WARNING
The court hearing this matter directs that the following notice should 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.
(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.
(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.
No. C53328/11
DATE: 2013-09-16
Citation: Children’s Aid Society of Toronto v. A.F., 2013 ONCJ 503
Ontario Court of Justice
47 Sheppard Avenue East
Toronto, Ontario M2N 5N1
IN THE MATTER OF:
The Child and Family Services Act, R.S.O. 1990, c. 11
AND IN THE MATTER OF:
So.F., born […] 2006,
Je.F., born […]2009, and
Ja.F., born […] 2010
BETWEEN:
Children’s Aid Society of Toronto
Applicant
- and –
A.F. (mother), D.W. (father of Je.F. and Ja.F.) and L.M. (father of So.F.)
Respondents
Before Justice Robert J. Spence
Motion Heard 11 September 2013
Reasons for Judgment released 16 September 2013
Ms. Mae-Tuin Seto ………for the applicant society
Mr. Colin Tobias ………….for the respondent mother
Ms. Lauren Israel…………for the Office of the Children’s Lawyer, Legal representative of the child So.F.
Respondent father L.M., appearing in person
Respondent father D.W. not appearing, having previously been noted in default
Introduction
[1] This is a motion brought by the Children’s Aid Society of Toronto (“society”) seeking an order which would permit the three children, So.., Je.. and Ja.. to travel to Jamaica for an extended access visit[^1] with the paternal grandmother.[^2]
[2] The motion is supported by the mother. The Office of the Children’s Lawyer, which represents only the oldest child, So.., opposes the society’s motion. The father of So.., who appeared on the motion unrepresented also opposes the society’s motion.
[3] Counsel, Mr. Herb Stover appeared in court, representing the maternal grandmother, who also opposes the motion. In that regard, Mr. Stover had previously filed an affidavit on behalf of his client setting out the factual basis for the maternal grandmother’s opposition to the society’s motion. However, the maternal grandmother is not a party in this litigation, and I upheld the society’s objection by refusing Mr. Stover’s oral motion at the outset of argument to add the maternal grandmother as a party for the motion only.
Background
[4] The three children are the subject of what is now an amended status review application, currently seeking Crown wardship for the purpose of adoption. The youngest, Ja.. is a three year old female. The middle child, Je.. is a four year old male, and the oldest child, So.. is a female who will be seven years old in less than three months.
[5] All three children were initially apprehended by the society in February 2011. Pursuant to a Statement of Agreed Facts signed by the parties[^3], on July 26, 2011 all three were found to be in need of protection pursuant to section 37(2)(b)(i) of the Child and Family Services Act (“Act”). So.. was placed with her mother on a six-month supervision order, while the younger two children were made society wards for a period of four months and two weeks.
[6] On April 26, 2012, the court made a further supervision order on the status review application, placing So.. with her mother for another six months. The younger two children continued to remain in foster care pursuant to a society wardship order.
[7] In July 2012, the society apprehended So.. from her mother, and the court ordered that she remain in the society’s temporary care and custody.
[8] Following a branch conference held at the society’s offices, the society amended its status review application and, on September 7, 2012, served that amended status review application seeking Crown wardship for all three children. By then, the younger two children had been in care for 19 months, well in excess of the 12-month statutory time limit pursuant to subsection 70(1) of the Act. Because of that, I ordered the parties to attend at the next trial Assignment Court.
[9] Due to trial scheduling priorities, the case could not be assigned for trial and the matter returned to me as case management judge on November 26, 2012. By then, So.. had been in care for 17 months, and the two younger children had been in care for 23 months. The matter was then scheduled to be heard on a summary judgment motion to be brought by the society, returnable on March 19, 2013.
[10] However, in the interim, the society identified possible kin caregivers in Jamaica who indicated a willingness to care for the children on a long-term basis. The society was also able to ascertain the whereabouts of D.W., the father of the two younger children, more specifically, that he was in jail in the Bahamas. I adjourned the matter to allow the society to investigate the proposed plan, as the society was expressing some initial optimism about the plan.
