WARNING
The court directs that the following notice shall be attached to the file:
This is a case under Part III of the Child and Family Services Act and is subject to one or more of subsections 48(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:
45.— (7) Order excluding media representatives or prohibiting publication.
The court may make an order:
(c) prohibiting the publication of a report of the hearing or a specified part of the hearing,
where the court is of the opinion that publication of the report 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.
45.— (8) Prohibition: 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.
45.— (9) Idem: order re adult.
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.
85.— (3) Idem.
A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(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.: Toronto C56147/12
Date: 2012-08-08
Ontario Court of Justice
Between:
Children's Aid Society of Toronto Applicant
— And —
L.G., D.H. and P.G. Respondents
Before: Justice Curtis
Motion heard on: 9 May, 12 and 22 June 2012
Endorsement released on: 8 August 2012
Counsel:
- Estee Garfin, for the applicant Children's Aid Society of Toronto
- Andreas Solomos, for the respondent mother L.G.
- Gabrielle Pop-Lazic, for the respondent father D.H.
- Louis Alexiou, for the respondent maternal grandmother P.G.
- Alessandra Goulet, for the paternal great-aunt G.K.D. (not a party)
CURTIS, J.:
Index
- Overview
- Background
- Litigation History
- The Temporary Care Hearing
- Mother's Motion For The Return Of The Child And For More Access
- The Paternal Great-Aunt's Motions For Party Status And For Access
- a. Motion For Party Status
- b. Motion For Access
- Orders
Overview
There were two motions brought, in this status review application, to change the order of Hughes, J. made 1 February 2012:
a. The mother brought a motion on 23 April 2012 for the return of the child to her care, or in the alternative for increased access to the child; and,
b. The paternal great-aunt brought a motion on 2 May 2012 to be added as a party in the case, and for access to the child.
As there were five lawyers appearing for four different parties and a non-party, the positions were complicated. For the purposes of this endorsement, it is sufficient to note these positions:
a. The Children's Aid Society of Toronto ("C.A.S.T.") opposed the return of the child to the mother and opposed an increase in access for the mother. C.A.S.T. took no position regarding the paternal great-aunt's request for party status, but opposed access to the paternal great-aunt;
b. The father and the maternal grandmother supported the mother's motions for the return of the child and for more access;
c. The paternal great-aunt's request for party status and for access was opposed by the mother, and the father; and,
d. The maternal grandmother was consenting to the paternal great-aunt's request for party status, but was opposed to her request for access.
At the time the motion was heard (in May and June 2012) the child was in the temporary care of the C.A.S.T, with access as follows:
a. to the mother, a minimum of two times per week for a minimum of two hours, semi-supervised by C.A.S.T.;
b. to the father, a minimum of once per week for two hours, semi-supervised; and,
c. to the maternal grandmother, to be supervised by C.A.S.T. or a third party approved in advance by C.A.S.T., as arranged between her and C.A.S.T.
Background
The child is K.H., born in 2010, and now 2 years old. The parents of the child are L.G. and D.H.
Although very young, this child has been the subject of child protection litigation constantly for two full years, since his birth, in litigation involving three child protection agencies.
K.H. is the mother's sixth child. Four of her children are crown wards without access, for the purposes of adoption. A fifth child died at four months old in 1999.
The child was apprehended at birth by York Children's Aid Society ("York C.A.S."). The issues then of concern to the York C.A.S were the mother's extensive history with child protection agencies regarding patterns of neglect, substance abuse, poor judgment, violent relationships, and for this child, cocaine use during pregnancy.
Litigation History
The litigation history here is substantial and is significant. These are the important steps and the orders in this matter.
The child was apprehended at birth and by consent order made 25 June 2010, the child was placed in the temporary care of York C.A.S., and the child's service file and this case were transferred to Durham Children's Aid Society ("D.C.A.S.").
On 13 December 2010, by order of Hughes, J., the child was returned to the joint care of the mother and the maternal grandmother with a supervision order for six months.
One month later, on 4 January 2011, the child was apprehended, for the mother's breach of the supervision order, and by order of Timms, J. made 7 January 2011, was placed in the temporary care of D.C.A.S.
The mother moved into the home of G.K.D., the paternal great-aunt, from 16 January 2011 to 5 July 2011.
