building would commence eviction proceedings.
[32] The society convened a Family Centered Case Conference on April 15, 2021 and expressed to the family the following concerns:
(1) The state of the apartment, (2) B.’s behaviour, including that he was presenting as selectively mute, and (3) Father reporting to the society that he – the father – believed that he had an undiagnosed bipolar disorder. [^2]
[33] At that Case Conference, the family was unable to provide a plan for B.’s living arrangements until such time as the apartment was properly cleaned.
[34] On April 15, 2021, the society brought B. to a place of safety.
3: Court Proceedings subsequent to the place of safety
[35] On April 20, 2021, the matter came before me on a first appearance following the place of safety. I made a temporary without prejudice order placing B. in the care and custody of the society. I ordered access to the father to be in the discretion of the society, with the society to make best efforts to facilitate access twice weekly. I also appointed OCL counsel for B.
[36] At the time of that first appearance, the society did not have any information about B.’s mother. When the society later connected with the mother, who was living in Windsor, the society arranged for virtual access. The first virtual access visit occurred on June 13, 2021.
[37] At the court appearance on June 3, 2021, the OCL reported that B. was content in his foster placement, but that he wanted to eventually move home with his father. He also expressed a desire to have a relationship with his mother. On consent, the court varied the April 20th order by providing for access to the mother in the society’s discretion.
[38] On June 22, 2021, the Windsor-Essex Children’s Aid Society (Windsor society) completed an assessment of the mother’s home, where mother lived with her husband and their 4-year-old son. The Windsor society found mother’s home to be safe, clean, and appropriate.
[39] On July 2, 2021, B. had his first overnight visit with his 23-year-old sister and B.’s maternal aunt in St. Catharines.
[40] Commencing July 9, 2021, B. began having bi-weekly access visits at mother’s home in Windsor on weekends.
[41] An extended visit in Windsor occurred with mother and her family from August 27 until September 5, 2021. Beginning Thursday September 16, 2021, B. began having extended visits with mother from Thursdays until Sundays, each week.
[42] The next court appearance was on August 3, 2021. By that date, the society had expanded father’s access visits to each Monday from 10 a.m. until 6 p.m., and each Wednesday for 2 hours at the society’s office. The society reported that overnight visits had not begun as father’s home was not yet in a sufficiently hygienic condition.
[43] The OCL reported [^3] to the court that B. was not quite verbal, but that OCL counsel was able to communicate with B. in other ways.
[44] On October 1, 2021, the society amended its protection application, to seek a six-month supervision order with the mother.
[45] At the same time, it issued a notice of motion returnable on October 13, 2021, wherein the society sought a temporary supervision order with the mother.
[46] On October 13, 2021, all parties consented to an adjournment of the society’s motion to allow all the respondent parents to file necessary affidavits, as well as a reply affidavit from the society.
[47] On October 28, 2021, the father issued his cross-motion, seeking a temporary supervision order with the father.
[48] By the time this matter came to court for argument on November 10, 2021, all parties had served and filed multiple affidavits.
4: Legal Framework
[49] Section 94 of the Child, Youth and Family Services Act (Act) provides:
Adjournments
94 (1) The court shall not adjourn a hearing for more than 30 days,
(a) unless all the parties present and the person who will be caring for the child during the adjournment consent; or (b) if the court is aware that a party who is not present at the hearing objects to the longer adjournment.
Custody during adjournment
(2) Where a hearing is adjourned, the court shall make a temporary order for care and custody providing that the child,
(a) remain in or be returned to the care and custody of the person who had charge of the child immediately before intervention under this Part; (b) remain in or be returned to the care and custody of the person referred to in clause (a), subject to the society’s supervision and on such reasonable terms and conditions as the court considers appropriate; (c) be placed in the care and custody of a person other than the person referred to in clause (a), with the consent of that other person, subject to the society’s supervision and on such reasonable terms and conditions as the court considers appropriate; or (d) remain or be placed in the care and custody of the society, but not be placed in a place of temporary detention, of open or of secure custody.