[11] On April 9, 2013, the society continued to express its optimism to the court about the plan being proposed by the paternal grandmother (“grandmother”) in Jamaica.[^4] In addition, the society advised that the father of the two younger children had now been released from jail in the Bahamas and had returned to Jamaica. He too was proposing a plan to care for the children, and the society was seeking further time to investigate his plan, as well as the grandmother’s plan.
[12] When the matter next returned to me on April 23, 2013, the society advised that the grandmother’s plan in Jamaica was solidifying, and the society was likely to approve it, subject to the ongoing investigation by International Social Services.
[13] On the following court date, June 13, 2013, the society advised the court that it had located So..’s father, L.M. I gave L.M. leave to late file his Answer/Plan of Care and, at the same time, I made an order pursuant to section 38 of the Act, appointing counsel for So..
[14] The society’s initial plan had been to bring the grandmother to Toronto so that she could be gradually introduced to the three children, none of whom she had ever previously met. This would have allowed the society to observe her interaction with the children and determine the children’s ability to develop a sufficient comfort level with the grandmother. However, the grandmother was denied a visa to travel to Canada by the Canadian government.
[15] As a result, at the July 30, 2013 court appearance, the society advised that it was developing a plan to send the children to Jamaica with a society worker, who would remain in Jamaica for several weeks to assist in integrating the children with the grandmother, and to ensure that any proposed permanent placement with the grandmother was viable, before the worker would then return to Canada, leaving the children behind with the grandmother.
[16] At the same court appearance the society revealed that it had identified another possible kin caregiver in Jamaica, a paternal great aunt. However, this person did not live in the same town as the grandmother but, rather, about two hours away from the grandmother.
[17] The society sought leave to bring a motion to permit the children to travel to Jamaica so that it could implement the Jamaica plan with the grandmother, or a combination of the grandmother and the paternal great aunt.
[18] At the same court appearance I made an order for temporary supervised access to So..’s father, L.M.
[19] The scheduled motion date of August 21, 2013 had to be adjourned because of the last-minute unavailability of one of the counsel. The motion was rescheduled to September 11, 2013. On that date all parties attended and the motion was fully argued.
The Society’s Plan
[20] In support of the society’s motion it filed three reports. The Child Development Agency (“CDA”) situated in Kingston, Jamaica, prepared a report dated February 12, 2013.
[21] The Westmoreland Health Department, situated in Westmoreland, Jamaica prepared a brief report which consisted of some photographs of the grandmother’s home and a “medical certificate”, which briefly stated that the grandmother had “no complaints”, the grandmother’s family history disclosed no “chronic illnesses”, and in response to the question whether the grandmother is “physically and mentally able to carry out normal activities”, the certificate responded “yes”.
[22] The third report, prepared by ICAS Services Limited (“ICAS”) in Jamaica (as an apparent agent for the Jamaica society), was directed at assessing D.W., the father of the two younger children as a possible caregiver. That report was prepared following an assessment conducted by ICAS in May 2013.
[23] Based on all of that material, as well as the society’s own discussions and investigations, the society now takes the position that the current application which seeks Crown wardship for the purpose of adoption of all three children, is no longer the “less disruptive alternative”, as required by subsection 57(3) of the Act. Instead, the less disruptive alternative, the society argues, is placement of the children with the Jamaica kin.
[24] The following is how the society proposes that plan would unfold. The society would assign two workers to travel with the children to Jamaica and remain with them for
not less than 2 weeks and possibly up to 4+ weeks to ensure they are comfortable and safe in their new environment, and oversee their contact and relationship with [the grandmother].[^5]
[25] The society proposes to meet with the extended family members in Jamaica and assist them with their integration with the children and the children’s own integration with the grandmother. In addition, the society would connect with the local agency and work with that agency in the implementation of the proposed placement with the grandmother.
[26] The society workers would not leave Jamaica until the workers are
satisfied that the placement process and access have gone well, and that the children feel safe and are settled in well with [the grandmother].
[27] And finally, in furtherance of the plan, the society worker deposes that,
Following [the workers’] return to Canada, the society would continue monitoring the placement in Jamaica for several months, through reports from the Child Development Agency, as well as telephone conversations with the family members. Only once the society is satisfied that the placement has gone well would it recommend a termination of the current court proceedings in Canada.