On 29 April 2011, by consent order of Timms, J., the child was returned to the mother with a six months supervision order. The paternal great-aunt's home was approved and the mother and the child lived with her from 29 April 2011 to July 2011. The father and the maternal grandmother had access to the child. In July 2011 the mother and the child moved out of the paternal great-aunt's home.
On 26 July 2011 the mother was assaulted by the father and the child was placed in the father's care (no apprehension). The mother was charged with assaulting the father, a charge later withdrawn.
On 3 August 2011, D.C.A.S. brought an early status review application, and by order of Scott, J. made 3 August 2011, the child was placed in the temporary joint care of the father and paternal great-aunt with a supervision order.
The father and the child lived with the paternal great-aunt from 27 July 2011 to 29 November 2011. The mother and the maternal grandmother had access to the child, supervised by D.C.A.S., or a third party approved in advance by D.C.A.S., a minimum of once a week, for a minimum of 1.5 hours. The maternal grandmother had access to the child supervised by D.C.A.S. or a third party approved in advance by D.C.A.S., as arranged between her and D.C.A.S.
On 14 October 2011, by order of Timms, J., the maternal grandmother was added as a party to the status review application.
On 29 November 2011 the father and the paternal great-aunt had a dispute about the father not complying with the terms of the supervision order (by allowing the mother access outside the terms of the order). The father left the home of the paternal great-aunt without the child. D.C.A.S. allowed the paternal great-aunt to continue to care for the child, but on 2 December 2011, the paternal great-aunt could not continue and D.C.A.S. took the child into care. Rowsell, J. made an order placing the child in the temporary care of D.C.A.S.
The Temporary Care Hearing
On 21 December 2011, Hughes, J. heard a contested temporary care hearing in Durham. The decision was reserved and a detailed, ten page endorsement was released on 1 February 2012 with the following orders:
a. The child is to remain in care;
b. Specified access to the mother two times per week for three hours semi-supervised, which "access shall be expanded to include overnight and unsupervised and home visits on weekends once the society is satisfied that the mother is no longer in a relationship with the father, and on receipt of a current hair follicle test which confirms that alcohol consumption is not a concern in terms of the mother's parenting ability";
c. The court removed the paternal great-aunt as a party; and,
d. The case was transferred to Toronto.
Hughes, J. made these findings regarding the temporary care decision:
a. The mother's behaviour since the child's birth confirms her longstanding pattern of domestic violence (assault, minimization, reconciliation, repeat), and putting the child at risk by remaining in and preferring relationships with abusive partners over her obligation to protect her child.
b. It is likely that the child will suffer actual harm if returned to the mother at this time;
c. The court found risk of harm to the child under s. 37(2)(b) Child and Family Services Act, R.S.O. 1990, c. C-11, as amended, ("C.F.S.A.") sufficient to meet the test in s. 51(3), and the court found a risk of harm that cannot be addressed with a supervision order;
d. Less disruptive alternatives to care (supervision order and family placement) have been tried and failed;
e. While with the mother under a supervision order:
i. The child was repeatedly exposed to violence (on many occasions, itemized in the Hughes, J. endorsement); and,
ii. The child was repeatedly exposed to adults under the influence of alcohol (on many occasions, itemized in the Hughes, J. endorsement);
f. In the child's then 17 months life, he has had seven changes of placement and has been in care three times;
g. The father has no fixed address;
h. The mother has moved three times since the child's birth;
i. The child is nonverbal, completely dependent, and is not visible in the community;
j. The parents and the maternal grandmother have exposed the child to drinking and family violence in breach of supervision orders and have put the child at risk;
k. Police report more than once that the mother was observed to be under the influence of alcohol while the child was in her care; and,
l. The mother's other children were taken into care as a result of similar concerns.
Hughes, J. set out these expectations for the mother:
Intensive therapeutic counselling in order to overcome her chronic pattern of behaviour related to domestic abuse; and,
Until the mother is able to self-regulate and modify her behaviour by learning to avoid situations and persons that put her at risk of assault and therefore the child at risk of harm, the mother should only be permitted semi-supervised contact for a defined period of time.