Where child is subject to extra-provincial order
(3) Where a court makes an order under clause (2) (d) in the case of a child who is the subject of an extra-provincial child protection order the society may, during the period of the adjournment, return the child to the care and custody of the child welfare authority or other person named in the order.
Criteria
(4) The court shall not make an order under clause (2) (c) or (d) unless the court is satisfied that there are reasonable grounds to believe that there is a risk that the child is likely to suffer harm and that the child cannot be protected adequately by an order under clause (2) (a) or (b).
Placement with relative, etc.
(5) Before making a temporary order for care and custody under clause (2) (d), the court shall consider whether it is in the child’s best interests to make an order under clause (2) (c) to place the child in the care and custody of a person who is a relative of the child or a member of the child’s extended family or community.
Terms and conditions in order
(6) A temporary order for care and custody of a child under clause (2) (b) or (c) may impose,
(a) reasonable terms and conditions relating to the child’s care and supervision; (b) reasonable terms and conditions on the child’s parent, the person who will have care and custody of the child under the order, the child and any other person, other than a foster parent, who is putting forward a plan or who would participate in a plan for care and custody of or access to the child; and (c) reasonable terms and conditions on the society that will supervise the placement, but shall not require the society to provide financial assistance or to purchase any goods or services.
Application of s. 107
(7) Where the court makes an order under clause (2) (d), section 110 (child in interim society care) applies with necessary modifications.
Access
(8) An order made under clause (2) (c) or (d) may contain provisions regarding any person’s right of access to the child on such terms and conditions as the court considers appropriate.
Power to vary
(9) The court may at any time vary or terminate an order made under subsection (2).
Evidence on adjournments
(10) For the purpose of this section, the court may admit and act on evidence that the court considers credible and trustworthy in the circumstances.
[50] All parties agreed that these motions were to be argued as motions to vary, pursuant to subsection 94(9) of the Act, rather than as originating care and custody motions pursuant to subsection 94(2) of the Act.
[51] Subsection 94(9) of the Act provides no legislative guidance for the test to be followed on a variation motion. The test for a variation has been stated differently by courts over the years – for example, a material change in circumstances in Children's Aid Society v. E.L., [2003] O.J. No. 3281 (SCJ); or material change in circumstances followed by a best interests analysis in Children’s Aid Society of Simcoe County v. B. (B.J.) 2005 ON SC 33293; or a four-step analysis involving both material change and risk of harm in Children’s Aid Society of Toronto v. K.D., 2011 ONCJ 55. Other courts have enunciated the test in different ways. In short, there is no, one-defined way in which to state the test for a variation of a temporary care order.
[52] More recently, in Catholic Children’s Aid Society of Toronto v. R.M., 2017 ONCJ 784, Justice Stanley Sherr, after reviewing the various cases dealing with variation motions, commented as follows at paragraph 69:
[69] Justices Katarynch, Kukurin and Spence have set out many relevant considerations for courts to consider in determining motions to change placement in the cases set out above. This court will freely borrow from their decisions in suggesting this non-exhaustive list of factors for courts to consider, where relevant to the case:
- 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.
- The degree to which the change in circumstances reduces or increases the risk of harm to the child.
- 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.[^3]
- 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;
- 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.
- 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.
[53] After considering these various factors, Justice Sherr formulated his view of the appropriate legal test to apply, at paragraph 84 [my emphasis]:
[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 suggested, non-exhaustive list of factors set out in paragraph 69 above should be considered, where relevant.
[54] In this court’s view, Justice Sherr’s “flexible approach” and “contextual analysis” is a helpful way in which to approach this case. It allows the court to consider all the important and relevant factors which bear on the wellbeing of this child, including what is in B.’s best interests. [^4]
5: The child – then and now
[55] I propose to discuss B., the young person who is at the centre of this dispute. The best way to do this is to put the recent 8-9 months of his life into context – where was he at in March 2021 when the society first became involved; and where is he at today.