Discussion of the Society’s Plan
[28] At first blush, there appears to be some merit to the society’s plan. It is clear that considerable thought has been put into this plan and the proposal itself necessitates the expenditure of substantial society resources – both in time as well as in dollars.
[29] Furthermore, the society is correct in submitting that the court is required to consider the less disruptive alternative before the court can make an order for Crown wardship. And, in this regard, all other things being equal, a close kin plan will often qualify as a less disruptive alternative.
[30] However, a closer analysis leads me to conclude that the society’s plan does not meet the needs of the children and the objectives of the Act.
[31] Section 57 of the Act provides [my emphasis]:
Order where child in need of protection
- (1) Where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders or an order under section 57.1, in the child’s best interests:
[a supervision order or a society wardship order or a Crown wardship order]
Consecutive orders of society wardship and supervision
Court to inquire
(2) In determining which order to make under subsection (1) or section 57.1, the court shall ask the parties what efforts the society or another agency or person has made to assist the child before intervention under this Part. 2006, c. 5, s. 13 (4).
Less disruptive alternatives preferred
(3)The court shall not make an order removing the child from the care of the person who had charge of him or her immediately before intervention under this Part unless the court is satisfied that alternatives that are less disruptive to the child, including non-residential services and the assistance referred to in subsection (2), would be inadequate to protect the child. 1999, c. 2, s. 15 (1).
Community placement to be considered
(4)Where the court decides that it is necessary to remove the child from the care of the person who had charge of him or her immediately before intervention under this Part, the court shall, before making an order for society or Crown wardship under paragraph 2 or 3 of subsection (1), consider whether it is possible to place the child with a relative, neighbour or other member of the child’s community or extended family under paragraph 1 of subsection (1) [a supervision order] with the consent of the relative or other person. R.S.O. 1990, c. C.11, s. 57 (4).
Accordingly, while the less disruptive order must be considered by the court before it can order Crown wardship, it must be the less disruptive order which is consistent with the child’s best interests.
[32] I turn next to Subsection 37 of the Act, which provides:
Best interests of child
(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall take into consideration those of the following circumstances of the case that he or she considers relevant:
The child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs.
The child’s physical, mental and emotional level of development.
The child’s cultural background.
The religious faith, if any, in which the child is being raised.
The importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family.
The child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community.
The importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity.
The merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent.
The child’s views and wishes, if they can be reasonably ascertained.
The effects on the child of delay in the disposition of the case.
The risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent.
The degree of risk, if any, that justified the finding that the child is in need of protection.
Any other relevant circumstance. R.S.O. 1990, c. C.11, s. 37 (3); 2006, c. 5, s. 6 (3).
[33] Sections 57 and 37(3) are the primary legislative underpinnings that pertain to the motion now before the court.
[34] In my view, it is contrary to the best interests of all three children that they be removed from Canada and placed with the proposed kin in Jamaica. There are a number of obstacles which force me to this conclusion. I will discuss these obstacles in the following sections of my reasons.
- The Father of Ja.. and Je..
[35] From the very outset of these proceeding more than 2-1/2 years ago, the father has not been involved in the lives of his children, or with his stepdaughter So.. He never came to court; he never filed an Answer or a Plan of Care; and it appears he has not shown any interest whatsoever in seeing his children or making a connection with them. Until recently, he was in prison in the Bahamas. Realistically, it is difficult to conclude that he would be anything other than a complete stranger the children, certainly to the youngest two.
[36] The Jamaican agency which interviewed him concluded that he had no real understanding of why the children were apprehended by the society, or that he had sufficient insight or willingness to ascribe any responsibility for the protection concerns to the children’s mother from whom the children were initially apprehended, in circumstances that can only be described as horrendous.
[37] The father is aware that the society is adamant that the children ought not to be in the care of the mother. And yet, despite this, the investigation reveals that the father and the mother have maintained an ongoing relationship with one another and appear likely to get married. From this, it is only a small step to conclude that there is a strong possibility that the mother will move to Jamaica to be with the father, where he apparently intends to reside permanently.
