Court File and Parties

Court File No.: C55705/11 Date: 2012-10-25

Ontario Court of Justice Toronto North Family Court

In the Matter of an Amended Protection Application under Part III of the Child and Family Services Act, R.S.O. 1990, c. 11, for the Crown Wardship of D.B., born on […], 2011.

Between:

Children's Aid Society of Toronto Simon Fisch, for the Applicant

Applicant

- and -

B.B. and R.T. Joseph Kary, for the Respondent, B.B. Cynthia Pon, for the Respondent, R.T.

Respondents

Heard: October 23, 2012

Justice: S.B. Sherr

Endorsement

Part One - Introduction

[1] The respondent B.B. (the mother) has brought a motion seeking to transfer this proceeding to St. Lambert Quebec (in the greater Montreal area), and in the alternative to transfer this proceeding to a jurisdiction in Ontario closer to Montreal, such as Cornwall or Ottawa. She also seeks an order increasing her access to her son, D.B. (the child), born on […], 2011.

[2] The Children's Aid Society of Toronto (the society) and the respondent R.T. oppose the mother's motion.

[3] On October 15, 2012, I released my reasons granting the society's summary judgment motion to find the child in need of protection pursuant to clause 37 (2) (b) of the Child and Family Services Act (the Act). I found that a combination of the mother's mental health and substance abuse challenges, and her inability to extricate herself from her relationship with R.T. (that was fraught with violence and conflict), created an unacceptable risk of harm to the child.

[4] The child was apprehended at birth and has remained in society care. The parents both have supervised access to the child. R.T. sees the child once each week for three hours, at the society office. The mother moved to Montreal on July 1, 2012 and now lives there. She comes from Montreal once each week and sees the child at the society office for two-hour visits.

[5] Extensive findings about the history of this case and the protection risks to the child were set out in the summary judgment decision. See: Children's Aid Society of Toronto v. B.B. and R.T., [2012] O.J. No. 4855 (OCJ). I won't repeat, but do rely on the findings made in that decision.

[6] The society has amended their protection application to seek a disposition of crown wardship, no access, for the purpose of having the child adopted. We are close to the one-year statutory limit for the child to remain in care as prescribed in clause 70 (1) (a) of the Act.

Part Two – Request to Transfer the Proceeding to St. Lambert

[6] This court has no jurisdiction to transfer a proceeding to a territorial jurisdiction outside of Ontario, as requested by the mother.

[7] The court's authority to transfer a proceeding to another territorial jurisdiction is set out in section 48 of the Act. This section reads as follows:

Territorial Jurisdiction

48. (1) In this section,

"territorial jurisdiction" means a society's territorial jurisdiction under subsection 15 (2).

Place of Hearing

(2) A hearing under this Part with respect to a child shall be held in the territorial jurisdiction in which the child ordinarily resides, except that,

(a) where the child is brought to a place of safety before the hearing, the hearing shall be held in the territorial jurisdiction in which the place from which the child was removed is located;

(b) where the child is in a society's care under an order for society wardship under section 57 or an order for Crown wardship under section 57 or 65.2, the hearing shall be held in the society's territorial jurisdiction; and

(c) where the child is the subject of an order for society supervision under section 57 or 65.2, the hearing may be held in the society's territorial jurisdiction or in the territorial jurisdiction in which the parent or other person with whom the child is placed resides.

Transfer of Proceeding

(3) Where the court is satisfied at any stage of a proceeding under this Part that there is a preponderance of convenience in favour of conducting it in another territorial jurisdiction, the court may order that the proceeding be transferred to that other territorial jurisdiction and be continued as if it had been commenced there.

Orders Affecting Society

(4) The court shall not make an order placing a child in the care or under the supervision of a society unless the place where the court sits is within the society's territorial jurisdiction.

[8] Subsection 48 (4) of the Act prohibits this court from placing a child in the care or under the supervision of a society unless the place where the court sits is within the society's territorial jurisdiction.

