Warning
This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Services Act, 2017, which deals with the consequences of failure to comply, read as follows:
87(8) Prohibition re identifying child — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.
87 (9) Prohibition re identifying person charged — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.
142(3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
Court File and Parties
Court File No.: FC-23-CP54 Date: 2024/01/08 Ontario Superior Court of Justice
Between: Children’s Aid Society of Ottawa Applicant – and – E.V.B.H. J.A. Respondents
Counsel: Tara MacDougall for the Applicant Cedric Nahum for E.V.B.H. Enoch Anekwe for J.A.
Heard: November 22, 2023
Endorsement
SHELSTON, J.
[1] The issue is whether J.A. is a “parent” within the meaning of the Child, Youth Family Services Act, 2017 SO 2017, c 14, Sched 1 (“CYFSA”) with respect to the child, A.H.H. The mother opposes the relief sought, by J. A.
[2] I have reviewed the affidavit of Kimberly Johnson-Breen, a child protection worker employed by the Children’s Aid Society of Ottawa (CAS), two affidavits filed by J.A. and the one affidavit filed by the mother. None of the deponents of the affidavit have been cross-examined.
Factual background
[3] The respondent E.V.B.H., (“mother”), is the biological mother of two children, namely A.H.H., and O.A.
[4] The respondent, J.A., (“father), is the biological father of O.A.
[5] The parties met in 2020 and started living together in April 2021.
[6] At that time, the mother had a child from a previous relationship, A.H.H, born in 2020, whose biological father passed away in May 2021. The respondents have one child of their relationship, O.A., born in 2022.
[7] The parties separated on May 27, 2022, due to conflict between J.A. and the mother in the presence of the two children. The mother agreed to leave the children with J.A. and planned to live with her own mother in the short term while looking for housing. The children remained in the care of J.A. At some point, the affidavits do not provide when, the parties reconciled and resumed cohabitation.
[8] On July 27, 2022, there was a verbal dispute between the parents with J.A. remaining in the home with O.A. and the mother leaving with the child A.H.H. and moving to her mother’s home. J.A. advised the child protection worker that he would not allow the mother to have custody or even access to O. A. until they went to court.
[9] The mother commenced a family law application in late August 2022 regarding the child O.A. There was no proceeding with respect to A.H.H.
[10] With the consent of the parties, Associate Justice Fortier granted a final order dated December 1, 2022, that the parties would have equal parenting time for O.A.
[11] The parties reconciled in mid-November 2022, but the affidavits do not state when.
[12] On January 21, 2023, the child protection worker met the parents and advised that there was a daycare spot available for A.H.H. at Headstart, which the mother agreed to take.
[13] On April 7, 2023, the parties had an argument resulting in J.A. leaving the apartment but by April 19, 2023, the parties had reconciled and were living together.
[14] On April 30, 2023, the child protection worker received a call from the mother about another altercation between her and J.A. On May 2nd, 2023, the mother advised the child protection worker that she did not want to have J.A. live in her home. At this point, the parties separated and both children remained with the mother.
[15] On July 4, 2023, J.A. contacted the police reporting that he had been assaulted by the mother. The mother was charged and arrested. The mother left with both children.
[16] On July 11, 2023, the child protection worker informed the parents the due to ongoing pattern of domestic violence and children’s exposure to same, the CAS would be seeking a supervision order.
[17] On July 21, 2023, CAS commenced this protection application seeking an order that O.A. be placed in the care of his biological parents subject to the supervision of the CAS for a period of six months. The CAS sought an order that the child A.H.H. be placed in the care of the mother subject to the supervision of the CAS for a period of six months.
[18] On July 31, 2023, Engelking J. granted a temporary without prejudice order placing the child O.A. in the care and custody of both parents subject to the supervision of the CAS and placing A.H.H. in the care and custody of his mother subject to the supervision of the CAS. At that time, J.A. sought an order that the child A. H.H. be placed in the care of the parents jointly. The mother and the CAS did not consent.
[19] J.A. filed a motion returnable on September 11, 2023, where he sought a declaration that he is a “parent” of A.H.H. pursuant to the Children’s Law Reform Act. The motion was adjourned as service of the motion materials did not leave the CAS and the mother sufficient time to file responding materials, and the CAS and the mother sought details of the access being sought by J.A. The matter was adjourned to October 25, 2023, but the motion was adjourned to November 22, 2023, as the respondents did not agree on the applicable legal test or legislation but did not file any factums setting out the applicable legislation and jurisprudence. The motion was argued on November 22, 2023, where the respondents failed to address in their factums the applicable legal test on the issues of “lawful custody” and “settled intention” set out in the CYFSA. A timetable was set for the exchange of factums, which ended on December 18, 2023.