[38] The father made it clear to the Jamaican investigators that he considers himself and the mother to be integral parts of their children’s lives. According to the investigator, the father said that
it would not be his intention to completely hide the children from their mother but himself [the father] and his mother [the grandmother] will supervise her [the mother’s] contact with the children.[^6]
[39] While the father says that the grandmother would be the legal caregiver for the children if they were to live in Jamaica, it is clear that he has every intention of being an active part of their lives. And it is logical for this court to conclude that if he is married to the mother, the mother would also play an active role in the children’s lives.
[40] Insofar as the viability of the father’s own plan to care for the children is concerned, the agency in its report to this society concluded [my emphasis, except where otherwise indicated]:
It is apparent that [the father] is unable to put the needs of his children ahead of his own relationship with [the mother]. His continued relationship and potential marriage to her compounded by the fact that he ascribes no responsibility to her, in the children being placed in foster care, makes his viability questionable. [The father] would therefore not be recommended at this time as a viable care giver for his children. [the agency’s emphasis]
[41] Accordingly, what the court is left with is this: a father who is not recommended as a caregiver on his own, yet who very much intends to be involved in the children’s lives and, moreover, a father who would take it upon himself to supervise (with the grandmother), the mother’s contact with the children. Two parents who are justifiably seen as potentially harmful to the children’s wellbeing who would be actively involved in the children’s lives, and all of this would be occurring in a foreign jurisdiction.[^7] This, in my view, is a recipe for a bad outcome for these three children.
- The Paternal Great Aunt
[42] Following the assessment of the grandmother in Jamaica, the society learned about the paternal great aunt (“aunt”) of So.., and her apparent willingness to assume the child care responsibility for So.. The aunt lives in St. Catherine, which is “approximately two hours away from Negril where [the grandmother] lives.”[^8]
[43] As was the case with the grandmother, the aunt was unable to secure a visa to travel to Canada. She has never met So.. Her plan would be to care for So.. only, rather than all three children.
[44] According to the society, the aunt said that she had spoken with the father of So.. and that he supports her plan to care for So.. However, as I noted at the outset of these reasons, the father of So.. attended on this motion and stated the contrary, namely, that he does not wish his daughter to move to Jamaica.
[45] One of the society’s arguments for sending the children to Jamaica is that all three siblings could live together if they were to be cared for by the grandmother. However, the proposal that So.. live with the aunt would clearly run counter to that perceived benefit.[^9]
[46] The ICAS in Jamaica had a number of positive things to say about the aunt and her caregiving ability. Despite this, it is clear from the ICAS report that the aunt has limited financial resources. In that regard, ICAS stated [my emphasis]:
[the home] has a few safety hazards that needs to be eliminated; elimination of these hazards and minor repairs and refurbishing to the home will also serve to make it more comfortable. . . . [the aunt] will require financial support to refurbish some parts of the home and eliminate the safety hazards that exist.
[47] Insofar as the financial support is concerned, the society worker deposed that she had spoken with the aunt who, in turn, stated that the father of So.. would “support her financially in caring for So..” Based on what I heard during the course of argument, and particularly given the father’s opposition to the society’s plan, I must conclude that this financial support is most unlikely to occur.
[48] Finally, I note that ICAS, while recommending the aunt’s home as a suitable placement, stated [my emphasis]:
The interviewer is concerned about the culture shock/difference [which] So.. may experience coming from Canada into the Jamaican environment and suggest she be provide [sic] with an introduction of the culture through some simple reading material in the form of Jamaica stories & folklore.\
- The Grandmother
[49] CDA did conduct an investigation and prepared a thorough report in respect of the grandmother’s plan to care for all three children. It appears from the report (and I am prepared to accept for the purposes of the society’s argument) that the grandmother is sincere in her willingness to care for the children. However, there are numerous problems associated with such a proposal. I summarize those problems as follows:
- When she was asked by the CDA worker what her understanding is about why the children were brought into the society’s care the grandmother responded that she really does not know, other than that the mother required help in caring for the children. When the grandmother herself directly asked the mother for the reason the children were apprehended, the mother failed to give the grandmother a “definitive response”.[^10] The Jamaican worker stated [my emphasis]:
it is of concern that [the grandmother] has not seen it fit and urgent to enquire from [the mother] the truth about the circumstances under which the children were removed. It would be expected that she would want to have details on the matter given that she indicates such keen interest in the children’s well-being.