[9] Subsection 48 (1) of the Act defines territorial jurisdiction as the society's territorial jurisdiction under subsection 15 (2) of the Act.

[10] Subsection 15 (2) of the Act gives authority to the Minister of Ontario to designate an approved agency as a children's aid society for a specified territorial jurisdiction. This authority is limited to the Province of Ontario.

[11] The mother asked the court to exercise parens patriae jurisdiction to transfer the proceeding to St. Lambert. The Ontario Court of Justice is a statutory court. It has no parens patriae jurisdiction. See: Reed v. Reed. The Act provides no authority for this court to transfer the proceeding to a territorial jurisdiction outside of Ontario.

[12] The mother, in submissions, asked the court to dismiss the protection application in order that a new case could be started, if necessary, by child protection authorities in Quebec.

[13] There are several flaws with this argument. Procedurally, this request was not made in the mother's motion and the society first learned about it during the submissions by mother's counsel. This request is tantamount to a request for summary judgment on the issue of disposition. Substantively, the evidence does not come anywhere close to justifying granting this request. There are serious child protection issues in this case. It would be irresponsible for this court to terminate this case and leave it to a new child protection agency to obtain the file, familiarize itself with the protection concerns and take the steps necessary to protect the child.

[14] The mother's motion to transfer the proceeding to St. Lambert is dismissed.

Part Three – Request to Transfer the Proceeding to Another Territorial Jurisdiction in Ontario

[15] The court does have jurisdiction to transfer the proceeding to another territorial jurisdiction in Ontario pursuant to subsection 48 (3) of the Act. The mother asks that the proceeding be transferred to the territorial jurisdiction of Cornwall, and in the alternative to the territorial jurisdiction of Ottawa.

[16] The onus to establish that there is a preponderance of convenience to hear the proceeding in another jurisdiction is on the party seeking the transfer. See Children's Aid Society of Prescott-Russell v. B.B. and M.B., [1991] O.J. No. 2540 (Ont. Gen. Div.).

[17] "Preponderance" is defined in Black's Law Dictionary, 4th ed., (St. Paul, Minn.: West Publishing Co., 1951), as follows:

Greater weight of evidence, or evidence which is more credible and convincing to the mind. That which best accords with reason and probability.

[18] Any assessment of the "preponderance of convenience" is to be weighed considering the best interests of the child and not necessarily the wishes or convenience of any of the parties. See Children's Aid Society of Halton Region v. Katherine C., [2002] O.J. No. 382, where the court found that the transfer request, which was made on the eve of trial, would unduly delay the case and was contrary to the child's best interests.

[19] The following factors favour the mother's request to transfer the proceeding:

a) The mother now resides in Montreal. It is very difficult (and expensive, given her limited financial means) for her to travel to Toronto to exercise access and attend at court. She is to be commended for making 14-hour round-trips each week to see the child.

b) The mother would likely be able to see the child more frequently (if ordered by the court) if she lived closer to the child. It is difficult for her to form a bond with the child when she sees the child for such limited time.

c) The mother is obtaining services in Montreal and it will be easier for these witnesses to testify at a court closer to where they live.

d) It would be more convenient for the mother.

[20] These factors are significantly outweighed by the factors against transferring the proceeding as follows:

a) The child has now been in care for 10 months. It is time to move this case forward to trial to make a permanent decision for him. A transfer of the proceeding would likely create a significant delay in making this decision. A new child protection agency and court would have to obtain, investigate and assess this case. In the meantime, the child would be left in limbo.

b) The child would likely have to be moved from his current foster home. The child is well-settled in his current home. It would be destabilizing to move the child from this home and then likely have to move him again once a final placement decision is made. It is not in the child's best interests to make multiple moves.

c) A transfer of the case meets the mother's needs, but not the child's needs. She chose to move to Montreal on July 1, 2012 in the middle of this case. She wanted to be separate from the father, but did not have to move that far away to achieve her objective. It was a puzzling decision.