Legislative and Jurisprudential Framework
[20] Section 2(2) of the CYFSA provides that unless this Act provides otherwise, a reference to this Act to a parent of a child is deemed to be a reference to,
a) the person who has lawful custody of the child; or
b) if more than one person has lawful custody of the child, all of the persons who have lawful custody of the child, excluding any persons who is unavailable or unable to act, as the context requires.
[21] The term “parent” is defined in Part V, CHILD PROTECTION, Section 74(1) of the CYFSA. For the purposes of this proceeding, the relevant portions are as follows:
“parent”, when used in reference to a child, means each of the following persons, but does not include a foster parent:
An individual who has lawful custody of the child.
An individual who, during the 12 months before intervention under this Part, has demonstrated a settled intention to treat the child as a child of the individual’s family, or has acknowledged parentage of the child and provided for the child’s support.
Settled Intention
[22] Counsel for J.A. refers to the Divorce Act, the Family Law Act, the Children’s Law Reform Act and the Succession Law Reform Act to illustrate the various tests that are applicable in determining a non-biological person’s rights and obligations to a child.
[23] Counsel for J.A. alleges that as J.A. is a stepfather of A.H.H. and consequently has rights as applicable under the Divorce Act and in the Children’s Law Reform Act. Counsel for the mother submits that the term “settled intention” is akin to the term being found in “loco parentis”.
[24] As this is a child protection matter, I find that the appropriate definition of “parent” in Section 74(1) of the CYFSA is the applicable test.
[25] I find J.A. must provide prove, on a balance of probabilities, that he has demonstrated a settled intention to treat A.H.H. as his own in the 12 months prior to the commencement of the child protection proceedings or that he had lawful custody.
[26] I accept that the decision to declare J.A. a “parent” within section 74(1) of the CYFSA is discretionary and the court must consider all of the relevant factors on the facts of each case in exercising that discretion.
[27] I agree with the position of the CAS that the issue of settled intention was addressed by the court in a 2002 decision in Children’s Aid Society of Haldimand-Norfolk v A. (LM), 33 RFL (5th) 54. I agree that the factors set out by the court in paragraphs 16 and 17, although under the previous legislation, is applicable under the current legislation including:
The overriding onus rests with the applicant the Society. Intention is in dispute and therefore, individual facts of this individual case require that it be dealt with its own merits. The Society must show more than a conduct of common courtesy or hospitality on the part of the respondent Mr. Robert A. The facts of family life established by evidence must show a pattern of responsibility for the child by the parent arising out of a demonstrated settled intention consciously formed and firmly established. The onus to rebut an existing settled intention rests with the respondent Mr. Robert A. and it is a heavy one. See Spring and Spring, supra, and Cassar-Fleming v. Fleming (1996), 20 R.F.L. (4th) 201, [1996] OJ No 675, 1996 CarswellOnt 789 (Ont. Gen. Div.).
Here, the length of cohabitation in a shared residence, common surname, responsibility for all expenses over a lengthy time, and a history of Children's Aid Society material showing shared parenting for Amelia Rose E. — all show a long-term commitment to Amelia Rose E. by the respondent Mr. Robert A.'s demonstration of a settled intention to treat her as a member of his own family. The onus with respect to the Children's Aid Society case is met and the fact of settled intention is not rebutted by the respondent Mr. Robert A.
[28] In Spring v Spring [1987] OJ No 2655, the court considered various factors in determining settled intention, including the place where the child live, the manner in which expenses of the child were discharged, the interest taken in the child’s welfare, and the responsibilities assumed by the parties for the care of the child, including matters of discipline. The word “settled” denoted quality and not duration and once settled intention has been demonstrated, a change in that intention does not negate the obligation of support.
[29] I find that the affidavit evidence filed by J. A. is vague on many details to the parties’ relationship, their financial arrangements regarding the parties’ vis a vis A.H.H, and the responsibilities assumed by the parties for the care of the child.
[30] I find that the parties resided together from April 2021 until early May 2023. The parties separated on May 27, 2022, and then reconciled. The parties separated on July 27, 2022, and by mid November 2022, the parties had reconciled. The parties separated on April 7, 2023, and reconciled by April 19, 2023. The parties separated on April 30, 2023, and reconciled subsequent to that date. On May 2nd, 2023, the parties separated for the last time.