The grandmother stated her belief that the mother is a “caring mother who just needs help to manage her situation.” It is the grandmother’s naiveté about the mother’s ability to provide acceptable care for the children that is most concerning to this court.
The grandmother did state that she intends to keep the children in her care, not the care of the father or the mother (if the mother moves to Jamaica). However, she told the CDA worker that the children
know their mother and keeping her from contacting them might cause them to feel hurt. She does not believe that the mother should be totally cut off from the children. [my emphasis]
When the Jamaican worker asked the grandmother if she would be willing to adopt the children, she stated that she did not think it would be “necessary as [the father] is willing to do his part in caring for the children”. . . . [and the grandmother] “believes [the father] should be allowed to fulfill his role in their lives.” [my emphasis]
The grandmother lives in what could be characterized as a family compound.[^11] A number of relatives live in the same compound, including her brother Terron, who abuses drugs. The various family members’ homes are about 15 yards apart from each other. Given the close proximity of these homes, the worker expressed the concern that “it would be difficult to prevent Terron’s contact with the children”. It is trite to state that having the children live beside a drug abuser would be contrary to their best interests.
The grandmother’s home needs extensive renovations in order to make it habitable. In the meantime the grandmother is living in the home of the father of two of her own sons. However, the grandmother is of very modest financial means and it is not clear from the CDA report that there will be sufficient funds to complete the needed renovations of her own home. The expected completion date was to have been in August 2013, but there is no evidence that the renovations were in fact completed, or when that will ever occur.
The evidence strongly suggests that it is doubtful the grandmother has the financial wherewithal to support the three children. In fact she inquired whether she would be able to obtain financial assistance from the “Canadian Government towards the maintenance of the children”. The Jamaican worker interviewed those persons identified as possible supports for the grandmother and all indicated a willingness to offer “moral support” but none of the family members interviewed offered any ongoing financial assistance. The Jamaican worker expressed her concern about the grandmother’s financial capability, particularly given that she has stated that she has no intention to seek employment.
The worker stated that the grandmother is “quite passive”. The combination of her passivity together with her belief that the mother and the father should be involved in the children’s lives is of grave concern to the court. If the parents decided to become actively involved with the children, or even to remove the children from the grandmother, how would the grandmother be able to step in and prevent this from occurring? Certainly, this court would be unable to do anything to prevent that from occurring, or to remedy that situation if it were to occur.[^12]
Additional Comments and Concerns
[50] The children have lived all their lives in Canada. As noted earlier, re-locating the children to Jamaica would create a culture shock for the children.[^13] I am very doubtful that this culture shock could be ameliorated in any meaningful way simply by giving So.. some “simple reading material”. In fact, even telling So.. that she is about to move to another country to live the rest of her life is something that would likely be beyond her conceptualization, given her young age. One can only imagine what it would be like for her to wake up in another country in circumstances so very different than what she has experienced for almost seven years of her young life.
[51] What are the health/medical services that would be available to the children in Jamaica? Are they free? If they are not free, are they subsidized? If they are neither free nor subsidized, how costly are they? What is the grandmother’s ability to pay for such essential services? How close are medical facilities to the home of the grandmother? None of these questions are answered. If the medical care must be paid for, on the evidence before the court, I am far from satisfied that the grandmother would have the financial ability to pay for such services, much less feed and clothe and otherwise support three additional members of her family.
[52] D.W. is the biological father of Je.. and Ja.. He is not the biological father of So.. Nor is the grandmother biologically related to So.. The grandmother says this would make no difference in how she would treat So.. But how can this court be satisfied after a “2 to 4+ week” test drive that this would in fact turn out to be the case? Further, even if the grandmother acted in the even-handed way she says she would act, what about the father? How can the court have any certainty that the father would be even-handed in his treatment of So..? How can this court have any degree of confidence that D.W. won’t simply abandon So.. to the Jamaican child welfare agency? Given the likelihood of his active involvement in the lives of the children, these unanswered questions give this court considerable concern.