In March 2012 the file was transferred from D.C.A.S to C.A.S.T. Although an amended status review application does not appear to have been filed, C.A.S.T. advised the court that their current position on the status review application is to seek crown wardship no access, for the purposes of adoption.
Mother's Motion For The Return Of The Child And For More Access
The mother's motion is a request to change the order made on the temporary care hearing by Hughes, J. on 1 February 2012. Significantly, the mother brought this motion to change the order of Hughes, J. barely two months after the order was made.
This is a temporary hearing for the purposes of obtaining a temporary order prior to trial. The moving party must show a material change since the previous order was made, and then the court applies the best interests test in s. 37(3) C.F.S.A.
The motion is brought under s. 64(8) C.F.S.A. In a status review application, any temporary order is governed by s. 64(8) C.F.S.A.: Children's Aid Society of Brant v. L. (J.), 2008 ONCJ 527, para. 23.
There is a presumption that the original protection order is correct. The onus to change a status quo (whether it be regarding custody or access) on a temporary basis in a status review case is on the party attempting to change it. The principle is based on the correctness of the original order, not on the role or identity of the party asking to change it: Catholic Children's Aid Society of Toronto v. E.M., [2007] O.J. No. 4652, para. 17.
The existing order should be presumed to be appropriate unless the moving party (the mother here) can show why it is now in the child's best interests to change it: Catholic Children's Aid Society of Toronto v. E.M., [2007] O.J. No. 4652, para. 19.
For the mother to be successful in this temporary hearing, the best interests of the child must require a change in the care of the child: Children's Aid Society of Brant v. L. (J.), 2008 ONCJ 527, para. 25.
The proper test to determine the issue on a temporary basis is the status review "best interests" test — now subsection 64(8) — on a temporary basis, and not the risk-of-harm test for other temporary orders (e.g., s. 51): Children's Aid Society of Brant v. L. (J.), 2008 ONCJ 527, para. 27.
The mother says she has done the following to address the concerns of C.A.S.T.:
a. She has been co-operating with D.C.A.S. and C.A.S.T.;
b. She took the Nobody's Perfect parenting course;
c. She has had personal counselling of 12 sessions over eight months ending in February 2011;
d. She took a 16 week anger management course;
e. She has had two hair strand tests (in October 2011 and March 2012) which were negative for cocaine;
f. She has been separated from the father since 27 July 2011; and,
g. She has been consistent with access.
C.A.S.T. says there has not been a material change since the order of 1 February 2012. The mother has had the child in her care on two occasions (with supervision orders), from December 2010 to January 2011, and from April 2011 to August 2011 (for a total period of five months). One of the drug tests the mother relies on predates even the temporary care hearing, and the counselling the mother relies on long predates the temporary care hearing (by almost a year). The C.A.S.T. says there has been no change in the mother's behaviour or circumstances to warrant a change in the child's circumstances.
As recently as April 2012 (after the mother's current motion to change was brought), during a visit by the social worker to the mother's home, the mother was angered, irate, yelling, swearing, and accusing the social worker of kidnapping the child. The mother did not even ask the worker about the child during this meeting.
The mother has not taken steps to address her anger and the concerns about her mental health. The mother needs to accept that these are valid continuing concerns and to take steps to address them (likely to begin intense therapy).
The child has some challenges. He has been in more than eight placements since birth, including three placements while in foster care. He has some delays in speech. He often bangs his head on the floor of the crib and is injuring himself.
There is no evidence to support a change in the child's placement, or to support a change in the access by the mother. The mother falls well short of satisfying the onus on her that returning the child to her care, or even increasing her access to the child, is in the child's best interests at this time.
These are the court's findings and current concerns about the mother:
She is unable to regulate her own emotions and behaviour. Interestingly, she does not deny her emotional outbursts, but blames C.A.S.T. for her emotions and lack of control;
She has a history of non-compliance with supervision orders, a very serious matter;
She has a long pattern of relationships involving domestic violence;
She is unable to provide an emotionally stable environment; and,
She has possible undiagnosed mental health concerns and she does not believe she needs psychiatric assessment.
Hughes, J. also made an order for possible increase in the mother's access (paragraph 8 of the endorsement), to include overnight and unsupervised and home visits on weekends, conditional on the mother satisfying C.A.S.T. that she is no longer in a relationship with the father, and on receipt of a current hair follicle test confirming that alcohol consumption is not a concern. That order is not workable, and is not appropriate at this time, and shall be changed.