5.1: The child as he was in March 2021
[56] As I noted earlier, the father had contacted TPS on three occasions, because he was struggling to manage B.’s behaviour.
[57] When the TPS officer arrived on the scene on March 20, 2021, he spoke directly with B., who mostly answered with yes/no responses. However, B. did state that he had not been attending school, he did not play with friends, he could not recall the last time he had bathed, or the last time he had attended for a doctor’s visit.
[58] At the same visit, the officer noted a strong body odor emanating from B.; as well, the officer observed B.’s body which, to the officer, was obviously filthy.
[59] When the officer attempted to discuss B.’s situation with the father, he found the father had difficulty focusing on the officer’s questions.
[60] B.’s doctor advised the society worker that he had last seen B. on December 15, 2020 and that B. appeared to be well. He did comment that B. appeared to be very shy and spoke to people only selectively.
[61] On March 22, 2021, father reported to the society social worker that he had called TPS because B. had been behaving violently.
[62] On March 23, 2021, the Centenary Hospital social worker reported that the hospital would be releasing B. and that B. had an appointment at the Shoniker Clinic, and that the worker would be making a referral for an assessment of B. at Holland/Bloorview.
[63] Following the commencement of the protection application, the society continued with its investigations and gained further information about B.
[64] The principal of B.’s school conveyed certain details about B., including:
- Over the past number of years, B. was socially isolated, he displayed a hesitancy to talk, and he had difficulties with his personal hygiene.
- B.’s isolation and mutism became a dominant concern for the school.
- Although B. was close to grade level, the principal advised that if B. was recently in school, he would be requesting an assessment due to the disengagement over that past year.
[65] The society worker subsequently spoke with Dr. Azzopardi, B.’s pediatrician who had been seeing B. since 2015. He provided additional information, including:
- He last saw B. in June 2018. His concerns regarding B.’s behaviour including staying up all night watching videos and then sleeping until afternoon, avoiding showering and brushing his teeth, not engaging with father, and pulling out his hair;
- In March 2020, Dr. Azzopardi requested father to contact both Aisling and Shoniker Clinic to obtain services for B; and
- In September 2018, Dr. Azzopardi reported that information from father was that B. was continuing to bed-wet.
[66] The society’s children’s service worker attended with B. at an appointment on August 26, 2021, with Dr. Azzopardi. The doctor advised that B. is being followed by a psychiatrist, and that he is currently on Ciprolex to treat anxiety. Dr. Azzopardi stated he would refer B. to ISAND [^5] for a developmental assessment, and for a hearing test. He also recommended a vision test.
[67] The foster parent reported to Dr. Azzopardi B.’s issues pertaining to smearing and encopresis. Dr. Azzopardi expressed this was likely more related to mental health and/or trauma.
[68] Father told the society worker on July 16, 2021, that medication which Dr. Azzopardi had prescribed for B.’s bed wetting was not being used. The father said this was because B. was sometimes spitting out the medication. The father was unable to find a way to ensure the medication was properly taken.
[69] On July 21, 2021, the father showed the society worker an unopened prescription medication for Desmopressin ACET 120 UG [^6], prescribed by Dr. Azzopardi. The father had filled the prescription on March 26, 2019. However, more than two years later, the original prescription of 30 tablets remained intact and unused.
[70] In summary, a number of professionals and service providers had reported what amounted to an accumulation of concerns, all going directly to B.’s health and wellbeing.
5.2: The child as he is today
[71] All parties agree that B. has made significant progress since the society intervened in his life.
[72] As the court noted earlier, the society began integrating B. into his mother’s life in June 2021. Time spent with his mother has increased progressively since then.
[73] The foster parent has provided routine and structure in B.’s life.
[74] B. is attending school in person, and he appears to be benefitting from that.
[75] Mother has attested in her evidence that:
- B. bathes regularly and wears deodorant;
- He has clean clothes;
- He has regular haircuts, brushed hair and brushed teeth;
- He no longer smells of urine and feces; and
- In mother’s opinion, he displays increased confidence and happiness.