[53] The court also has legal/jurisdictional concerns. I posit the following possible scenarios. What if the society’s workers decide after four weeks that the children’s integration is not going well and they wish to bring the children back to Canada; but the father steps in and he decides to take the children into his own care and resists the society’s efforts? Alternatively, what if the society is content that things are going well with the grandmother caring for the children and the workers then return to Canada and attempt to monitor the situation from Canada and then some time afterwards the father decides to take the children into his own care? If either of the foregoing was to occur in the face of the society’s decision to remove the children from Jamaica and return them to Canada, how would the society be able to effectuate that decision?
[54] What would be the legal ramifications of the father’s intervention, if he were to step in and take physical control of his children? What is the law of Jamaica as regards the rights of a foreign children’s aid society versus the rights of a biological parent?[^14] Can the society guarantee this court that the children are automatically entitled to board a plane and return to Canada, just because the society might believe this to be in the best interests of the children, regardless of the belief of the parents? What assurances does the society have that its counterpart in Jamaica would step in to assist the society? Even if its counterpart were to step in, what assurance is there that the children would eventually be returned to Canada, rather than being placed in Jamaican foster care? Even if this court were inclined to make an order permitting this experiment to take place, what is the remedy for a breach of this court’s order if the breach is committed by someone in a foreign jurisdiction? In the evidence presented to the court on this motion, there are no answers to any of these questions. The following case mirrors this court’s concern about such a foreign arrangement.
[55] The case of Children’s Aid Society of London & Middlesex v. C. (F.E.) 2001 Carswell Ont 4165 (Ont. S.C.J.), is a decision of Justice Grant Campbell. That case involved an application by the Ontario society to place the child with the father in New Brunswick, and it raised the issue whether the court in Ontario had jurisdiction to make such an order even though it would involve the removal of the child from Ontario. The court concluded it did have the authority to make such an order. However, in the course of the discussion about children being placed outside the jurisdiction of the Ontario courts, Justice Campbell had this to say, beginning at paragraph 54 [my emphasis]:
There is a great difference between transferring a child within one country where the violation of a court order may be punished under s. 127 of the Criminal Code and transferring a child completely away from the authority and control of Ontario and Canada. . . . [transferring a child out of Canada] constitutes a greater enforcement complication than a transfer between provincial geographic territorial jurisdictions of Ontario Societies, or even between the provinces of Canada.
[56] It is that very enforcement “complication” which concerns this court, particularly in the circumstances of this case and the worrisome dynamics of the various parties, including the grandmother, the mother and the father. In fact, in the circumstances of this case, to characterize the foreign jurisdiction issue as merely a “complication” would be a serious understatement.
The Society’s Plan is not in the Children’s Best Interests
[57] As I stated earlier in these reasons, subsection 37(3) of the Act sets out the various factors the court must consider in deciding what is in the best interests of children. A review those factors reveals that, arguably, the only factors which might weigh in favour of the society’s plan are paragraphs 3 and 6 of subsection 37(3).
[58] Paragraph 3 requires the court to consider the child’s cultural background. The mother and the father are both Jamaican. I am prepared to assume for the purpose of this motion that even though the children were born in Canada, the mother imported some of her Jamaican culture into the rearing of the children. That said, the younger two children have been in care for so long, and were brought into care at such a young age, that it is unlikely they have any meaningful ongoing connection to that culture.
[59] So.. was older when she was brought into care, so it is reasonable to expect she may have some connection to her mother’s heritage. However, So.. was born and raised in Canada, and she has been in society care since the age of five. Accordingly, it is reasonable to conclude that her ongoing connection to her mother’s culture would likely be fairly limited.
[60] Paragraph 6 requires the court to consider the child’s “relationships and emotional ties” to relatives, extended family, and members of the child’s community. The society would likely argue[^15] that there are extended family members in Jamaica and the opportunity to be raised by a grandmother is a “relationship” which cannot be lightly dismissed.