[31] I find that after separation in July 2022, J.A. was denied parenting time with A.H.H. but he did not commence any legal proceedings and provided no explanation as to why he did not bring any legal proceedings to assert his rights regarding A.H.H. I find that J.A.’s failure to assert any claims with respect to A.H.H. is a factor against his assertion that he has demonstrated a settled intention to treat the child as his own during the parties relationship.
[32] Another factor is that during the entire period of cohabitation, separation, and reconciliation, there is no evidence that J.A. ever provided financial support for the child except for buying him a book plus, after separation in 2023, buying diapers and wipes.
[33] I have reviewed the text messages filed by J.A. In the text messages attached to J.A.’s affidavit dated September 5, 2023, I find that these messages took place in June 2023, after the parties had separated, with the mother reaching out to J.A. to assist her in caring for both children, especially A.H.H. I find that the mother did so based on the close relationship with JA. and A.H.H. In the text messages attached to J.A.’s affidavit dated November 9, 2023, the majority of the text messages were exchanged in April 2021 and May 2022 during the period of cohabitation and disclose J.A. and the mother texting about both children. However, having a close relationship with the child is not the same as demonstrating a settled intention to treat the child as his own.
[34] I do not find that J.A. jointly made the decision with the mother to start A.H.H. in daycare. The evidence of the child protection worker was that during an interview with both parties, she indicated that an opening at daycare was possible, and it was the mother’s decision to register the child. I accept J.A.’s evidence that he attended all of A.H.H.’s medical appointments during his relationship with the mother, but there is no evidence that he made any decisions regarding the child’s health.
[35] J.A.’s evidence is that the mother did not allow J.A. access to A.H.H. from May 2, 2023, to July 4, 2023. Despite the denial of access, J.A. did not commence any proceedings. This is the second time that J.A. was denied access to A.H.H. and he took no proactive legal measures.
[36] On July 4, 2023, the mother was arrested for assaulting J.A. On July 6, 2023, a child protection worker met with the mother to start coordinating parenting time between the parents with O.A. for the months of July and August in accordance with the December 1, 2022, court order. J.A did not have access to A.H.H.
[37] In the year preceding the commencement of proceedings by the CAS, the parties were separated from July 27, 2022 to mid-November 2022, a period of 3 ½ months, from April 7 to April 19, 2022 (12 days) and from May 2, 2023 to July 21, 2023, a period of 2 months and 19 days. The result is that the parties did not live together for approximately 6 ½ months of the 12 months prior to the CAS commencing proceedings during which time A.H.H. remained with the mother.
[38] The burden of proof is on J.A. to provide sufficient evidence to conclude that in the 12 months prior to the intervention by the CAS, that he demonstrated a settled intention to treat A.H.H. as his child. His affidavit evidence provided a little information upon which a court can make such a conclusion. I have drawn my findings of fact and conducted my analysis based on a compilation of the evidence filed by the CAS, the mother and the father. I find that J.A. had a close relationship with A.H.H. but that he has failed to provide sufficient evidence to allow me to conclude, on a balance of probabilities, that he demonstrated the required settled intention.
“Lawful Custody”
[39] All parties agree that the term “lawful custody” is not defined in the CYFSA. Counsel for J.A. submits that there is nothing in the case law that defines the concept other than in the realm of criminal law.
[40] Counsel for the mother submits that he could not find any case law to demonstrate a specific definition of “lawful custody” under the CYFSA and that the only meaning that could likely be attributed to it would be that there has previously been a custody order in the alleged parent’s name.
[41] Counsel for the Society submits that lawful custody may equate to a lawful custody order, as decided by Blishen J., in the Children’s Aid Society of Ottawa v BM 2023 ONSC 880. Further, the Society relies on the decision of Perkins J., in Chou v Chou, 2005 OJ NO 1374. where the court found that in a situation where the parents had agreed that a child would live at her aunt’s house to pursue her education, that the agreement granted the aunt with lawful custody because it was a written agreement that provided express written permission of the parents to allow the child to reside with her aunt.
[42] I find that the term “lawful custody” means when a person has either a court order or a written agreement permitting a child to reside with an individual such as like a separation agreement that defines the scope of the decision-making power. In this case, neither document exists. I conclude that J.A. did not have lawful custody.
Order
[43] I dismiss J. A’s motion to be declared a parent.
[44] In her endorsement, dated July 31, 2023, Justice Engelking adjourned the matter pending the outcome of J.A.’s application to be declared a parent. As J.A.’s motion has been dismissed, the matter is adjourned to January 15, 2024, at 10 AM to set a date for the next step in this proceeding.
Mr. Justice Mark Shelston Released: January 8, 2024