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 45(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 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 on publication of identifying information.

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) 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) Offence and penalty.

A person who contravenes subsection 45(8) (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.: Windsor FO-05-000454-0003

Date: 2014-04-10

Ontario Court of Justice

Between:

Windsor-Essex Children's Aid Society Mark L. Hurley, for the Applicant

Applicant

— And —

T.B., M.D. and D.D. Michael D. Frank, for the Respondent Ursula Miletic, for the Respondent

Respondents (D.D. not present, in default)

Gerri Lynn Wong, for Children's Lawyer legal representative for the children, H.S.D. and J.P.D.

Heard: 31 March 2014

JUSTICE B.M. TOBIN

ENDORSEMENT

1: INTRODUCTION

[1] The society moves within a status review application, pursuant to subsection 64(8) of the Child and Family Services Act, R.S.O. 1990, c. C-11, as amended, for an order varying my order of 14 March 2012 (the "14 March 2012 order"). By that order, the four children who are the subject of this case were placed in the care of the respondent mother subject to terms of supervision. The request by the society on this motion is to place the two older children in the temporary care of their father, the respondent Mr. M.D., subject to terms of supervision and the younger two children in the temporary care of the society.

[2] The society is supported on this motion by the respondent, Mr. M.D.

[3] The respondent mother, supported by counsel for the Children's Lawyer, opposes the relief sought.

[4] This motion was brought by the society very shortly after it received hair follicle test results conducted with respect to the respondent mother. The test was positive for cocaine and cannabinoids.

[5] The central issue on this motion is whether the 14 March 2012 order should be varied as requested by the society because the respondent mother tested positive for drug use.

[6] For the reasons that follow, I find that it is not in the best interests of the children to remove them from the care of the respondent mother.

2: THE FACTS

2.1: The Children and Parents

[7] There are four children who are the subject of this motion: H.S.D., born [...], 2001, J.P.D., born [...], 2003, D.M.D., born [...], 2006 and L.M.D., born [...], 2008.

[8] The respondent, Ms. T.B., is the mother of all four children.

[9] The respondent, Mr. M.D., is the father of H.S.D. and J.P.D.

[10] The respondent, Mr. D.D., is the father of D.M.D. and L.M.D.

2.2: The Child Protection Proceeding

[11] All four children were found to be in need of protection by the Honourable Justice Douglas W. Phillips on 22 October 2010 under subclause 37(2)(b)(i) and clause 37(2)(i) of the Child and Family Services Act. The reasons for finding the children in need of protection were as follows:

(a) The mother's arrest in February 2009 and being unable to care for the children;

(b) The effects on the children from conflict between the respondent mother and the respondent father, Mr. M.D., regarding custody and access issues; and

(c) L.M.D.'s positive meconium test for cocaine.

[12] After a 21-day hearing related to disposition, I made the 14 March 2012 order that placed all four children in the care of the respondent mother subject to supervision by the society for a period of 12 months and subject to terms and conditions. The respondent, Mr. M.D., was granted defined access with H.S.D. and J.P.D. The respondent, Mr. D.D., who was then and continues to be incarcerated, was to have no access.

2.3: The Status Review Application

[13] The society had the status review application issued on 13 February 2013 in respect of the four children. The finding sought is that the children remain in need of protection pursuant to subclause 37(2)(b)(i). The disposition sought is that the children remain in the care of their mother and that H.S.D. and J.P.D. continue to have access with their father.

2.4: The Hair Follicle Test

[14] Beginning in September 2013, the society tried a number of times to have the respondent mother undergo a hair follicle test. Finally, on 15 January 2014, a sample of the respondent mother's hair was collected. The sample was received by Motherisk Laboratory, which is located in Toronto, on 28 January 2014.

[15] On 3 March 2014, the society received the results of the test. The test results were "positive for cocaine and cocaine metabolites (benzoylecgonine and norcocaine) the presence of norcocaine suggests habitual use of the mother substance (cocaine). The sample was also positive for THC (Cannabinoids)." [1]

[16] The mother denies the use of cocaine. She admits using marihuana last fall, although not while in a care-giving role. She is prepared to take another test. Her evidence is that she had not showered and there was hairspray on her hair on the day the drug test was taken.

[17] The society also based its request to change the 14 March 2012 order on the respondent mother's lack of follow-through with certain services required for the children, her use of physical discipline and allowing the children to have contact with Mr. D.D. The society's evidence is also that she failed to attend appointments for assessments being conducted by Dr. Lewicki and Dr. McGrory.

[18] In argument, counsel for the society acknowledged that the receipt of the positive drug test triggered the motion. The society had been aware for a number of months that the respondent mother had not followed through with certain services for J.P.D., may have spanked the children and had allowed contact with Mr. D.D. The society also was aware before the receipt of the drug test results that the respondent mother did not attend appointments for assessments being conducted by Dr. Lewicki and Dr. McGrory.