[61] However, paragraph 6 refers to the child’s “relationships” and the child’s “emotional ties” to these persons. The paragraph does not define what is meant by “relationship”. Does it mean a relationship which is inter-personal, in the sense of a meaningful connection, or a relationship which is merely biological? For the purposes of this motion I will give the word “relationship” its broadest interpretation and accept that it refers to both biological as well as inter-personal connections.
[62] Obviously, there is a biological relationship between two of the children and the grandmother. However, there is certainly no inter-personal relationship between the grandmother (or any of the grandmother’s family in Jamaica) and these children. It seems to me that if we examine this from the perspective of these children, the existence of an inter-personal relationship, that is, whether the children themselves are connected in a meaningful way to another person, is more significant than mere biology, particularly where the children have never met the kin and do not even know of the kin’s existence.
[63] And, in any event, there are clearly no emotional ties between the children and any of the biological kin individuals in Jamaica.
[64] As to the other factors in subsection 37(3), in my view there would be considerable risk of harm if the children were to be placed in Jamaica, especially since this society acknowledges that their parents should not be actively involved in the lives of the children, whereas the evidence in fact suggests the contrary, namely, this involvement is very likely to occur.
[65] In fact, the society was so convinced that the parents should not be involved in the children’s lives that, as I noted earlier, it had previously amended its current status review application to seek Crown wardship for the purpose of adoption for all three children. And following the Jamaican agency report on the father, this court would be even more concerned about the father’s active involvement in the children’s lives.
[66] I would qualify the foregoing reference to “parents” by noting that until fairly recently the society did not know the identity of So..’s father, so that it’s protection concerns were as against the mother and D.W., the biological father of Je.. and Ja.. However, since L.M. has come onto the scene and has begun having access to his daughter, the society has at least been able to depose that the first access visit which occurred on August 12, 2013 “appeared to be positive”.
[67] Since that society affidavit was prepared, I understand that L.M. has been visiting with So.. once each week. And while I recognize that it is still very early days insofar as this relationship is concerned, and certainly far too early to suggest that So.. might be able to eventually live permanently with her father, such an outcome is at least not out of the question. However, if So.. were to be removed from Canada, that removal would put an end to any possibility of father and daughter living together. This would run counter to paragraphs 5 and 6 of subsection 37(3).
[68] The society argues that the plan is in the best interests of the children because if they were all cared for by the grandmother, the three siblings would be together. At the same time, the society argues for the option that So.. could live with the aunt, while the other two children would live with the grandmother. Given the distance the aunt and the grandmother live from one another, and given the very modest financial resources of both of these individuals, splitting the children up in this way would defeat the society’s first argument.
[69] In a perfect world, it would be preferable that all three children live together and either maintain or grow their sibling relationship. However, these children have not been having the kind of frequent contact with each other that would likely result in emotional trauma if they were to eventually be placed in separate homes. This is because their contact is limited to very brief periods only, specifically, once each month. Given their young ages – particularly the younger two children – and the infrequency of their contact, it is reasonable to conclude that the loss the children would experience by being placed in separate homes, would be far less than if the children were older and had enjoyed a long-term connection with one another.
[70] Furthermore, the mere fact that the children might remain in Canada and be adopted, does not necessarily mean there is no possibility that they could be adopted by a single family. And even if they were to be adopted, for example, by two separate families, arrangements could conceivably be put into place which would facilitate sibling access.
[71] What all of this means is that there is no clear or discernible disadvantage to the children remaining in Canada, in terms of sibling access. In fact, for the reasons I have discussed, the sibling access issue might well be better addressed in Canada, rather than in Jamaica.
[72] Finally, there is additional risk of harm resulting from the real doubt that the proposed caregivers would be able to adequately feed and clothe the children, as well as provide for their other needs which involve the expenditure of money, including the provision of the children’s necessary health/medical needs.
[73] In weighing the various considerations under subsection 37(3), even if I were prepared to accept that there is some benefit to the children in respect of paragraphs 3 and 6 of that subsection, the prejudice to the children in terms of risk of harm – both emotional and physical – that would result from placing the children in Jamaica far outweighs any perceived benefit.