The mother's motion to return the child to her and her request for increased access are both dismissed.
The Paternal Great-Aunt's Motions For Party Status And For Access
The Paternal Great-Aunt's Motion For Party Status
On 1 February 2012, Hughes, J. removed the paternal great-aunt as a party, a request brought by D.C.A.S in a Form 14B motion.
The judge refers to these reasons for removing the paternal great-aunt as a party:
a) She is no longer caring for the child;
b) She no longer wishes to care for the child; and,
c) The parents do not want her caring for the child.
The paternal great-aunt was a party on the early status review application issued 3 August 2011, seeking to place the child jointly with the father and the paternal great-aunt. The child was placed with the father and the paternal great-aunt, and was ultimately removed solely from the care of the paternal great-aunt, on 29 November 2011. As a result of her standing as the joint legal care-giver to the child from 3 August to 2 December 2011, the paternal great-aunt was a party under Family Law Rules, O. Reg. 114/99, as amended, R. 7(4). The paternal great-aunt was not an added party. She was properly a party.
With respect to the motions judge, it is hard to understand how the paternal great-aunt was removed as a party, or why it happened. There is almost no analysis in the endorsement as to why this order was made. There is no reference in the endorsement to any authority for the court to make such an order. There is no such provision in the Family Law Rules.
There are several cases which deal with a request to remove a party. In Windsor-Essex Children's Aid Society v. R.L., 2012 ONCJ 325, Bondy, J. found that there is no jurisdiction under the C.F.S.A, the Family Law Rules, or at common law to exclude a parent as a party (and hence avoid the necessity for service) under subrule 7(4) of the Family Law Rules. In Children's Aid Society of Toronto v. O.(L.), Spence, J. reaches the opposite conclusion, and finds that there is jurisdiction to remove a parent as a party under R. 7(3), taking into account that the paramount purpose of the C.F.S.A. is to ensure that children are protected from harm, and where the court concludes that it would be contrary to the child's best interests, protection and well-being if the parent were party to the court case.
In these cases, the party sought to be removed was a parent. In these cases, the parent who was a party was found to be an actively harmful participant (harmful to the child). As well, both these cases somewhat intermingle the issue of party status and the question of service or notice. Party status and service are issues which are discrete and separate, and for which there are different tests.
The court has doubt that there is any authority to remove a party. It would be possible to rely on the R. 7(4) provision "unless the court orders otherwise" to do so, but there appears to be little case law finding this, and none of binding authority.
The paternal great-aunt was a party under R. 7(4). She may also have qualified as a parent, and therefore as a party, under C.F.S.A. s. 37(1)(c) or (e). In any event, she was a person with party status, and was a named party, and not a party added under Rule 7.
If a party in a status review application is no longer offering a plan and no longer participating in the litigation, the court might have simply noted them in default and moved the case forward without their participation. It is not necessary to remove the person as a party in order to do that.
Rule 7(5) provides that the court may order that any person who should be a party shall be added as a party. Rule 7 gives judges a very broad discretion to add persons as parties. However, the rule gives no direction as to how the court should exercise its discretion.
The power to add a person as a party to a case should be used where necessary, and where the case cannot be disposed of fairly and justly unless the purposed party has the chance to be heard by the court.
In considering whether to add a person as a party, the following factors are relevant: Children's Aid Society of London and Middlesex v. S.H., [2002] O.J. No. 4491, para. 22 and 24:
Whether the addition of the party is in the best interests of the child;
Whether the addition of the party will delay or prolong proceedings unduly;
Whether the addition of the party is necessary to determine the issues;
Whether the additional party is capable of putting forward a plan that is in the best interests of the child; and,
Whether the person seeking to be added as a party has a legal interest in the proceedings.
C.A.S.T. concedes that adding the paternal great-aunt as a party is unlikely to unduly delay the case, that the paternal great-aunt did put forward a plan, and that the paternal great-aunt does have a legal interest in the case.
The involvement of an additional party may add some delay to the case, but it will not unduly delay the progress of the case. She is already represented by a lawyer. In any event, the risk of possible delay is a risk that is worth taking, on balancing all the interests at stake here, as her participation may result in a suitable placement for the child other than foster care.