[76] Understanding why B. has progressed so significantly is important to the court’s analysis.
[77] Father says there is no way to know if any one factor is responsible for that progress. His counsel submits that it may be a combination of factors, including B. coming into care, father’s own progress, and mother’s introduction into B.’s life.
[78] Father argues that he has made very significant gains in a relatively short period of time. Since March 2021 when the father was restricted to only supervised access, he has now progressed to the point where the society has deemed it safe for B. to have some unsupervised overnight access with the father.
[79] The society says that the father has managed to get the state of the home into an acceptable level of hygiene. Father acknowledges that the state of the home is not at the standard that many people would find appropriate, but his counsel correctly points out that the court ought not to require a middle-class standard for persons in father’s position.
[80] However, the society and mother’s argument is not about whether father’s home has now reached an acceptable level of hygiene, such that it is safe for B. to spend some time with father in that home. The argument is about father’s ability to maintain those gains.
[81] It is also about how father allowed B. get to the point he was at when the society intervened in his life in March 2021.
[82] And further, it is about B.’s other physical and mental health issues that father had been unable to address, with little or no evidence that he is now capable of understanding and addressing those issues.
[83] Before I embark on that discussion, I wish to address the competing narratives between the mother and father regarding their history and mother’s eventual move to Windsor.
[84] The father blames mother for what he characterizes as her “abandonment” of the family. He says that this explains her absence in B.’s life for the past 7-8 years. The mother has a very different narrative. Father’s counsel asked the court to weigh the credibility of the parties about those competing narratives and to find that the father’s version is the believable one. Counsel urged me to find that the mother had in fact abandoned the child, and that this is a significant factor to weigh in the contextual analysis of the present motions.
[85] Subsection 94(10) of the Act permits the court to “admit and act on evidence that the court considers credible and trustworthy”.
[86] The significant gap of 7-8 years during which B. did not have a real relationship with his mother is a question that may be relevant at trial. To the extent that it may become relevant, the parties will have the opportunity to conduct full cross-examination to test the other party’s evidence. There is no such opportunity to do so in the context of these he-said, she-said affidavits. The court does not find that either of the competing narratives about this issue are credible and trustworthy at this stage of the proceedings. Accordingly, the court does not admit into evidence and make findings of credibility on the competing narratives of the mother and the father.
6: Protection concerns not addressed by father
[87] The father filed three affidavits in the context of these motions.
[88] In his affidavit sworn October 6, 2021, the father did not address in any meaningful way the protection concerns arising from the society’s evidence, as discussed earlier in these reasons, including how the state of his home became so unhygienic as to be unliveable and unsafe for B.
[89] The father filed two more affidavits, one dated October 28 and the third dated November 5, 2021. In neither of those affidavits does the father address the issue of the lack of hygiene in his home. How did he allow it to get into that state? How did he allow B. to get to the point where he stopped bathing, why did B. not have clean clothes to wear?
[90] The only real statement the father makes about the hygiene issue is:
B. was always clean, and his teeth and hair brushed. B. always had a bath before he went to school. B. had struggles but it was the impact of covid on B. and not being able to live his more normal life including attending school in person that really set him back.
[91] Whether or not B. was always clean prior to COVID-19 may be in dispute. But what is not in dispute is that B.’s life deteriorated significantly. It is one thing for a parent to proclaim that COVID-19 “set back” his child, it is another thing to ask, how did the parent himself allow the extent of that deterioration to occur.
[92] Doesn’t the parent have a responsibility to ensure that garbage is removed from the home, that urine and feces from animals are not spread onto the floor, that the child’s clothes are laundered, that a clean bathtub is made available, that, if necessary, the parent stands next to a child to ensure he brushes his teeth and engages in basic hygiene?
[93] All of this strikes the court as much more than a “set-back” for B. It is more about the father’s significant inability to provide safe and appropriate caregiving for B.