3: LEGAL CONSIDERATIONS

[19] All four children were placed in the care of the mother by the 14 March 2012 order. That placement was ordered because it was then adjudicated to be in the best interests of the children: See subsection 57(1) of the Act.

[20] The society brought its status review application before the expiry of that order: See clause 64(2)(b) of the Act.

[21] Subsection 64(8) allows a court to make a temporary order changing the 14 March 2012 order pending the hearing of the status review application. This subsection is formulated as follows:

(8) Interim care and custody. — If an application is made under this section, the child shall remain in the care and custody of the person or society having charge of the child until the application is disposed of, unless the court is satisfied that the child's best interests require a change in the child's care and custody.

[22] In Children's Aid Society of Algoma v. Sandra S., 2010 ONCJ 332, Justice John Kukurin described the onus on the party seeking to change a child's placement under subsection 64(8) at paragraph [16] as follows (footnote omitted):

[16] Subsection 64(8) does not create a presumption in favour of whomever has care and custody of a child. It goes further than a presumption. The use of the words "shall remain" implies that the status quo must remain in effect. The only exception is where the court is satisfied that the best interests of the child requires a change in that status quo. In my view, the use of the word "require" in this provision is not accidental. "Require" is a fairly strong word. It denotes considerably more than being merely desirable. It carries the connotation of necessity or obligation. Moreover, the criterion for determining that there is a requirement for a change is the best interests of the child. Whenever this test is to be applied under the statute, the person making the determination must take a number of listed considerations into account.

[23] The onus falls on the party seeking to change the status quo. The standard of proof is on a balance of probabilities.

[24] In Children's Aid Society of Toronto v. Samantha G., 2011 ONCJ 746, Justice Ellen B. Murray interpreted Justice Kukurin's analysis of subsection 64(8) as "highlighting the priority which [it] gives to one best interest factor — the importance of maintaining continuity of care for a child — when a party wishes to disturb the status quo established by a final order before trial of a status review application." I agree with this interpretation.

[25] I also agree with the following comments of Justice Murray, in the Children's Aid Society of Toronto v. Samantha G. decision:

[22] Justice to the parties and the child requires that such a decision be made very carefully, only when it is clearly necessary to do so before trial. This prevents unnecessary changes in a child's custody, and disruption of hard-won stability.

[23] In my view, on such motions, the moving party must first establish that there has been a material change in circumstances related to the child's best interests. If there has been such a change, then it must be demonstrated that it is necessary, in protecting the child's best interests, to change the existing order before trial of the status review application. The Act sets out certain factors, in addition to continuity of care, which may be relevant in assessing a child's best interests. [2]

4: ANALYSIS

4.1: Material Change in Circumstances

[26] Has there been a material change in circumstances affecting the best interests of the children? I find that there has.

[27] The 12 March 2012 order requires the respondent mother to ensure the attendance of the children at counselling deemed necessary by the society. Based on this provision, J.P.D. was required to undergo a psychological assessment at Windsor Regional Children's Centre. After bringing J.P.D. to an initial appointment, the mother did not bring him to a second scheduled appointment nor a follow-up to reschedule. As a consequence, the assessment was not completed.

[28] The respondent mother is required to participate in parenting capacity assessments with Drs. Lewicki and McGrory. There has been considerable delay in meeting with these assessors. This delay is due to her failure to attend at appointments and follow-up when expected.

[29] The hair follicle test, on its face, indicates the respondent mother's use of cocaine and THC.

[30] The respondent mother has allowed the children telephone contact with Mr. D.D. despite the specific term in the existing order that provides he is not to have access.

[31] These factors, when considered collectively, demonstrate there has been a material change in circumstances that affect the best interests of the children. Each requirement not complied with was originally ordered in furtherance of the respondent mother's meeting the best interests of the children. These were matters that the respondent mother was expected to undertake.

[32] Society counsel also sought to have the material changes in circumstance based on other factors: the respondent mother failed to follow through in a timely manner with drug testing and has used inappropriate physical discipline upon the children.

[33] I find that these two factors do not give rise to there being a material change in circumstances.

[34] The respondent mother explained her delay in attending to the drug testing in part on the basis of her meeting the basic day-to-day needs of her children.

[35] The evidence with respect to the use of physical discipline comes through the children. It is equivocal at best. The respondent mother acknowledged some physical discipline of the children but not to an extent that their best interests are adversely affected.

4.2: Is a Change in Placement Necessary?

[36] Are these changes in circumstances such that the best interests of the children require that they be removed from the care of the respondent mother, with H.S.D. and J.P.D. being placed with their father and Donald and Lynda May being placed in society care? In other words, do the best interests of the children require a change in their placement pending the trial of this matter?