It will always be in the best interests of children in care, particularly when the agency is seeking permanent placement, to ensure that all possible plans of care are put forward and investigated. K.H.'s best interests will be served by a careful examination of the best long-term plan for him. This will not happen if the paternal great-aunt is not added as a party. Neither the mother nor the father is offering the paternal great-aunt as an alternative plan, nor is C.A.S.T. As a result, if she is not added as a party and permitted to put forward her plan, the court will not be able to consider it, and may not even learn of it. C.A.S.T concedes that the fact that no other party is proposing the paternal great-aunt as a plan for the child is her strongest argument in support of her motion to be added as a party.
The addition of the paternal great-aunt as a party is necessary to determine the issues.
It is not necessary, at this stage, to determine whether the plan of the paternal great-aunt would be successful. The question at this stage is whether the plan of the paternal great-aunt merits consideration: Catholic Children's Aid Society of Toronto v. D.H., [2009] O.J. No. 125, para. 13.
The fact that the paternal great-aunt was a caregiver for the child and was approved as a care-giver by D.C.A.S. is influential in determining whether she should now be given party status.
The court finds that the paternal great-aunt was a party under the Family Law Rules and the C.F.S.A., notwithstanding the order of Hughes, J. removing her as a party. However, as an order is now required for her to have legal party status, there shall be an order adding her as a party under rule 7(5).
The Paternal Great-Aunt's Motion For Access
The paternal great-aunt has a history of care-giving and involvement with the child. On several occasions, the parents chose to involve her in caring for the child. Each of the parents lived with her at one time or another. The child lived with her for about seven months in 2011. The child protection agency also involved her in caring for the child.
The paternal great-aunt's home was approved by D.C.A.S., and the mother moved in with the paternal great-aunt with the child from 29 April 2011 to July 2011.
In summer 2011 the paternal great-aunt was seeing the child twice a week, in visits at the apartment of the mother and father.
On 27 July 2011, the placement of the child with the mother and the father broke down, and on 3 August 2011, the child was placed in the joint care of the paternal great-aunt and the father, with no access to the mother, until 27 November 2011.
Then from 27 November 2011, the child was placed with the paternal great-aunt alone, and C.A.S.T asked her to submit a plan of care for the child.
The child was in the care of the paternal great-aunt when she last came into care.
The paternal great-aunt's evidence was that she assumed she would continue to have access to the child when the child was placed in care in December 2011.
The paternal great-aunt is 47 years old, separated, and has no children. She is a retired registered nurse working as the manager of retirement home. A kinship assessment about the paternal great-aunt dated 4 June 2012 was presented in evidence. The concerns raised in the assessment related to a period in her life where she had lived in a religious sect, from the age of 12 to 39 years. She left the sect over nine years ago. She has been honest and upfront with C.A.S.T. about this period of her life. And she was previously approved as a care-giver by other agencies.
It is time for the paternal great-aunt to be properly evaluated as a care-giver for the child. This cannot happen if she is not having any access to the child. It is surprising that C.A.S.T. has not re-instated access, and has, for so long, so rigidly opposed her request for access.
It is in the child's best interests for the court to be able to determine whether she is an appropriate caregiver and to examine the quality of her relationship with the child. C.A.S.T. has a positive obligation to make these investigations. That cannot happen if she is not having access to the child.
Orders
The paternal great-aunt is added as a party under Rule 7(5).
The mother's motion for the return of the child to her care is dismissed.
The mother's motion for increased access to the child is dismissed.
The order of Hughes, J. regarding access to the mother, specifically paragraph 8 of the endorsement of 1 February 2012, is set aside entirely.
The mother shall have access to the child at the discretion of C.A.S.T, to include a minimum of two times per week, for two hours, semi-supervised at the offices of C.A.S.T.
The father shall have access to the child at the discretion of C.A.S.T, to include a minimum of once per week for two hours, semi-supervised at the offices of C.A.S.T.
The paternal great-aunt shall have access to the child at the discretion of C.A.S.T, to include a minimum of two times per week, for two hours, semi-supervised at the discretion of C.A.S.T.
Released: 8 August 2012
Justice Carole Curtis