d) Almost all of the evidence that would be adduced at trial is in this jurisdiction. The mother has a significant history in Toronto and the witnesses who would testify about this are located here. It would be inconvenient for multiple witnesses to travel to Cornwall or Ottawa for a trial.

e) An important issue in this case is the quality of the mother's access with the child. Any witness on this issue is located in Toronto.

f) The mother is on wait-lists for services in Montreal, but has not yet started most of these services.

g) If the proceeding is transferred to Cornwall or Ottawa, it is likely that the child would also be moved. This would adversely affect the father, who is regularly exercising his access in Toronto and has put forward his own plan for the child. He is on social assistance and it would be difficult for him to travel for access and court appearances.

h) This case has no connection to either Cornwall or Ottawa. No party lives there. The child has never lived there. No witnesses live there.

[21] The mother did not meet her onus to establish that there is a preponderance of convenience to transfer the proceeding to either Cornwall or Ottawa. This request is dismissed.

Part Four – Access

[22] Section 58 of the Act permits the court to change a temporary access order and may impose such terms and conditions on the order as the court considers appropriate. The court should always consider the best interests of the child and take into account the "best interest" factors set out in subsection 37 (3) of the Act.

[23] The existing access order provides that temporary access to the parents is in the discretion of the society. The parents exercise supervised access at the society office one time per week– the mother for two hours and the father for three hours.

[24] The mother participated in the society's Therapeutic Access Program from April to June of 2012. In this program she had longer access visits. This program is designed to provide hands-on parenting assistance to the parent and also to assess the parent's level of parenting.

[25] The evidence from the workers at the Therapeutic Access Program was not positive for the mother. They observed that the mother loved the child, but would often have outbursts and struggled to modulate her emotions in front of the child. They observed that she had difficulties consistently meeting the needs of the child on visits. The mother contests these observations and filed evidence from her own supports that argue that the society is imposing rigid standards of parenting on the mother.

[26] The society argues that any increase in access will only benefit the mother, not the child.

[27] The court has some sympathy for the mother's logistical difficulty in traveling from Montreal to exercise access, but it was her choice to move that far away at such an important time in this case.

[28] The summary judgment decision sets out the significant child protection concerns in this case, many of which are recent. The mother's most recent hair-strand drug test showed significant use of cocaine and marijuana from January to April of 2012. This is very concerning given the mother's lengthy substance abuse history. The court was informed that the mother has just taken another hair-strand test. The results should be available shortly. The court is also very concerned about the mother's significant mental health history. She has not obtained a psychiatric report addressing this concern.

[29] There is no question that the mother's access needs to remain supervised.

[30] The court is very impressed with the mother's commitment to seeing the child. She is traveling each week from Montreal, sometimes 14 hours a day, to see him. She loves the child and portions of her visits can be positive. The mother has also been able to connect with very loyal supports in Toronto. Her addiction counselor and supports from the Salvation Army come to almost every court appearance to support her.

[31] The court also observes that the mother is presenting better physically and emotionally on her court appearances than earlier in this case.

[32] These factors support granting the mother as much access as the father.

[33] It might also improve the quality of the access if the mother had some time with the child where she wasn't under the constant watch of the society – access that was supervised by a responsible support person; someone that she was comfortable with. With a trial approaching, the mother should be given every reasonable opportunity to demonstrate that she can parent the child, as long as this does not compromise his safety.

[34] At the hearing of this motion, some of the mother's supports indicated to the court that they would be willing to supervise her visits. The court is aware that the society has to assess any proposed access supervisor, but asks them to start this vetting process. An order will be made that the mother may have a portion of her access supervised by a person approved of by the society, provided that she does not test positive for drug use in her most recent hair-strand test.

Part Five - Conclusion

[35] An order will go on the following terms:

a) The mother's access shall continue to be in the discretion of the society, to be no less than three hours, once each week.

b) If the mother does not test positive for drug use on her latest hair-strand drug test, one hour of her visit may be supervised in the community, by a third person (not a society worker) to be approved of by the society.

c) The balance of the mother's motion is dismissed.

Date: October 25, 2012

Justice S. B. Sherr