[94] And if the father is not able to fulfill those responsibilities, should he not have proactively reached out to the society for help?
[95] Where does the father accept any responsibility at all for those failures?
[96] Moreover, the school expressed to the society that concerns had developed over a number of years – not just since the onset of COVID-19 – respecting B.’s social isolation and his selective mutism. The father’s statement that all was fine with B. until the onset of COVID-19, does not accurately reflect the school’s expressed concerns.
[97] In his October 28th affidavit, the father deposed:
B. has never exhibited the “selective mutism” with me or in the environment he has been residing in and where he is comfortable, that the mother described in her affidavit . . . . B. speaks to me and my family just fine, as well as others with whom his is comfortable.
[98] Then, in his subsequent affidavit sworn November 5th, the father deposed:
I never said I did not believe that B. suffered from selective mutism . . .
[99] The father’s own self-contradictory evidence, combined with the school’s expressed long-standing concerns demonstrate to the court that the father has little or no insight into B.’s emotional/psychological challenges.
[100] A careful review of the father’s evidence does not reveal any insight into the father’s own mental health wellbeing. His statements made to others – as noted earlier – including his own belief that he may have undiagnosed bi-polar disorder, is not addressed anywhere in the father’s evidence.
[101] The society expressed concerns regarding the father’s mental health, parenting skills and ability to follow through with required services for B. As recently as the society’s affidavit sworn October 22, 2021, the society stated that the father had taken no steps to address these concerns.
[102] In his reply affidavit sworn October 28, 2021, the father stated:
My doctor has made referrals for various services. I have agreed to accept the services recommended by my health care providers. However, this process will take time due to COVID-19 delays.
[103] An agreement to “accept services”, conditional upon a delay to some unspecified time in the future because of COVID-19, does not reveal to the court any real understanding or insight by the father into mental health problems, either for the father or for B, or the urgency to address those problems. And that lack of insight does not support the father’s argument that B. would be safe and adequately protected back in the father’s home.
[104] Where does the father state his understanding into, and his recognition of his inability to manage B.’s behaviour, something which necessitated calls to TPS on three occasions? Rather than calling the police, why hadn’t father taken steps long ago to be proactive in addressing B.’s challenges? Instead, the father seems to attribute the problems to B. being out of school, and now that he is back in school, the father states:
It has also [^7] made a world of difference that B. is back in his old school in person.
[105] A careful review of the father’s evidence reveals that the father is more intent on addressing historical grievances with the mother, the circumstances leading to the alleged “abandonment” of B., and why, according to the father’s narrative, the mother simply chose to remove herself from B.’s life.
[106] The father’s evidence signals to the court that the father lacks the insight and understanding into long-standing protection concerns for B. The father blames the mother, he blames the teachers, and he blames the society’s service team for not being “interested in B.” when the society was previously involved in 2018. [^8]
[107] On the one hand, father deposes that “I remain committed to following the advice of B.’s healthcare providers” and yet – as discussed earlier – he revealed an inability to administer prescribed medications to assist B. with his bedwetting issue.
[108] Simply stating, in effect, that he will accept services, that he will follow healthcare advice, does not make it more likely than not that he will do so.
[109] The father’s history is revealing to the court. In the absence of evidence that this history will likely change, the court cannot make orders on mere promises to do things in the future.
[110] Most importantly, in the court’s view, while the father seeks to place responsibility on others for the way in which B.’s problems developed, and the terrible state the society found him in when it intervened in March 2021, he accepts virtually no responsibility as B.’s parent and primary caregiver.
[111] Perhaps this unwillingness or inability to accept responsibility is attributable to the father’s mental health challenges. Perhaps it is attributable to other factors. Regardless, without insight and understanding, a court cannot reasonably expect a parent to take the substantial steps required to implement the changes necessary to address the protection concerns.
7: The contextual analysis – Where should B. live?