[74] The society argues that the Jamaica plan need not be permanent if it appears to the society workers after a few weeks that it is not unfolding in a way that meets the children’s best interests. This sounds a bit like, “let’s experiment, because there is really nothing to lose, and perhaps something meaningful to be gained”. While I wish to be clear that I am not suggesting the society is being cavalier in its approach to this matter, as these reasons reveal, I do conclude that the risks of this experiment are indeed significant. And in my view, unless there was a strong likelihood that the plan would succeed, the risks posed by this plan, which I have detailed in my discussion, significantly outweigh the benefits of this proposed Jamaican sojourn. In the particular circumstances of this case I would go further by concluding not only is there not a strong likelihood the plan would succeed but, rather, on the evidence presented on this motion, it would almost certainly fail.
[75] So.. in particular has been in the same foster home for more than a year and she is reportedly thriving in care. She has been attending the same school since the previous school year, and she has just begun grade one. She knows the teachers and doubtless has a number of friends at this school. The proposed plan would require that she be abruptly pulled out of school, away from the foster home where she is doing so well, to be completely uprooted at this formidable stage of her education and personal development and placed in a foreign country, in a school where she knows no one, in a home where she knows no one, and surrounded by individuals who are utter strangers to her. In the case of So.., she would indeed be a stranger in a strange land.
[76] The society argues that Crown wardship and adoption would necessarily result in the exact same thing occurring, namely, a removal from one family (the foster family) and one school, to another family and another school. However, that would only occur in circumstances where the removal was going to be to an adoptive home, to a place where she would almost certainly remain permanently. And, in any event, removal from one family to another within Ontario is a very different proposition than what the society is proposing in this motion. Here, the proposal is to remove a child from her placement, from her school and friends, indeed from the only country and culture she has ever known, all in furtherance of an experiment which, in my view, is an experiment that runs counter to the best interests considerations set out in subsection 37(3) of the Act.
Conclusion
[77] The society has put considerable effort and resources into the formulation of this plan. It has spent money hiring investigators to assess the possible caregivers in Jamaica. It is prepared to commit significant personnel resources, as well as the considerable further expenditure of funds in order to test drive this plan in Jamaica. I commend the society for its efforts in this regard and again, I emphasize that nothing in these reasons is to be taken as a criticism of either those efforts or the society’s bona fides.
[78] All of that said, in my view, the evidence makes it very clear that this plan is little more than wishful thinking on the part of the society. There are so many obstacles that stand in the way of this plan that it is simply not possible to conclude the plan is in the best interests of the children, or any of them.
[79] These children, and particularly the younger two children, have been in the society’s care well in excess of the statutory time limit. At the conclusion of argument on this motion I adjourned the matter to October 18, 2013. That date will be for a settlement conference, with all parties to file settlement conference briefs. Thereafter, unless the case is resolved in a manner acceptable to the parties and to the court, I will schedule it for the next trial Assignment Court.
Justice Robert J. Spence
September 16, 2013
[^1]: The children would continue to remain in the temporary legal care and custody of the society [^2]: Or a combination of the paternal grandmother and the paternal great aunt [^3]: There are two fathers of the three children. Neither father signed the Statement of Agreed facts, as the father of So.. was in default, and the father of the younger two children was not served with the society’s application, service having been dispensed with by court order. [^4]: The paternal grandmother of the two younger children, but not the biological grandmother of the oldest child, So.. [^5]: Per the society worker’s affidavit filed in support of this motion [^6]: Extracted from the investigator’s report [^7]: I will discuss in some greater detail the foreign jurisdiction issue later in these reasons [^8]: Per the society worker’s affidavit [^9]: I will have more to say about this issue later in my reasons [^10]: Quoted portions in this section of my reasons are from the report, rather than the exact words stated by the grandmother herself – unless otherwise noted [^11]: Grandmother referred to it as “family land” [^12]: See the discussion in the following section of these reasons in respect of this issue [^13]: Although, given their ages, certainly much less of a culture shock for the two younger children [^14]: Or step-parent in the case of So.. [^15]: The society did not in fact make this argument in reference to paragraph 6 of subsection 37(3), but in assessing the merits of the society’s motion, I am attempting to put the society’s case in the strongest possible light