[37] I find that the best interests of the children do not require a change in their placement. Their best interests can be met by imposing additional terms of supervision upon the respondent mother pending resolution of this matter.

[38] The drug test results are most concerning. The information of Joey Gareri of Motherisk given to society child protection worker, Leslie Ross, is that these tests results indicate the mother uses cocaine frequently or uses sporadically but very intensively. He also provided information that it is unlikely that these were false test results. However, the test results together with Ms. Ross' and Mr. Gareri's evidence of their interpretation have not been tested by cross-examination. Other than the test results, it is not clear what if any further information was provided by the society worker when she spoke with Mr. Gareri such that he was able to provide the information he did. It is not clear on the evidence whether the respondent mother's explanation was given to him.

[39] As well, the drug test results must be considered in the context of other evidence provided on this motion:

(a) The respondent mother denies using cocaine and, on the day the hair sample was collected, her hair was not clean and had hairspray on it. Her evidence has not been tested on cross-examination.

(b) The society's evidence is that the respondent mother has "ensured the children's basic needs were met at all times and followed through with medical recommendations." [3]

(c) The society workers have been attending at the respondent mother's home on an announced and unannounced basis throughout the term of the existing order. When visiting the home, the workers observed it to be appropriate and the children appropriately cared for.

(d) The society workers did not observe any indicators that the mother was using marihuana or other drugs while in a caregiving role.

(e) The society workers have noted the respondent mother has co-operated with the society and has been open to new programs and ideas for behaviour management of the children.

(f) School officials have not reported behaviour on the part of the respondent mother that might suggest she is using drugs. The vice-principal of the school where the children attend informed the society worker that there were "no concerns with attendance, hygiene or lunches; [and he] agreed to contact [the society worker] if any concerns should arise." [4]

[40] Society counsel argued that the respondent mother's failure to follow up with Windsor Regional Children's Centre and in not making or keeping appointments with the assessors could be connected to or explained by her drug use. This is speculation and has not been proved on this record on the balance of probabilities. The respondent mother's explanation is that her responsibilities for the care of four children, three of whom have special needs, made it difficult to meet or make all of the appointments.

[41] The evidence, including that of the society, discloses the respondent mother is meeting the basic needs of the children who have been with her uninterrupted since at least May 2009. The court must consider the risk to the children as revealed in the evidence and direct a measured and proportional response to it when addressing their best interests. The society has not demonstrated that it is in the best interests of the children that they be removed from her care at this time. I find that to do so would be intrusive and disruptive when taking into account the untested by cross-examination drug test results and the evidence of the care the children are receiving from the respondent mother.

[42] I am therefore satisfied that the best interests of the children do not require a change in their placement pending the resolution of the status review application or the court receiving further and better evidence regarding the mother's drug use.

[43] What is required are specific terms of supervision to address facts that give rise to the change in circumstances. The society has put forward evidence regarding the mother's actions (the possible drug use) and inactions (failure to participate in some services) that need to be addressed by the court: See Children's Aid Society of Algoma v. Sandra S., supra, paragraph [18].

[44] On the evidence, the following additional terms of supervision shall apply to the respondent mother:

(a) Without delay, she shall submit to such random and scheduled drug testing, including hair follicle testing as may be arranged by the society;

(b) The society shall attend at the respondent mother's home on an announced and unannounced basis at a minimum of two times per week. These visits shall occur at times when the children are and are not scheduled to be in the mother's care;

(c) The respondent mother shall forthwith meet with Dr. McGrory as required by him so that he may complete the parenting capacity assessment that he is undertaking. The society shall provide assistance to the respondent mother in scheduling and ensuring her attendance with Dr. McGrory; and

(d) The respondent mother shall not allow the children access, including telephone access, to Mr. D.D. until further order of the court.

[45] Had I ordered the children be removed from the care of the mother, the respondent Mr. M.D.'s evidence would support placement of H.S.D. and J.P.D. with him subject to terms and conditions.

5: ORDER GRANTED

[46] The 14 March 2012 order shall be amended by adding to it the terms set out in paragraph 44, (b), (c) and (d) above.

Released: 10 April 2014

Justice Barry M. Tobin

Footnotes

[1] Affidavit of Andrea Taylor, sworn on 10 March 2014, (continuing record, vol. 10, tab 15). This quote is contained in the Erie-St. Clair Clinic correspondence dated 26 February 2014 under the signature of Dr. P. Farago, M.D., Medical Review Officer. The Motherisk results were attached to the letter.

[2] See subsection 37(3) of the Child and Family Services Act.

[3] See the affidavit of Andrea Taylor, sworn on 10 March 2014, at par. 22 (C.R., vol. 10, tab 15).

[4] See affidavit of Andrea Taylor, sworn on 10 March 2014, at par. 60 (C.R., vol. 10, tab 15).