[112] There are a number of factors which weigh in favour of B. living primarily with the father. These include:
(a) The father has been B.’s primary caregiver for the past 7-8 years; (b) The school B. has been attending is in Toronto; (c) The doctors B. is currently connected with are in Toronto; and (d) Arguably [^9], his friends and social connections are in Toronto;
[113] However, the mother has taken very meaningful steps, in a short period of time, to immediately address the protection concerns which gave rise to the protection application, including:
(a) She has provided a clean and safe home for B. to live in, a home which has been approved by the society, through its agent, the Windsor society. (b) She has arranged for B. to attend the same school as his younger half-brother, and she has walked to the school with B. to show it to him. She has investigated the school’s resources and notes their programs – including GAINS and IEPs – which would assist B. in his development. (c) She has demonstrated her commitment to parenting B. by taking Triple P Parenting classes over the summer. Additionally, she enrolled in the Happy Family Mindful Parenting and Mental Wellness online conference, which took place over a five-day period in October 2021. (d) She has made arrangements with the Windsor Regional Children’s Centre for a referral for B. to begin counselling. (e) If B. is placed with her, she intends to book an appointment with the Child Parent Resource Institute in London which will be focused on assessing B.’s selective mutism. (f) If B. is placed with her, she will immediately arrange for a dentist, a physician and an optometrist and she will ensure that B. attends all his appointments. (g) She has discussed the importance of specified extra-curricular activities for B. as well as counselling not only for B. but also to include herself and the rest of her family. (h) She has set out a very concrete plan for how B. will be cared for on a day-to-day basis, including how he will be supervised to ensure he attends school, completes his schoolwork, and supervised to ensure that B. addresses his personal care. (i) She deposes that B. has developed a positive relationship with her husband as well as with his little brother and his older sister who will be assisting with childcare responsibilities.
[114] Mother’s level of commitment to meeting specific needs pertaining to B.’s wellbeing, is revealing. When the society arranged a meeting for September 28th, the father did not attend. [^10] And yet, even though the mother works nights, she made this meeting a priority. It is noteworthy that it was the father – the parent who had missed this important meeting with the society – who complained about mother’s inability to attend important appointments because of her work schedule.
[115] The court also notes that when the society intervened and decided to take B. to a place of safety, the society was unaware of the mother’s whereabouts. This is because the father did not give that information to the society. Had the father provided this information to the society, the society might have had another option to placing the child in foster care. Instead, the society was forced to use a family finder to locate the mother and inform her of what had transpired.
[116] Returning to Justice Sherr’s test at paragraph 84 of R.M., all parties agree that there has been a material change in circumstances, something which should be established before the court conducts a contextual analysis to determine if the placement order should be changed.
[117] The contextual analysis is not simply a straight-up comparison of father’s plan versus mother’s plan. It is more nuanced. It should take into account other factors, including where the child was living prior to society intervention, how will the child be protected from the risk of likely harm, and how will his interests best be met, if he is placed with mother, or with father or, as father’s counsel argued, remain in care with expanded access to the father.
[118] Dealing with that last submission, namely, leaving B. in care while expanding father’s access, the court cannot make this order in the circumstances of this case.
[119] First, the court must consider the provisions of subsection 94(5) of the Act which requires the court to place a child with a relative before placing the child in the society’s care, so long as placing with the relative is in the child’s best interests.
[120] The father argues that placing/leaving B. in the society’s care would allow him to spend more time with his father – something that B. has expressed to his lawyer that he wants – while allowing father to have more time to address the outstanding protection concerns.
[121] The difficulty with this argument is that B.’s life has not remained static over the past 8 months. He has become very much a part of his mother’s life, her home and her family. He has discovered a loving parent and a loving maternal family who had been absent from his life for a long time. He very much enjoys being with that family and he does not want to lose that connection.
[122] The court cannot possibly conclude on those facts that leaving B. in the society’s care for the sole purpose of expanding the father’s access is in B.’s best interests.
[123] Father argues correctly that the Act is remedial in nature, not punitive. It is designed in part to assist parents who “may need help in caring for their children” (paragraph 1(2)1.) Father argues that the society should be focusing on helping him maintain the “autonomy and integrity of the family unit” rather than focusing on disrupting that pre-intervention family unit by looking to the mother in Windsor.
[124] However, those additional purposes of subsection 1(2) of the Act are, in effect, subservient to subsection 1(1) of the Act. Specifically, the “additional purposes” of the Act at subsection 1(2) must be “consistent with the best interests, protection and wellbeing of children”.
[125] While leaving B. in care and expanding father’s access to B. might satisfy the father’s needs, it does not focus on B.’s needs. It does not address either B.’s best interests or his protection and wellbeing.
[126] In determining best interests at this stage of the proceedings, the court considers paragraph 74(3)(x) of the Act to be of pre-eminent importance. Specifically, the risk of harm by returning B. to the care of his father cannot be adequately addressed by a supervision order, regardless of the terms of any such order.
[127] His best interests now require that he be given the opportunity to build on a very positive relationship with the maternal side of his family in Windsor.
[128] With the maternal side of his family, there are few if any significant protection concerns.
[129] With the father, the protections concerns are manifest, with no realistic likelihood that they will be addressed in the short term.
[130] The court concludes on the evidence that the father is not, at present, able to adequately protect B. from the ongoing protection concerns discussed earlier in these reasons.
[131] Accordingly, in such circumstances, it would be wrong in principle, and contrary to the child’s best interests, protection and wellbeing to, in effect, gamble and experiment with B. by placing him with the father.
[132] The father’s lack of insight and understanding into B.’s needs, when compared with the mother’s proactive approach to addressing those needs leads to the conclusion that B.’s best interests and his wellbeing are more ably addressed by being in his mother’s primary care.
[133] All of that said, the court recognizes that a supervision order with the mother must be crafted in such a way as to foster a meaningful opportunity for B. to maintain a connection with his father.
[134] Because of the four-hour drive between the parents’ homes, the supervision order will by necessity result in some loss of school days for B., to maintain a connection between B. and his father.
[135] However, in the court’s view, the relationship with his parents is very important for B. He has made that abundantly clear in the expression of his views and wishes to his counsel. And the importance of those relationships must take priority over missing a couple of days of school each month, at least for the time being.
[136] To date, the drive between Toronto and Windsor has been facilitated by a volunteer driver from the society. That driver transports B. from Toronto to London where he is met by a family friend or relative of mother’s who then drives B. to Windsor. The same thing happens in reverse when B.’s visit with mother comes to an end.
[137] The society advised the court that it has a commitment in place to facilitate these drives for at least the next six months.
8: Conclusion – Supervision Order with mother, access to father
[138] The order the court makes recognizes that it will take some time for B. to settle into his primary home in Windsor. During that adjustment period, B. will be starting at a new school; he will be connecting with doctors and support services in Windsor. This will require an order which reduces, initially, the frequency of his trips between Windsor and Toronto.
[139] I propose to craft an order which maintains a connection between B. and father, recognizing that more time will need to be spent in Windsor in the first number of weeks, but that as the adjustment takes hold, there can be more opportunities to travel into Toronto to spend weekends with father, if circumstances otherwise permit.
[140] It is of critical importance that the father does not say anything to B. that could have the effect of undermining the placement with the mother. The access order which the court makes will be contingent on several things, including a requirement that father refrain absolutely from discussing the court order with B. in any manner which might suggest to B. that the child should be living with father rather than with mother.
[141] Having regard to all of the foregoing, the court makes the following order, varying the temporary order dated April 20, 2021:
(a) B. shall be placed in the temporary care and custody of the mother, P.H., subject to supervision of the society with all the conditions set out in (a) to (k) of the society’s motion dated September 29, 2021 [^11] and, in addition, the following terms. (b) Commencing with the second weekend following B.’s transfer into mother’s home, B. shall have full weekend access with his father, access to run from Friday until Sunday. Weekend access shall occur every third weekend for the first 9 weeks following B.’s transfer to the mother’s home. (c) Following this 9-week period, the weekend access shall expand to bi-weekly access visits. (d) Upon the expansion of father’s weekend visits to bi-weekly, the society shall have a discretion to decide whether any of those visits should either commence on the Thursday or extend to the Monday – but not both. (e) In addition to the in-person weekend access visits, father shall have twice weekly remote access. If available technology permits, the access shall be by Zoom, Facetime or another similar audio/video platform. The access shall be up to 60 minutes in length and shall occur on such days and at such times as the parties may agree from time to time. Failing agreement, the dates and times shall be as determined by the society. Should the parties not have the appropriate technology, the access visits shall be by telephone only. Subject to condition (k), the mother shall ensure that B. is afforded privacy during these access periods. (f) During all access visits – whether in-person or remote – father shall refrain absolutely from saying anything to B., directly or indirectly, that could have the effect of undermining the placement with the mother. (g) In the event B. has schoolwork to complete during the weekend access visit, the father shall ensure that B. is provided with an appropriate setting to do that work, and he shall ensure that B. completes his work prior to the end of the weekend visit. He shall ensure that B. takes his completed schoolwork with him at the end of the weekend visit when he returns to his mother’s home. (h) The in-person access visits are contingent upon father maintaining his home in a safe and hygienic manner. To this end, the society shall be entitled to announced and unannounced visits to the father’s home for the purpose of assessing the condition of the father’s home. In the event the condition of the home falls below the hygienic standard of what the society deems to be acceptable, the society shall immediately give the father notice that he has 24 hours in which to address the hygiene issue. Should father fail to do so, the society is at liberty to cancel the next-scheduled weekend visit. (i) The society shall make best efforts to visit the father’s home at least once during each weekend visit. (j) The father shall facilitate at least one remote visit between B. and the mother during the weekend access visit, for up to 60 minutes in length, and subject to condition (k), the father shall ensure that B. is afforded privacy during those visits. (k) The society will have a discretion to connect to and, if necessary, to supervise any of the remote access visits between B. and either of his parents. (l) The society is at liberty to impose any other reasonable terms and conditions as part of this supervision order. (m) In the event exigent circumstances arise which necessitate a change to this order, including the terms and conditions of the order, any of the parties may bring a motion to the court on short notice.
[142] At the conclusion of the motions on November 10th, I adjourned the case for a settlement conference before Justice Sager on January 19, 2022. I expressed the view that this case should be placed on the assignment court list immediately following the settlement conference if a settlement is not otherwise reached.
Released: November 15, 2021 Justice Robert J. Spence (signed electronically)
[^1]: Strides is a community service agency which had been providing services to B. for a period of time prior to the society’s intervention in March 2021. [^2]: Father said this was his own self-diagnosis. [^3]: The OCL had reported the same to the court at the prior court appearance on June 3, 2021. [^4]: While none of the parties specifically cited the R.M. case in argument, the parties did submit to the court the importance of conducting a contextual analysis. [^5]: ISAND serves children and young adults with autism and other neurodevelopmental disorders. [^6]: A medication used to control thirst and water consumption, leading to excessive urination [^7]: The “also” refers to father’s acknowledgment that the foster home implemented a structured routine for B, as well as B.’s reintroduction into his mother’s home. [^8]: I have chosen not to discuss this prior involvement as the society was involved for a short time only, and that involvement does not materially impact on the court’s decision in the present motions. [^9]: There is a real question about the existence of any meaningful friendships given the long-expressed concerns by the school in respect of B.’s social isolation. See also the court’s earlier discussion of the TPS officer when that officer spoke to B. on March 20, 2021. Additionally, there is no real mention of any specific friends in the evidence before the court. [^10]: He claimed to have mis-diarized the date. [^11]: The court does not find it necessary or useful to list those 13 conditions in these reasons.
